Companion Animals: Dangerous Dogs/Vicious Dogs
Connecticut
Mann v. Regan
108 Conn.App. 566
Appellate Court of Connecticut, 2008
FACTS: The plaintiff, Mary Anne Mann brought this action to recover from injuries she suffered when the defendant’s dog bit her on the cheek. The defendant, Gladys Regan, and Mann had been friends for 30 years. Mann agreed to dog sit while Regan went on a trip to Wisconsin. Regan’s Lhasa Apso dog Sam had a history of distrusting strangers and would become upset when people would hover over him, or make sudden movements. After Regan left the dog in the care of Mann, she observed the dog sitting on the couch. Mann went over to place a blanket underneath the dog to make it more comfortable. When Mann leaned over the dog it bit her on the cheek causing puncture wounds. A jury awarded Mann damages for the injury, finding that the dog had dangerous propensities based in part on hearsay evidence that the dog had previously bitten its owner.
ISSUES: did the lower court err when it instructed the jury regarding “dangerous” propensities rather than using the word “vicious” propensities? Was uncontradicted hearsay evidence permitted in evaluating the dog’s propensity to injure people?
HOLDING: No, the lower court did not err when it used the term “dangerous” in the jury instructions regarding the propensities of the dog. According to this court the word dangerous does not have a meaningful distinction from the word vicious. The use of hearsay evidence was supported under an exception where the defendant heard the statement; had the opportunity to speak; the statement required a response; and the defendant remained silent. The lower court’s judgment was affirmed.
Indiana
Tucker v. Duke
873 N.E2d 664
Court of Appeals of Indiana, 2007
FACTS: Defendant Tucker had been keeping his girlfriend’s pit bull in his back yard and had the dog staked outside for 4 months. The dog got out of the yard and went over to plaintiff Deborah Duke’s yard where she was doing yard work. Duke attempted to reach the dog tags to identify the owner when the dog attacked her, biting her hands and arms. Duke then ran inside to call the police and animal control. When animal control arrived the dog attacked the animal control officer and a police officer shot and killed the dog. Tucker argues in this appeal that he did not know the dog had dangerous tendencies and should not be held liable.
ISSUES: Did the small claims court reasonably infer that the dog’s owner knew or should have known that the dog had dangerous or vicious tendencies due to the dogs breed?
HOLDING: Yes, the small claims court reasonably inferred that the dog’s owner knew or should have known that the dog had dangerous or vicious tendencies. The court concluded that the specific breed of dog already had vicious tendencies, and Tuckers girlfriend previously had to put two shar pei/pit mixes to sleep because of their dangerous tendencies. Additionally the court concluded that it was reasonable to assume the pit bull would have dangerous tendencies because it had been chained up and not socialized for four months straight. In the absence of clearly erroneous conclusions on the part of the small claims court, judgment was affirmed.
Maine
Parrish v. Wright
828 A.2d 778
Supreme Judicial Court of Maine, 2003
FACTS: Defendant Marnie Wright was at her parent’s vacation house with her dog Augustus. The dog was in the yard when plaintiff Parrish walked by with his dog. Augustus saw the other dog and began to attack it. While trying to break the fight up, Parrish was bitten on the arm by Augustus. Parrish brings this suit against Wright and her parents because they own the property where Augustus was housed.
ISSUES: 1) are the parents of Marnie Wright considered to be the “owner and keeper” of the dog?
2) Did the Wrights know of Augustus’s dangerous tendencies?
3) Did the Wrights have a duty to keep Augustus on a leash and to warn Parrish of his dangerous tendencies?
HOLDING: 1) No, the Wrights were not even in the same state as their daughter when the incident occurred, and even though they own the property, the dog is not a member of their household so they are not liable to Parrish for his injuries.
2) No, this question does not apply because the possessor must know of the dangerous tendencies .The court determined that Wrights parent’s are not in possession nor owners of Agustus.
3) No, the Wright’s owed Parrish no duty because in Maine there is no duty of a property owner not on the premises to require invitees to control their dogs. There is no evidence that the Wrights knew of any dangerous propensities of the dog since they are not responsible for “dangerous conditions” on their property. The superior court properly granted summary judgment to the parents.
