Dangerous Dog: Related Cases
|Kringle v. Elliott
|301 Ga.App. 1, 686 S.E.2d 665 (Ga.App.,2009)
The plaintiff, on behalf of her then seven-year-old son, brought an action against the defendant Elliot for injuries the child sustained resulting from a bite by defendant's golden retriever. The trial court granted the defendant's motion for a directed verdict reasoning that because this was the dog's first bite of a human, there was there was no cause of action under Georgia's “first bite” rule. The appellate court found that the excluded evidence did not indicate the owner had any reason to suspect that the dog had a propensity to bite and thus, the trial court did not abuse its discretion in granting defendant's motion or directing a verdict.
|Krzywicki v. Galletti
|27 N.E.3d 991 (Oh Ct . App., 2015)
|Appellant commenced an action against defendant boyfriend, the owner of the dog that bit her, and his business, which she held was strictly liable for the injuries she suffered, where the attack occurred. The claims against defendant boyfriend were dismissed with prejudice. A jury verdict, however, found that although the business was a “harborer” of the dog, appellant was barred from recovery because she was a “keeper of the dog in that she had physical care or charge of dog, temporary or otherwise, at the time of the incident.” Appellant appealed, raising seven assignments of error for review. In addressing appellant’s claims, the Ohio Court of Appeals held that the status of an individual as an owner, keeper or harborer was relevant when deciding if an individual was barred from availing him or herself of the protections afforded by liability statutes. The court of appeals also ruled that the trial court properly gave the jury instruction and that the jury’s verdict was not “defective.” Further the court held that the testimony established at trial demonstrated that appellant had a significant relationship with the dog and that there was competent and credible evidence presented at trial to support the business’s position that appellant exercised some degree of management, possession, care custody or control over the dog. The judgment of the lower court was therefore affirmed with Judge Kathleen Ann Keough concurring and Judge Melody Stewart concurring in judgment only.
|Lachenman v. Stice
|838 N.E.2d 451 (Ind.App.)
In this Indiana case, a dog owner whose dog was attacked and killed by a neighbor's dog, brought an action against the neighbor to recover veterinary bills and emotional distress damages. The court of appeals affirmed the trial court's grant of partial summary judgment in favor of defendant-neighbor, finding that however negligent the neighbor's behavior might have been in controlling his dog, his actions did not constitute outrageous behavior so as to give rise to claim for intentional infliction of emotional distress. The court also refused to extend the bystander rule under plaintiff's negligent infliction of emotional distress claim to include the dog owner's witnessing the death of his dog.
|Lawrence v. North Country Animal Control Center, Inc
|126 A.D.3d 1078, 5 N.Y.S.3d 558 (N.Y. App. Div. 2015)
|Plaintiffs adopted a basset hound from animal control despite the fact that the dog had been turned over by a prior owner to be euthanized. The basset hound, who attacked the plaintiffs on three different occasions without injury, attacked plaintiffs' other dog. When one plaintiff tried to separate the dogs, the basset hound attacked him. Defendant removed the basset hound from the home that same day and refused to return the dog to the plaintiffs. Plaintiffs commenced this action seeking to recover damages for injuries, asserting causes of action for, among other things, negligence, fraudulent misrepresentation, products liability and intentional infliction of emotional distress. On appeal from the New York Supreme Court decision, the appellate court found that under the circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants' misrepresentation and whether plaintiffs could have discovered the dog’s dangerous nature with due diligence. The appellate court also found that the contract clause at issue did not preclude plaintiffs from recovering for negligence because it did not “advise the signor that the waiver extended to claims that might arise from the defendant's own negligence.” The appellate court did, however, find that plaintiffs did not satisfy the “rigorous ... and difficult to satisfy requirements for a viable cause of action for intentional infliction of emotional distress.” The court also found that sanctions were not warranted.
|Legro v. Robinson
|328 P.3d 238, aff'd but criticized (Colo.App., 2012)
While participating in a bicycle race on Forest Service lands, plaintiff (Legro) was attacked seriously injured by defendants' (Robinsons') dogs. The Robinsons held a grazing permit from the Forest Service for the land where the injury occurred and the dogs were acting as predator control dogs there. On appeal, this court agreed with the lower court that the Robinsons were landowners for purposes of the Premises Liability Act (PLA) and this did in fact abrogate the plaintiffs' common law claims. However, as a matter of first impression, the court determined that the PLA does not abrogate the statutory dog bite claim. As to the predator control dog exception, the court found that while the dogs were working as predator control dogs, the issue is whether the dogs were on property "under the control of" the Robinsons at the time. Under these facts, a grazing permit, without more, does not establish control for the predator dog exception of the dog bite law.
|Lesher v. Reed
|12 F.3d 148 (8th Cir. 1994)
Seizure of pet dog violated Fourth Amendment where police acted unreasonably in going to canine police officer's house to seize the dog after the dog bit a child.
|Lewis v. Chovan
|Slip Copy, 2006 WL 1681400 (Ohio App. 10 Dist.)
