State v. Kaneakua case brief

State v. Kaneakua case brief
Case Citation:  597 P.2d 59
Subject: Animal Law

CASE SYNOPSIS: The state appealed from a decision of the District Court of the First Circuit, Waianae Division (Hawaii), which granted defendants' motions to dismiss the prosecutions against them for cruelty to animals, in violation of Hawaii Penal Code, Haw. Rev. Stat. § 1109(1)(d), as a result of their participation in cockfights. The district court found that the statute was unconstitutional.

FACTS:
-The defendants stipulated that they were involved in cockfights.
-Numerous prosecutions for violations of § 1109(1)(d), part of Hawaii's cruelty to animals statute, were dismissed on grounds that the statute was unconstitutional, and the state appealed.
-The court reversed the dismissal on appeal, and remanded.

HOLDING
-The court held that the statute was constitutional and did not deny defendants due process of law.

ANALYSIS
-The court found that the statute was not vague, and was sufficiently definite to satisfy due process with regard to the charge against defendants.
-Further, the statute was not overly broad as applied to defendants.
-Defendants' participation in cockfighting, which was prohibited by the statute, was not protected conduct. 
-The court also stated that defendants did not have standing to challenge the statute on grounds of vagueness or over-broad as applied to hypothetical situations.

CONCLUSION: The court reversed the decision, which had dismissed the charges of cruelty to animals for cockfighting on grounds that the cruelty statute was unconstitutional. The court held that the statute was not vague or overbroad, and remanded.

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Moody v. State case brief

Moody v. State case brief 
320 S.E.2d 545
Subject: Animal Law

CASE SYNOPSIS: 
Fifty-nine defendants appealed a judgment from the Bacon Superior Court (Georgia), which overruled a motion quash an indictment charging defendants with violating the dogfighting statute, O.C.G.A. § 16-12-37.

FACTS: The trial court denied a motion to quash an indictment charging defendants with violating O.C.G.A. § 16-12-3, and the court granted an interlocutory appeal.

HOLDING:
The court ruled the statute was not overly broad for failing to delineate permissible conduct.

ANALYSIS:
-The court had held that the statute required knowing and consensual involvement in dogfighting, therefore the statute required intent. 
-The court further ruled that the law prohibited participation by gambling on the act, and the statute did not infringe on constitutionally protected conduct.

CONCLUSION: The court affirmed.

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Hargrove et al. v. State case brief

Hargrove et al. v. State case brief 321 S.E.2d 104

CASE SYNOPSIS: Defendants appealed an order of the Mitchell Superior Court (Georgia), which convicted them of dogfighting, gambling, and commercial gambling in violation of Ga. Code Ann. § 16-12-37.

FACTS: On appeal, defendants contended that § 16-12-37 was unconstitutional. The court affirmed, holding that the statute was not unconstitutionally vague because it prohibited one from causing or allowing a dog to fight another dog for sport or gaming purposes, and thus it was sufficiently definite to put those of common intelligence on notice that knowing participation in a dogfighting event was prohibited. The court held that as a matter of law a $ 5,000 fine with an optional one year in prison for dogfighting was not cruel and unusual punishment. The statute was not invalid on equal protection grounds for punishing dogfighting as a felony while cockfighting was only a misdemeanor because the legislature acted within its discretion in mandating that those who participated in a dogfight organized for gaming purposes should be dealt with more harshly. The court also held the circumstantial evidence, together with the equipment found at the scene, the time and place of the event, and the evidence as to the nature of dogfighting were sufficient evidence of gambling, and that dogfighting was not as a matter of law a lesser included offense of commercial gambling.

CONCLUSION: The court affirmed defendants' conviction for dogfighting, gambling, and commercial gambling.

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Barton v. State case brief

Barton v. State case brief 322 S.E.2d 54

CASE SYNOPSIS: Four defendants sought review of a judgment from the Superior Court, Mitchell County (Georgia), which convicted them of dog fighting in violation of O.C.G.A. § 16-12-37 and gambling in violation of O.C.G.A. § 16-12-21(a)(1).

FACTS: Four defendants were convicted of dog fighting in that they unlawfully allowed a dog to fight another dog in violation of O.C.G.A. § 16-12-37. They were also convicted of gambling in violation of O.C.G.A. § 16-12-21(a)(1). On appeal, the court rejected the constitutional attacks on § 16-12-37. Next, the court concluded from the circumstantial evidence that a rational trier of fact could have found one defendant guilty beyond a reasonable doubt of the offenses of allowing dog fighting to take place and of gambling. With respect to the remaining three defendants, the court reached a different result. The court found the State had not offered any evidence that linked these defendants to the area where the dog fighting and gambling were taking place. The court concluded that the evidence in the record was clearly insufficient to support the convictions against these defendants in this case. The court affirmed the convictions only with respect to one defendant and reversed the convictions as to the remaining three defendants.

CONCLUSION: The court affirmed the trial court's judgment that convicted the four defendants of dog fighting and gambling only with respect to one defendant and reversed the trial court's judgment with respect to the remaining three defendants.