Minnesota
Hannan v. City of Minneapolis
623 N.W.2d 281
Court of Appeals of Minnesota, 2001
FACTS: In June 2000, the City of Minneapolis Animal Control Division issued an order for the destruction of plaintiff Wilbur Hannan’s dog. The dog had been involved in several unprovoked bites and had been declared a dangerous dog. Despite numerous warnings to plaintiff to confine and muzzle the dog, plaintiff failed to do so, leading to four unprovoked bites in total. An administrative hearing was held during which plaintiff was allowed to testify and present several letters that friends and neighbors wrote on the dog’s behalf. The hearing officer affirmed the order to destroy the dog. Plaintiff appealed the decision by the hearing officer claiming that the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of his dog were precluded by state statute.
ISSUES: Are the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” precluded by state statute?
HOLDING: No, the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” are not precluded by state statute. Plaintiff claimed that the city ordinance conflicts with state law, citing matters where the city had provided for additional procedures for regulating dangerous dogs. The court found that while some of the city’s procedures were more severe than state law required, as long as the state has not expressly precluded local regulation, there is no conflict when the state regulates a topic and the local government adds additional regulations that provide consequences greater than those already provided. Plaintiff further insisted that the local ordinance was preempted by state law. Local ordinances are only preempted by state law when the legislature has fully and completely covered the subject matter, clearly indicated that the subject matter is solely of state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace. The court held that none of these grounds for preemption existed. The legislature has never expressly or impliedly stated that they had fully covered the subject matter or that the subject matter is solely of state concern. Further, they found that the regulation and control of dangerous dogs is a wholly legitimate issue for municipal interest because it primarily affects the local populace. The court also found plaintiff’s claim that his due process rights were violated to have no merit. The court therefore affirmed the hearing officer’s decision that the order for destruction was valid and duly authorized.
Missouri
Savory v. Hensick
143 S.W. 3d 712
Missouri Court of Appeals (Eastern District Division), 2004
FACTS: Plaintiff William Savory was working at Ronald Hensick’s home building a deck. Plaintiff and his crew were warned that the defendant’s dogs were very playful and could possibly get in the way of their work. Plaintiffs asked defendants to keep the dogs in the house while the plaintiff and his crew worked. The plaintiff stated that the dogs were kept in the house but frequently came outside and got in the way of the workers. On the final day of work, Hensick told Savory he had to go to the store quickly but did not mention the dogs were still in the yard not the house. Savory went up his ladder to retrieve his tools and on his way down stepped on the 9 month old Labrador retriever who then yelped in pain. Savory was startled and fell from his ladder landing on his hip; the injury resulted in two back surgeries. Savory is suing Hensick to recover damages for his injuries.
ISSUES: Did the animal’s behavior create a foreseeably dangerous situation for the invitee?
HOLDING: Yes, the dog’s behavior did create a dangerous situation for the plaintiff. The defendant owed a duty of care to the invitee to exercise reasonable and ordinary care in making the premises safe. The defendant knew the dogs had a tendency to interfere with work, and also knew that the plaintiff had asked that the dogs be kept inside for that reason. The lower courts judgment in favor of the plaintiff was affirmed.
Nebraska
Plowman v. Pratt
684 N.W. 2d 28
Supreme Court of Nebraska, 2004
FACTS: Plaintiff Plowman was a meter reader in Nebraska. She went around to neighborhoods and read the relevant meters for an Omaha utility company. While on the job Plowman was in Pratt’s neighbor’s yard when she asked Pratt if she could read her meter. Pratt agreed. But when Plowman began to approach the house, Pratt’s 1 ½ yr old pit bull terrier ran towards Plowman and jumped at her face. Plowman put her arm up to avoid the attack, and the dog bit Plowman’s arm. Plowman sued Pratt’s landlord Simen for injuries resulting from the dog attack, alleging that he knew or should have known of the dog’s dangerous propensities and did nothing to stop the dog from living on his property.