This Ohio case raises the issue of whether an employee of a pet grooming establishment is a "keeper" under state law, thereby preventing the application of strict liability for injury. The employee was bitten by dog while attempting to assist the establishment's owner and another employee in giving the dog a bath. She then brought an action against dog's owners asserting, among other things, that the owners were strictly liable for her injuries. The court relied on its previous definition of the word "keeper" in the context of R.C. 955.28(B) as "one having physical charge or care of the dogs." Based upon this precedent, the court found that a person who is responsible for exercising physical control over a dog is a "keeper" even if that control is only temporary.
|Loban v. City of Grapevine
|Not Reported in S.W.3d, 2009 WL 5183802 (Tex.App.-Fort Worth,2009)
In this unpublished Texas case, Appellant Jason Loban appeals the trial court's judgment awarding appellee City of Grapevine $10,670.20 in damages. In 2006, Appellant's dogs were declared "dangerous" under the City's municipal ordinance. On appeal, Appellant argued that the trial court's award of $10,670.20 in damages to the City should be reversed because the City did not plead for monetary relief, the issue was not tried by consent, and there was no evidence to support the award. This Court agreed. In finding the monetary judgment void, the Court observed that the City did not put any request for a monetary award in its pleadings and there was no evidence in the record of the amount of the fine.
|Lockett v. Hill
|51 P.3d 5 (Or.App.,2002)
In this Oregon case, plaintiff sued defendant after defendant's pit bulls mauled plaintiff's cat to death while they were running loose on plaintiff's property. The trial court found that defendant was negligent and awarded plaintiffs $1,000 in compensatory damages but denied plaintiffs' claims for negligent infliction of emotional distress and loss of companionship. Plaintiff sought appeal of the trial court's denial of damages for negligent infliction of emotional distress (NIED) and loss of companionship. The appellate court affirmed, holding that the cat owner was not entitled to recover damages for emotional distress.
|Lowry v. City of San Diego
|818 F.3d 840 (9th Cir. Apr. 1, 2016)
|Plaintiff in this case filed suit against the City of San Diego after she was attacked and bit by one of the police dogs. Lowry alleged that the City’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of her Fourth Amendment rights against unreasonable seizures. The court remanded the case back to the lower court, holding that a reasonable jury could find that the use of the police dog against Lowry was an intrusion on her Fourth Amendment rights. The court maintained that the officers had reason to believe that letting the dog into Lowry’s office “off-lead” had the potential of creating severe harm. The court also noted that Lowry was not attempting to evade or resist arrest and therefore letting the dog “off-lead” may not have been reasonable. Reversed and remanded for further proceedings.
|Lundy v. California Realty
|216 Cal.Rptr. 575 (Cal.App.4.Dist.)
The Court of Appeals held that an owner of a dog may be held liable for injuries inflicted by it on another person without any showing the dog had any especially dangerous propensities or that the owner knew of any such dangerous propensities. However, to impose liability on someone other than the owner, even a keeper, previous knowledge of the dog's vicious nature must appear. Aside from the rental agreement, the property owners knew nothing whatever about the dog. Thus, the facts before the trial court fell far short of creating a triable issue of fact as to defendant property owners' knowledge of any dangerous propensities on the part of the tenant's dog. "Neither do we believe judicial notice may be taken that all German shepherds are dangerous. Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder."
|Malpezzi v. Ryan
|28 A.D.3d 1036
In this New York case, the plaintiff brought an action to recover for a dog bite sustained when she was walking on a local bike path. The court noted that it has consistently held, “a plaintiff may not recover for injuries sustained in an attack by a dog unless he or she establishes that the dog had vicious propensities and that its owner knew or should have known of such propensities” Here, defendant and his girlfriend testified, without contradiction, that they did not experience any problems with the dog prior to the incident with Malpezzi. Specifically, each testified that Oreo did not display any act of aggression prior to biting Malpezzi. In opposition, plaintiff primarily relies upon the purportedly vicious nature of the attack, the fact that Oreo allegedly was restrained while on defendant's property and Oreo's specific breed. However, the court observed that where, as here, there is no other evidence even suggesting that defendant knew or should have known of Oreo's allegedly vicious propensities, consideration of the dog's breed is irrelevant. As such, Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.
|Mann v. Regan
|948 A.2d 1075 (Conn.App.2008)
The plaintiff (Mann) brought this action to recover damages for injuries she sustained to her face when she was bitten by a dog owned by the defendant (Regan). The incident occurred when the defendant’s dog was being cared for by the plaintiff at her house while the defendant traveled out of state. With regard to defendant's tacit admission challenge, this court found that defendant’s silence in response to her daughter’s statement, “Well, mom, you know he bit you,” was within the trial court’s discretion to admit as a hearsay exception. As to the jury instructions, this court was not persuaded that there is a meaningful distinction between the words “vicious” and “dangerous” as used in the context of an action stemming from a dog bite.