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People v. Berry case brief

People v. Berry case brief 1 Cal.App.4th 778

CASE SYNOPSIS: Appellant offender challenged the judgment from the Superior Court of Santa Clara County (California), which found him guilty of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana.

FACTS: Appellant offender challenged the judgment that found him guilty of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana. Appellant owned three pit bulls and lived next door to the residence of the victim, a child under five years old. The victim wandered over to appellant's yard and was mauled and killed by one of the dogs. Appellant argued that he could not be held criminally liable for the child's death and that the jury instruction on keeping a mischievous animal was incorrect. The court affirmed the judgment and held that minors under the age of five were incapable of negligent acts as a matter of law. The court held that the jury was properly instructed that proof was required that a victim take reasonable precautions pursuant to Cal. Penal Code § 399, but that a minor under the age of five need not do so. The court held that the jury instruction that defined mischievous as something capable of causing annoyance, trouble, minor injury, or damage to others was overbroad. The court held that the error was not prejudicial in light of the evidence that appellant's dog was trained and kept as a fighting dog.

CONCLUSION: The judgment of conviction was affirmed because the jury was properly instructed that the victim, being under the age of five, was not required to take reasonable precautions to stay away from appellant offender's mischievous dog. The lower court's definition of mischievous was overbroad but constituted harmless error.

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Ash v. State case brief

Ash v. State case brief 718 S.W.2d 930

CASE SYNOPSIS: Defendant sought review from an order of the Sebastian Circuit Court, Ft. Smith District (Arkansas), which found her guilty of promoting or engaging in dog fighting or possessing a dog for that purpose and fined defendant.

FACTS: Police raided defendant's home and found an area converted into an arena for dog fighting. Defendant was arrested and charged with promoting or engaging in dog fighting or possessing a dog for that purpose. She was found guilty and fined. On appeal, the court was presented with an issue of construing the word "promotes" in Ark. Stat. Ann. §§ 41-2918.1, -2918.2 (Supp. 1982). The court determined that the word promote meant to further; encourage; advance. The court found that the evidence showed that defendant was familiar with the pit and knew it could be used for dog fighting, and knew that her husband fought dogs. A jury could have reasonably have concluded that defendant was aware that on property owned by her and her husband an arena had been built for the purpose of clandestine dog fighting and that she was aware it was so being used. The court affirmed.

CONCLUSION: The court affirmed the order from the trial court.

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Jones v. State case brief

Jones v. State case brief 473 So.2d 1197

CASE SYNOPSIS: Defendant sought review of a decision of the Jefferson Circuit Court (Alabama), which entered judgment convicting and sentencing him for unlawfully owning, possessing, keeping, or training a dog or dogs with the intent that such dog or dogs be engaged in an exhibition of fighting with another dog in violation of Ala. Code § 3-1-29 (1975).

FACTS: Defendant contended on appeal that Ala. Code § 3-1-29 (1975) was void for vagueness and therefore unconstitutional, that it had been applied to him ex post facto, and that the trial court erred in permitting the state to present inflammatory evidence concerning the condition of the dogs when confiscated from him. The court affirmed the judgment. The court stated that § 3-1-29 was not unconstitutionally vague, noting that otherwise innocent conduct was protected in that minimal guidelines had been established to aid law enforcement officials and triers of fact in determining what conduct was prohibited, and that it conveyed a sufficient and definite meaning and warning as to the proscribed conduct when measured by common understanding and practice. The court held that defendant's ex post facto claim was without merit because there was sufficient evidence before the jury to convict him of activities after the effective date of § 3-1-29. The court stated that the testimony on the dogs' conditions and propensity for viciousness was relevant to prove the issue of intent to fight the dogs, and found no abuse of the trial court's discretion in admitting it.

CONCLUSION: The court affirmed the judgment of the trial court convicting and sentencing defendant for keeping dogs with the intent that they be engaged in an exhibition of fighting with another dog.

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Crossroads Apartments Associates v. LeBoo case brief

Crossroads Apartments Associates v. LeBoo case brief 152 Misc.2d 830

CASE SYNOPSIS: Petitioner landlord and respondent tenant moved for summary judgment in an eviction action. The tenant raised an affirmative defense that he was a handicapped person as defined by § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.S. § 794, and its regulations, 24 C.F.R. § 8.1 et seq., and as defined by 42 U.S.C.S. § 3602(h) of the Fair Housing Amendments Act of 1988 and its implementary regulations. The tenant requested a jury trial.

FACTS: The landlord was an apartment complex subject to federally funded Section 8 housing assistance. The tenant, who received Section 8 assistance, had a written lease. He was mentally ill and claimed that he required the cat to cope with his disability. The landlord sought eviction because possession of the cat violated the lease terms. The court held (1) as a matter of law § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.S. § 794, applied to the tenant's claim and he had a right to plead a violation of the section as an affirmative defense, (2) the tenant's affirmative defense of estoppel was dismissed because New York law recognized and enforced "no pet clauses" even where the landlord chose to selectively enforce such clauses, (3) a genuine issue of fact existed as to whether the tenant had an emotional and psychological dependence on the cat that required him to keep the cat in his apartment, (4) whether the cat would cause an undue administrative burden and create health problems for other tenants was also a question of fact, and (5) the tenant's demand for a jury trial was stricken because he waived his right to a jury trial when he asserted only equitable defenses.