ISSUES: Should the standard of care applied to a landlord for liability for injuries caused by a tenant’s dog be actual knowledge of the dog’s dangerous propensities? Or should the court have adopted a standard where in the landlord is liable for injuries caused by an attack by a tenants dog if the land lord “knew or should have known” of a dogs dangerous propensities?
HOLDING: Yes, the standard of care and general rule for landlord liability is that the landlord has to have actual knowledge of the dangerous propensity of the dog in order to be held liable. The court concluded that this rule should not be overturned and the “know or should have known” language is not too low a threshold for a finding of negligence on the part of the landlord. Simen did not know of the dogs dangerous tendencies and therefore he can not be held liable under the land lord liability rule. The court, in affirming the lower courts grant of summary judgment to Simen, judged that the news articles on pit bulls was inadmissible hearsay and were properly ordered.
New York
Carter v. Metro North Associates
255 A.D.2d 251
Supreme Court, Appellate Division, First Department, New York, 1998
FACTS: In August 1995, the plaintiff, a tenant in the building owned by the defendants, was walking along a path leading to an exit gate of the apartment complex. She was attacked by a pit bull owned by another tenant. The tenant sued the landlords claiming that they were liable for her injuries. The IAS court denied summary judgment for the defendants and instead granted summary judgment to the plaintiff on the issue of liability.
ISSUES: Did the IAS court err in denying summary judgment for the defendants and granting summary judgment to the plaintiff?
HOLDING: Yes, the IAS court erred in denying summary judgment for the defendants and granting summary judgment to the plaintiff. In order for a landlord to be held strictly liable for an injury inflicted by an animal, the plaintiff must establish 1) that the animal had vicious propensities and 2) that the landlord knew or should have known of the animal’s propensities. In this case, there was no evidence that the dog had ever attacked any individual, or previously displayed any vicious behavior. The IAS court erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole. According to New York case law, however, a court may only take judicial notice to matters of ‘common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.’ The Supreme Court found that the IAS court erred in taking such judicial notice because pit bulls alleged “vicious propensity” is not a well-established truth. The court found that on the subject of the propensities of pit bull terriers as a breed, there are alternative opinions that preclude judicial notice such as was taken by the IAS court. The Court found that because the plaintiff failed to submit sufficient evidence to support her claim that this individual dog had vicious propensities or that the defendants were or should have been aware of such propensities, the defendants’ motion for summary judgment should have been granted.
Ohio
Toledo v. Tellings
2006 Ohio 975
Court of Appeals of Ohio, 2006
FACTS: Appellant, Tellings, a resident of Toledo Ohio, owned three pit bull type dogs. The dogs were family pets and had no history of aggressive or unlawful behavior. The dogs were discovered by a health inspector checking the house for lead paint, and reported to the County Dog Warden. Tellings was charged with two violations of Toledo Municipal Code §505.14(a), which limits ownership of pit bulls to one per household, and two violations of R.C. 955.22, the failure to provide liability insurance. R.C. 955.22, 955.11(A)(4)(a)(iii) includes pit bulls in the definition of “vicious dogs.” One dog remained in the Tellings home, one was given away, and the third was confiscated by the dog warden and subsequently destroyed. Tellings challenged the constitutionality of the ordinances on numerous grounds. The trial court held the state and local “vicious dog” laws to be constitutional.
ISSUES: Did the trial court err in finding state and local “vicious dog” laws constitutional?
HOLDING: Yes, the trial court erred in finding state and local “vicious dog” laws constitutional on numerous grounds. 1) The Court of Appeals found that the laws are unconstitutional because they violate procedural due process. The laws create an unrebuttable presumption that if the dog warden designates a dog as a pit bull, it is “vicious” regardless of its training, behavior or history. Therefore, the appellant had no opportunity to challenge the finding before being charged with noncompliance with the statutes. 2) The Court of Appeals also found that the laws are unconstitutional because they violate equal protection. Both ordinances relied on an out-dated and now disproved presumption that pit bulls are inherently dangerous. They are therefore unconstitutional since they lack a rational or real and substantial relationship to a legitimate governmental interest. 3) The Court of Appeals further found that the ordinances were unconstitutionally vague and therefore violate the defendant’s right to due process because there is no rational basis to positively identify a pit bull. The Court reversed the lower court’s judgment and vacated Tellings’ convictions.