|Mansour v. King County
|128 P.3d 1241 (Wash.App. Div. 1,2006)
King County Animal Control issued an order requiring that Mansour to remove his dog from King County or give her up to be euthanized. On appeal, Mansour argued that the Board hearing violated his due process rights. The court of appeals agreed, finding that in order for Mansour, or any other pet owner, to effectively present his case and rebut the evidence against him, due process requires that he be able to subpoena witnesses and records.
|Marek v. Burmester
|37 A.D.3d 668, 830 N.Y.S.2d 340, 2007 N.Y. Slip Op. 01527
In this New York case, a bicyclist was injured after allegedly being chased and attacked by defendant's two dogs. The plaintiff-bicyclist sued to recover damages for his injuries. The Supreme Court , Putnam County, granted a defense motion for summary judgment, and the bicyclist appealed. The Supreme Court, Appellate Division, held that a genuine issues of material fact existed as to whether defendants had constructive notice of the dogs' proclivity to chase bicyclists on the roadway and as to whether those actions put others at risk of harm.
|McAllister v. Wiegand
The plaintiff, a 55-year old woman and recent acquaintance of the defendants, was bitten on the cheek by the defendant's bull mastiff dog, resulting in a spreading infection and loss of all her teeth. The plaintiff was an invited guest in the defendant's home where she had been on 3-4 prior occasions. There was a question over whether the incident arose when the plaintiff startled the dog from sleep by petting it while bending over it, or whether the dog had just awakened when it was petted and bit her. The court found that dog and plaintiff were familiar with each other and there was nothing provocative that should have caused the dog to retaliate. Thus according to Ontario's Dog Owner Liability Act, where owners are strictly or absolutely liable for their dogs' injuries to others, the defendants were strictly liable to the plaintiff for her injuries.
|McBride v. Orr
|466 A.2d 952 (N.H., 1983)
In this New Hampshire case, defendant animal control officer killed plaintiff’s dog believing that it was in pursuit of a deer. Defendant claimed immunity pursuant to a state statute. The Court reversed and remanded for a determination of damages for the plaintiff. The Court went on to state that the purpose of the statute was not to authorize defendant’s killing of plaintiff’s dog when the dog was no longer pursuing the deer.
|McBride v. XYZ Ins.
|935 So.2d 326 (La.App. 2 Cir. 2006)
In this Louisiana dog bite case, a guest individually and on behalf of child brought an action against the dog owner to recover for bites. The child's bites occurred while the guest and her child were visiting defendant's home after the child had been petting and hugging the dog (a fairly large Chow). The appellate court held that the adult guest's conduct of swatting the dog with a shoe after the dog had released the child's arm was not provocation and the defendant was strictly liable for the injuries. While the district court reasoned that the guest failed to use reasonable caution in reading the warning signs and provoked the dog by striking him after he had already released the child, this court found that the guest and her children entered the yard through the house, and she did not notice the signs. Moreover, both witnesses testified that events unfolded very fast; the record persuaded the court that Ms. McBride's conduct in swatting Smokey with a shoe was not an intentional provocation but a natural and inevitable reaction to seeing her child's arm in the dog's jaws.
|McNeely v. U.S.
|874 A.2d 371 (D.C. App. 2005)
|Defendant McNeely was convicted in a jury trial in the Superior Court of violating the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Act. On appeal, t he Court of Appeals, held that the Act did not deprive defendant of fair warning of the proscribed conduct, as the defendant here was required to know that he owned pit bulls in order to be convicted under the Act; and the prosecutor's improper comment was rendered harmless by the trial court's curative instructions.
|Mercado v. Ovalle
|973 N.Y.S.2d 171 (N.Y.A.D. 1 Dept., 2013)
In this New York case, plaintiff appealed the lower court's order granting defendants' motion for summary judgment in a dog bite case. Defendants, a grocery store and its owner, asserted that they did not own the two pit bulls that attacked plaintiff. The only evidence plaintiff presented showing defendants' ownership and control over the dogs were hearsay statements from the mechanic who operated the lot that the dogs guarded. The court found this evidence that defendants occasionally walked and fed the dogs insufficient to show that they "harbored" the dogs. Affirmed.
|Miles ex rel. Miles v. Rich
|347 S.W.3d 477 (Mo.App. E.D., 2011)
In this Missouri case, the plaintiff filed an action against defendant dog owner for damages after defendant's dog bit the plaintiff's child. Defendant dog owner then filed a third-party petition against the Humane Society of Missouri from which defendant had adopted the dog, seeking contribution under a theory of common law negligence. Defendant appeals the lower court's dismissal, specifically contending that the Humane Society breached 1) its duty to prevent the adoption of the dog by doing tests it knew would have identified the dog's dangerous propensity to bite ; and 2) its duty to fully inform defendant of the risks of keeping a dog who has bitten in the past. The appellate court found that the Humane Society did not own, possess, harbor or control the dog when it bit Ms. Miles; thus, it had no duty under common law negligence principles to prevent the harm.
|Miller v. Dep't of Agric.
|168 Conn. App. 255, 145 A.3d 393 (2016)
|The Plaintiff, Kim Miller, argued “a severe deprivation” of her rights when the Superior Court dismissed her appeal to prevent her dogs from being euthanized. Miller owned two Rottweiler dogs that attacked the victim Cynthia Reed, causing injuries to Reed's head, the back of her neck, and her back. An animal control officer issued two disposal orders to euthanize Miller’s dogs. The Defendant, Connecticut Department of Agriculture, then affirmed the orders and Miller appealed. The Superior Court also dismissed the appeal, and Miller appealed further to the Appellate Court of Connecticut. Here, Miller argues, among other things, that her Sixth Amendment rights to confront witnesses were violated when witnesses were not available for cross-examination. Plaintiff Miller also claims that there were procedural violations in the initial hearing because of lack of written rules that applied to dog disposal orders and claimed error when the hearing officer acted acted arbitrarily and capriciously by “interject[ing] his opinion” while questioning a witness. The Appellate Court held that: (1) the Uniform Administrative Procedures Act (UAPA) did not preclude the admission of statements from the victim and an eyewitness, even though the victim and witness did not testify at the hearing. The court reasoned that in administrative proceedings under the UAPA, evidence is not inadmissible solely because it constitutes hearsay, as long as the evidence is reliable and probative. Additionally, a party to an administrative proceeding under the UAPA is not required to call any particular witness. (2) A dog owner's appeal of disposal orders for a biting animal is not a criminal prosecution that invokes Sixth Amendment protections. The court reasoned that the issuance of a disposal order does not, by itself, trigger the imposition of a fine or prison term on the owner. Rather, by obviating the threat that dangerous animals pose to the public, the provision is remedial and civil in nature. The judgment of the trial court dismissing the plaintiff's appeal was affirmed.
|Moore v. Myers
|868 A.2d 954 (Md. 2005)
A twelve-year-old girl was running away from her neighbor's pit bull when she was struck by a car. The girl's mother brought claims on behalf of her daughter and the trial court granted summary judgment in favor of the neighbors on all counts and submitted the question of the driver's negligence to the jury. The Court of Appeals reversed in part holding questions of the dog owner's violation of county law, whether the fifteen year old son owed a duty to protect the girl from the dog, and whether actions by the son breached his duty to protect were all questions for the jury.
|Morawek v. City of Bonney Lake
|184 Wash. App. 487, 337 P.3d 1097 (2014)
|A woman filed a complaint with the Bonney Lake animal control authority after her neighbor’s dog killed her cat. The animal control officer served plaintiff with paperwork stating that his dog satisfied the definition of a dangerous dog under the Bonney Lake Municipal Code because the dog had killed a domestic animal without provocation while off his owner's property. Plaintiff appealed the designation to the police chief, the city hearing examiner, and the superior court; all of which affirmed the designation. The Washington Court of Appeals, however, held that the hearing examiner's finding that the owner's dog killed the neighbor's cat without provocation was not supported by substantial evidence, as required to uphold a dangerous dog designation, even though the “location” element of the dangerous dog designation was satisfied. The dangerous dog designation was therefore reversed.
|Morehead v. Deitrich
|932 N.E.2d 1272 (Ind.App.,2010)
Postal carrier sued landlord for negligence after tenant's dog bit her. The Court of Appeals affirmed summary judgment for defendant, holding that landlord did not have a duty to keep dog from biting postal carrier absent control over the property.
|Morgan v. Marquis
|50 A.3d 1 (Me., 2012)
After being bit in the face from a dog she was caring for, the plaintiff sued the dog's owner on the theories of strict liability, negligence and statutory, 7 M.R.S. § 3961(1), liability. The superior court granted summary judgment in favor of the defendant on all claims rejecting plaintiff's claim that pit bull dogs are inherently abnormally dangerous dogs. Finding insufficient evidence that the defendant knew his dog was likely to bite someone, the Supreme Judicial Court of Maine affirmed the lower court's decision on the strict liability claim. However, the court vacated the lower court's decision towards the negligence and statutory liability claim because genuine issues of material fact remained.