Ohio
103 Ohio St.3d 144
Supreme Court of Ohio, 2004
FACTS: In October 2001, a county deputy dog warden was summoned to the home of Margaret and Jeffrey Maurer to investigate an incident in which appellee, Janice Cowan’s dogs’ allegedly bit Mrs. Maurer. The dog warden made the determination that Cowan’s dogs were vicious. Cowan was given paperwork explaining her legal responsibilities, including confining her dogs in a particular manner. Cowan failed to confine her dogs in the required manner and was charged with two counts of failing to confine a vicious dog, one count of failing to obtain the required liability insurance for a vicious dog, and one count of failing to restrain a vicious dog. Cowan was convicted of all charges and required to surrender her dogs in exchange for a partially suspended sentence. The court of appeals reversed her convictions finding that the statute under which she was convicted, R.C. 955.22, unconstitutionally deprived Cowan of her due process rights.
ISSUES: Was Cowen unconstitutionally deprived of her due process rights under R.C. 955.22?
HOLDING: Yes, Cowan was unconstitutionally deprived of her due process rights under R.C. 955.22. Under both the Ohio and United States Constitutions, procedural due process requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right. The Supreme Court of Ohio found that R.C. 955.22 is unconstitutional insofar as it fails to provide dog owners, such as Cowan, with a meaningful opportunity to be heard on the issue of whether a dog is “vicious” or “dangerous.”
South Dakota
City of Pierre v. Blackwell
635 N.W.2d 581
Supreme Court of South Dakota, 2001
FACTS: In June 2000, the Blackwell’s family dog reportedly bit a 14-year old girl in the alley behind the property of the Blackwell’s neighbors. As a result of the incident, the dog was declared a “dangerous animal” under a Pierre city ordinance by the animal control officer reporting to the scene. The dog was impounded and Blackwell was sent notice of the decision by registered mail. Blackwell refused to comply with certain requirements of the ordinance including 1) keeping the dog muzzled, leashed, and in the company of someone 18 years of age or older, 2) having the dog injected with an identification microchip, and 3) carrying a minimum of $100,000 of liability insurance on the dog. The dog was then released to Blackwell pending his criminal trial for noncompliance. When Blackwell still refused to comply with the requirements of the ordinance, the city of Pierre filed a criminal complaint against Blackwell. The only issue at trial was the dog’s dangerousness. The trial court concluded that an independent factual determination was not appropriate and therefore merely reviewed the animal control officer’s determination for its legality. The court held that the determination was neither capricious nor arbitrary and was therefore legally made. Blackwell was convicted. Blackwell appealed the decision.
ISSUES: 1) Were the Pierre City Ordinances unconstitutional on their face as a violation of due process as they allow for the adjudication of a dog as a “dangerous animal” without prior hearing? 2) Did the trial court’s criminal sentence amount to a deprivation of property without a proper criminal trial, thereby violating Blackwell’s constitutional right to due process?
HOLDING: 1) No, the Pierre City Ordinances are not unconstitutional. The Supreme Court held that the means employed by the city did not unreasonably exceed the City’s regulatory authority. Therefore, the ordinances were constitutional. 2) Yes, the trial court’s criminal sentence did amount to a deprivation of property without a proper criminal trial and therefore violated Blackwell’s constitutional right to procedural due process. The Supreme Court found that due process guarantees that notice and the right to be heard are granted in a meaningful time and in a meaningful manner. A dog is property, so in order to deprive Blackwell of his dog, absent exigent circumstances, the City was required to provide Blackwell with notice, an opportunity to be heard and a proper criminal adjudication by a judicial officer. The Court found that the requirement of a hearing by a disinterested judicial official was not satisfied. For a criminal conviction, dangerousness must be established by the City beyond a reasonable doubt. In this case, the City refused to meet their burden.