|Morsillo v. Migliano
|1985 CarswellOnt 786
The child plaintiff Morsillo was attacked and bitten by a neighbour's pet German Shepherd, which tended to 'bark savagely' at local children, had bitten once before, and was kept in a secure fenced yard and only taken out on a leash and choke-chain. The boy was playing cops and robbers with the owner's son on the owner's front lawn, while the owner's teenaged daughter was taking the leashed dog to the garage, when it escaped and attacked. No provocation of the dog was proven so the owners were found strictly liable under the Dog Owner's Liability Act (which abrogates scienter in that province) and also liable in negligence, with no contributory negligence by the plaintiff; the provincial Ontario Health Insurance Plan was entitled to recover the costs of the plaintiff's care from the defendants.
|Motta v. Menendez
|46 A.D.3d 685 (N.Y.A.D. 2 Dept., 2007)
This New York case arose following an incident that occurred on December 13, 2003, in which the appellant's two pit bull terriers entered the petitioner's property, and one of appellant's dogs ("Duke") attacked and injured the petitioner's pet dog. Following a special proceeding, the lower court determined that appellant's pit bull terrier named “Duke” was a dangerous dog and directed that it be destroyed. On appeal, the Supreme Court, Appellate Division found that the dangerous dog statute in effect on December 13, 2003, did not provide that one dog attacking another was conduct subject to the penalty of destruction (Agriculture and Markets Law former §§ 108, 121).
|Muela v. Gomez
|343 S.W.3d 491 (Tex.App.-El Paso, 2011)
Defendant Samuel Muela appeals a judgment for damages in the amount of $30,279.45 after plaintiff was attacked by a pit bull. Samuel contends that the evidence is legally insufficient to establish that he owned or possessed the pit bull and thus had no knowledge of its vicious propensities. The court concluded that there is no evidence that Samuel lived at his parents' trailer or owned the pit bull. Additionally, while Samuel did visit his parents' house to feed their pet dog, there was no direct evidence that he had ever seen the pit bull or knew of it. The court reversed and rendered judgment that Gomez take nothing against Samuel.
|Murga v. Yarusso
|215 A.D.3d 979, 187 N.Y.S.3d 762 (2023)
|This New York case involved action to recover damages for personal injuries sustained after defendant's dog allegedly ran into street and pushed the plaintiff pedestrian to the ground. The plaintiff described the dog as acting like a "big puppy" and the dog did not bite the plaintiff. In contrast, the defendant testified that the dog was chasing a ball in the defendant's front yard and did not actually go in the street. Rather, defendant asserts that plaintiff tripped upon seeing the dog in the yard. The complaint alleged that the defendant was negligent in failing to keep the dog under control and to take protective measures knowing of the aggressive propensity of the dog. The Supreme Court, Suffolk County granted the defendant-owner's motion for summary judgment. On appeal by the plaintiff, the plaintiff also suggested that defendant might be liable for throwing the ball which caused the dog to run in the street and knock the plaintiff down. The Supreme Court, Appellate Division, held that the plaintiff cannot recover under such a theory, as New York does not recognize a common-law negligence cause of action to recover damages for an owner's alleged negligence in the handling of a dog. The summary judgment was affirmed as the court found the owner was not liable to pedestrian for injuries sustained.
|Nava v. McMillan
|176 Cal.Rptr. 473 (Cal.App.2.Dist.)
In a personal injury action brought by a pedestrian who was hit by an automobile when she stepped into a street, the trial court dismissed the complaint against occupiers of land who maintained fenced dogs, which plaintiff alleged frightened her, causing her to step into the street. The Court of Appeal affirmed. The court held that the complaint failed to set forth facts giving rise to tortious liability on the part of the owners of fenced dogs, either on the theory of simple negligence or strict liability.
|Nelson v. Lewis
|344 N.E.2d 268 (Ill.App. 1976)
Toddler accidentally stepped on the tail of the owner's dog, and the dog responded by scratching her eye, causing permanent damage to the tear duct. The toddler sought damages under Ill. Rev. Stat. ch. 8, para. 366 (1973), arguing that her unintentional act did not constitute provocation. The court held that provocation under the statute referred to both intentional or unintentional acts. Because the dog was provoked by the unintentional act, he did not react viciously.
|Newport v. Moran
|721 P.2d 465 (Or.App.,1986)
In this Oregon case, an action was brought to recover damages for injuries after defendant's dog ran into plaintiff and knocked her down. The lower court entered a verdict against the defendant and she appealed. The Court of Appeals held that, after reviewing the evidence in the light most favorable to plaintiff, there was find no evidence that would put defendant on notice that the dog had a potentially dangerous propensity to run into people. Further, without some reason to foresee that the dog was likely to run into people, there was no common-law duty to confine the dog. The evidence also did not warrant submission of the case to the jury on the theory of negligence per se for violation of the dog control ordinance because this risk was not one anticipated by the ordinance. Reversed.
|Nutt v. Florio
|914 N.E.2d 963 (Mass. Ct. App., 2009)
This Massachusetts case involves an appeal of a summary judgment in favor of the landlord-defendant concerning an unprovoked dog attack. The dog, described as a pit bull terrier, was kept by a tenant of Florio's. The court found that, while the defendants cannot be held strictly liable by virtue the dog's breed, "knowledge of that breed and its propensities may properly be a factor to be considered in determining whether the defendants were negligent under common-law principles." Reviewing the record de novo, the court held that this question and the defendant's knowledge of the dog's propensities, created a genuine issue of material fact. The order of summary judgment for defendant was reversed and the case was remanded.
|O'MALLEY, v. COMMONWEALTH of Virginia
|785 S.E.2d 221 (Va.,2016)
|The appellant, John Dixon O'Malley was not charged with or convicted of any crime. However, he was issued a summons to determine whether his dog was dangerous pursuant to Virginia Code § 3.2–6540(A) and (B). The jury found O’Malley's dog to be dangerous under the Virginia Code due to attacking and injuring the dog of Randall Powell. O’Malley appealed the trial court decision to the Court of Appeals of Virginia. The Court of Appeals concluded that they did not have jurisdiction over the appeal due to being a court of limited jurisdiction. The Court relied on Virginia Code § 17.1–406(A) which provides that the Court of Appeals' appellate jurisdiction was limited to appeals from final criminal convictions. The Court of Appeals reasoned that no language in Code § 3.2–6540 characterized as criminal the proceeding to identify a canine as a dangerous dog. Therefore, the finding at the trial level that O’Malley's dog was dangerous was civil in nature. Because the finding was civil in nature, the Court of Appeals lacked subject matter jurisdiction over O’Malley’s appeal and the case was transferred to the Supreme Court of Virginia.
|Oak Creek Whitetail Ranch, L.L.C. v. Lange
|326 S.W.3d 549 (Mo.App. E.D., 2010)
A Missouri statute places liability on a dog owner where such dog kills or maims a sheep or "other domestic animal" of another. On December 10, 2006, three dogs of Defendant Glendon Lange entered Oak Creek’s deer breeding farm and killed 21 of Oak Creek's "breeder deer." The Missouri Court of Appeals, Eastern District, disagreed with the trial court, finding that "domestic" should have been interpreted by the "plain meaning" of the word, which therefore includes Oak Creek’s breeder deer.
|Ott v. Pittman
|463 S.E.2d 101 (S.C.App.,1995)
In this South Carolina case, a dog owner brought a negligence action against a hog farmer who shot two of the owner's champion "Treeing Walker Coonhound" dogs. The farmer counterclaimed, alleging damages for the dogs' action and malicious prosecution. The lower court ordered judgment for the dogs' owner (Ott) in the amount of $19,800, finding Pittman 90% liable. On the farmer's appeal, this court upheld the $19,800 award, finding sufficient support based on expert testimony about the specific qualities of the breed.
|Panattieri v. City of New York
|53 Misc. 3d 865, 37 N.Y.S.3d 431 (N.Y. Sup. Ct. 2016)
Ceasar, a mixed breed dog, was seized by police after he killed another dog and injured the other dogs’ owner. Petitioners, Kristina & Douglas Panattieri, owned Ceasar and demanded his return to their custody. They also challenged the determination by Respondent, Department of Health & Mental Hygiene (DOHMH), to execute Ceasar pursuant to the New York City Health Code (24 RCNY) § 161.07. The Petitioners argued that Ceasar’s execution would be unconstitutional under the City Code because it was preempted by the state statute, Agriculture & Markets Law § 123.The Supreme Court, New York County, denied their petition and held that the New York City Health Code was not preempted by the state statute. The Court reasoned that the Agriculture and Markets Law § 107(5), which governed licensing, identification, and control of dogs, expressly allowed municipalities to enact their own Codes governing dangerous dogs. However the City Codes were to incorporate standards that were as or more protective of public health and safety than those set forth in the state statute. The New York City Code met the requirement and was therefore not preempted by state law.
|Parker v. Parker
|195 P.3d 428 (Or.App.,2008)
Plaintiff and his 12 year-old quarter horse were visiting defendant at defendant's property when defendant's dog rushed at the horse causing it to run into a steel fence. The horse suffered severe head trauma, which necessitated its later euthanization. Plaintiff filed suit for damages asserting liability under common law negligence and O.R.S. 609.140(1) - the statute that allows an owner to recover double damages where livestock is injured due to being injured, chased, or killed by another person's dog. The appellate court agreed with plaintiff that O.R.S. 609.140(1) creates an statutory cause of action independent from negligence. Further, the court found that plaintiff fell within the class of persons the statute aims to protect because the legislature did not intend to limit the statute's application to property owned by the livestock's owner.
|People v. Beam
|244 Mich.App. 103 (2000)
Defendant was charged with owning a dog, trained or used for fighting, that caused the death of a person and filed a motion to dismiss the case on the grounds that M.C.L. § 750.49(10); MSA 28.244(10) was unconstitutionally vague. The court granted defendant's motion, finding the terms "without provocation" and "owner" to be vague, and dismissed the case. The prosecutor appealed, and the Court of Appeals held that statute was not unconstitutionally vague. Reversed.
|People v. Beauvil
|2008 WL 2685893; 872 N.Y.S.2d 692 (Table), (N.Y.Just.Ct.,2008)
This New York case came before this Court after the District Attorney refused to prosecute the case. The complaintant alleged that on April 16, 2008, he was walking down a public sidewalk when a loose dog, later identified as belonging to the defendants, ran up to and bit the complainant on the hand. Police were contacted and a complaint was made to the Village of Westbury Attorney who then advised the complainant to file a formal complaint with the Nassau County District Attorney's office. The District Attorney's office declined to prosecute and instead suggested that the Village handle the matter. This Court held that it has no jurisdiction to hear the misdemeanor charge stemming from the violation of Agriculture & Markets Law § 121 (but then did list the other avenues available for the complaintant). This Court, sua sponte, also held that the Agriculture & Markets Law § 121, as applied to Nassau County Village Justice Courts, is unconstitutional. This was due to the fact that Village Courts have no jurisdiction (or ability, as pointed out by the court) to hear misdemeanors.
|People v. Berry
|1 Cal. App. 4th 778 (1991)
In a prosecution arising out of the killing of a two-year-old child by a pit bulldog owned by a neighbor of the victim, the owner was convicted of involuntary manslaughter (Pen. Code, § 192, subd. (b)), keeping a mischievous animal (Pen. Code, § 399), and keeping a fighting dog (Pen. Code, § 597.5, subd. (a)(1)). The Court of Appeal affirmed, holding that an instruction that a minor under the age of five years is not required to take precautions, was proper. The court further held that the trial court erred in defining "mischievous" in the jury instruction, however, the erroneous definition was not prejudicial error under any standard of review. The court also held that the scope of defendant's duty owed toward the victim was not defined by Civ. Code, § 3342, the dog-bite statute; nothing in the statute suggests it creates a defense in a criminal action based on the victim's status as a trespasser and on the defendant's negligence.
|People v. Flores
|216 Cal. App. 4th 251, 156 Cal. Rptr. 3d 648 (Cal.App. 1 Dist.), review denied (Aug. 21, 2013)
Defendant Flores appeals his conviction under Penal Code section 399 for allowing a " mischievous animal" owned by him to cause serious injury to another person. In this case, defendant's pit bull dog, "Blue,"attacked defendant's almost 90-year old neighbor on his own property causing deep injuries to his leg. Blue had been previously involved in three other incidents where he either tried to attack other dogs or acted aggressively toward other humans. As a result of these incidents, Sonoma County officials issued defendant a issued a potentially dangerous animal warning. On appeal, defendant argued that there was insufficient evidence that he acted without ordinary care in keeping his dog and that the victim-neighbor did not suffer a serious injury as defined by statute. The court found both of these arguments without merit. While defendant suggested that he acted with "ordinary care" by keeping the dog tethered and chained outside on the day of the incident, the court found the evidence showed Blue had broken free in the past and had "massive strength." Further, even though the potentially dangerous dog designation by the county did not mandate that Blue be kept inside or in a secure enclosure, the ordinance language provides this requirement. Leaving a dog with a history of unprovoked attacks chained next to a public sidewalk in a residential neighborhood supported the jury's conclusion that defendant did not act as reasonably careful person would in the same situation. As to the serious bodily injury claim, the court noted that although the law does not define the term, there was substantial medical evidence to support the jury's determination. Affirmed.
|People v. Jornov
|65 A.D.3d 363, 881 N.Y.S.2d 776 (N.Y.A.D. 4 Dept.,2009)
This New York case stems from an attack on Philip Mueller and his dog by Defendant-Appellant Jornov's "two pit bull-terrier mixed breed dogs.” During proceedings in City Court, the court determined that defendant's dogs were dangerous dogs and directed that they be euthanized. The Supreme Court, Appellate Division, Fourth Department, affirmed the finding that the dogs were dangerous under Agriculture and Markets Law § 121 and Agriculture and Markets Law § 350 because there was clear and convincing evidence that the dogs attacked a companion animal and behaved in a manner that a reasonable person would believe posed a serious and imminent threat of serious physical injury or death. However, under the amended version of the statute, a judge or justice may not automatically direct humane euthanasia or permanent confinement of a dangerous dog where none of the aggravating circumstances are present.
|People v. Restifo
|--- N.Y.S.3d ----, 220 A.D.3d 1113, 2023 WL 7028284 (N.Y. App. Div. 2023)
|This is an appeal of a verdict to convict defendant of aggravated cruelty to animals. Defendant was walking his two pit bull dogs and allowed the dogs enough leash space to reach a pet cat resting on the steps of its owner’s porch. The cat’s owners, who were witnesses to this event, watched as the pit bulls mauled their pet cat. When the witnesses asked defendant to stop his dogs, defendant attempted to flee with his dogs still carrying the cat’s body in its mouth. The witnesses pursued and eventually, the dog dropped the deceased cat’s body. Defendant was charged with aggravated cruelty to animals and overdriving, torturing and injuring animals, and failure to provide proper sustenance. Defendant was convicted, and appealed the aggravated animal cruelty charge. Defendant argues that the verdict was not supported by sufficient evidence. The court here found that defendant was well aware that the dogs were aggressive, even keeping them separate from his young son because of their propensity to attack smaller animals. There was also testimony from another neighbor of defendant allowing his dogs to chase feral cats off her porch without stopping them, and testimony regarding defendant’s dog previously mauling a smaller dog without defendant intervening to stop them. Defendant was warned by animal control to muzzle them, but refused to do so. Defendant also bragged to co-workers about how he let his pit bulls go after other dogs and attack wild and old animals. Accordingly, the court found that defendant was aware of the dogs’ aggressive behavior and affirmed the holding of the lower court.
|People v. Schneider
|2004 WL 2191322 (Ca. App. 3 Dist.)
Defendant's dogs escaped from Defendant's yard and attacked and killed a six-year-old boy. The trial court convicted Defendant of owning a mischievous animal that causes death and involuntary manslaughter. The Court of Appeals reversed and remanded the trial court's conviction for owning a mischievous animal that causes death due to erroneous jury instructions.
|People v. Smalling
|--- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019)
|Defendant was cited for allowing a dog controlled or owned by her to cause injury or death to a service dog in violation of California’s Penal Code. The offense was an infraction. The defendant pled no contest and was fined $157. The service dog’s owner requested a restitution hearing, but the trial court denied the request stating that since the offense was an infraction, a restitution hearing was not permissible. The service dog owner appealed the decision of the trial court. The Court ultimately found that the trial court incorrectly stated that a victim of an infraction is not entitled to restitution. Both the California Constitution and the California Penal Code (the very statute that the Defendant was convicted of violating) entitle the victim to restitution. The California Constitution specifically states that restitution shall be ordered in every case regardless of the sentence or disposition of a crime in which a victim suffers a loss. The Court stated that an infraction is a crime, therefore, a restitution hearing is mandatory. The statute that the Defendant violated (section 600.2 of California’s Penal Code) also stated that a defendant shall be ordered to make restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is an infraction and ultimately denying the victim restitution. The Defendant argued that an order for payment of restitution would be improper because she was never advised that victim restitution would be a consequence of her plea and that such an order would violate her plea agreement. She also argued that the trial court found, in good faith, that restitution was unnecessary. The Court, however, found the Defendant’s arguments unpersuasive. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.
|Pepper v. Triplet
|864 So.2d 181 (La. 2004)
Neighbor sued dog owner for injuries resulting from dog bite. Supreme Court held that a plaintiff must show that, first, that the injuries could have been prevented by the dog owner and that the plaintiff did not provoke the dog to attack, second, that the dog presented an unreasonable risk of harm, and third, that the owner failed to exercise reasonable care. Plaintiff did not accomplish this. Reversed. (Extensive history of state dog bit law.)
|Perkins v. Hattery
|155 N.E.2d 73 (Ohio App. 1958)
This Ohio case examined the propriety of a county dog warden killing a dog that had killed a sheep nine hours before such seizure. The Court of Appeals held that dog warden was not authorized to destroy or otherwise dispose of a duly licensed dog found and seized by such warden upon the premises of its owner following a complaint made to the warden by the owner of sheep that the dog had killed certain of his sheep approximately nine hours before such seizure.
|Pflaum v. Summit Cty. Animal Control
|92 N.E.3d 132 (OhioApp.2017)
|Defendant appealed a trial court determination that his dog was dangerous under Ohio law. The designation stemmed from an incident in 2015, where defendant's dog and another dog began to fight. A neighbor attempted to break up the fight and was subsequently bitten on the hand. A week after that incident, the local deputy dog warden gave the defendant notice that there was cause to believe his dog was dangerous due to the bite on the hand. The magistrate found the dog did not meet the statutory definition of a dangerous dog. Animal control then appealed the magistrate's decision and the trial court agreed, finding that animal control demonstrated by clear and convincing evidence that the dog was dangerous. At the Court of Appeals, Pflaum argued that the trial court abused its discretion in overturning the magistrate's decision. The court observed that the neighbor's striking of the Pflaum's dog during the fight fell within the concept of "torment" for purposes of determining provocation. While the neighbor's action were "well-intentioned," the issue of whether a person "tormented" a dog does not depend on whether there was a malicious intent. Thus, there was not clear and convincing evidence that the dog acted without provocation when it caused injury to a person. The trial court was reversed and the cause remanded.