CONCLUSION: The court denied both parties' motions for summary judgment and struck the tenant's demand for a jury trial.

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DuBois v. Association of Apartment Owners of 2987 Kalakaua case brief

DuBois v. Association of Apartment Owners of 2987 Kalakaua case brief 453 F.3d 1175

CASE SYNOPSIS: Plaintiff condominium owner appealed decisions of the U.S. District Court for the District of Hawaii, granting summary judgment for defendants, a group collectively referred to as a condominium association, on Fair Housing Act (FHA), 42 U.S.C.S. §§ 3601-3609, and Discrimination in Real Property Transactions Act, Haw. Rev. Stat. §§ 515-1 to -20 (2005) claims, denying reconsideration, and granting the association summary judgment on tort claims.

FACTS: The owner's primary claim was that the association discriminated against he and his roommate on the basis of handicap in violation of the FHA when it refused to allow them to keep their dog as a reasonable accommodation for the roommate's depression. The appellate court affirmed. Although the parties had argued various issues at length, resolution of the legal issues was simple. The association never required the dog to leave and thus never refused to make the accommodation. After such accommodation was requested, the association granted a temporary exemption from its bylaw limiting the presence of animals while it investigated. The dog remained in the unit until the inhabitants moved out. Moreover, the federal district court properly denied reconsideration of its ruling because the owner's motion merely reinforced previously known facts or presented immaterial evidence. Finally, the district court's grant of summary judgment to the association on the remaining tort claims was proper as the owner failed to produce sufficient proof as to each of his claims. His exhibits were largely irrelevant, leaving only uncorroborated and self-serving declarations.

CONCLUSION: The appellate court affirmed.

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Access Now, Inc. v. Town of Jasper, Tennessee case brief

Access Now, Inc. v. Town of Jasper, Tennessee case brief 268 F.Supp.2d 973 
 

CASE SYNOPSIS: Plaintiffs, an organization and a mother acting on behalf of her minor daughter, sought declaratory judgment and injunctive relief against defendant town pursuant to Title II of the Americans With Disabilities Act (ADA), 42 U.S.C.S. § 12131 et seq. The mother contended that the town's refusal to provide a reasonable modification to its ordinance to allow her daughter to keep a horse at her residence to assist her violated Title II of the ADA.

FACTS: The daughter suffered from the congenital birth defect spina bifida. The organization and the mother contended that the daughter was a qualified individual with a disability under Title II of the ADA and that she needed the horse to assist her as a service animal. The court found that the organization and the mother had not met their burden of proving essential elements of their ADA claim by a preponderance of the evidence because (1) the daughter was not a qualified individual with a disability within the meaning of 42 U.S.C.S. § 12131(2) because the evidence clearly showed that the daughter was not substantially limited in the major life activities of walking, standing, and caring for herself, and thus the daughter was not disabled under the terms of the ADA; (2) the horse was not a service animal because the daughter was not disabled within the meaning of the ADA and thus did not need to utilize the horse as a service animal; and (3) the ADA did not require the town to modify its policy and ordinance to accommodate the daughter because the organization and the mother had not met their burden of proving that the daughter had a disability under the ADA.

CONCLUSION: The court granted judgment in favor of the town and against the organization and the mother. The organization and the mother's complaint was dismissed with prejudice. The town was entitled to recover its costs of the action.

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Janush v. Charities Housing Development Corp. case brief

Janush v. Charities Housing Development Corp. case brief 169 F.Supp.2d 1133 
 

CASE SYNOPSIS: Plaintiff renter sued defendants, her landlord and two of its agents, under the Fair Housing Act (FHA) for disability discrimination based on the failure to provide a reasonable accommodation. Defendants moved to dismiss the complaint or, in the alternative, for summary judgment.

FACTS: The renter suffered from a severe mental health disability. She had pets--two birds and two cats---that lessened the effects of her disability and, according to her psychiatrist, were necessary to her mental health. The renter's lease contained a "no pets" clause. When her pets were discovered in her apartment, discussions began between the renter and defendants about whether she could keep the animals there. Eventually, defendants filed eviction proceedings against the renter. The renter moved out but, before doing so, she filed the instant lawsuit. Seeking dismissal or summary judgment, defendants appeared to argue that California's definition of a "service dog," Cal. Civ. Code § 54.1(c)(6)(iii), should be read into the FHA to create a bright-line rule that accommodation of animals other than service dogs was per se unreasonable. The court noted that the implementing regulations provided a broad definition of service animals and that defendants had not established that there was no duty reasonably to accommodate non-service animals. The renter adequately pled her discrimination claim, and summary judgment would be premature, since no discovery had yet occurred.

CONCLUSION: The court denied the motion to dismiss and the alternative motion for summary judgment.

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City of Pierre v. Blackwell case brief

City of Pierre v. Blackwell case brief 635 N.W.2d 581

CASE SYNOPSIS: The defendant was the owner of a dog declared by an animal control officer to be "dangerous" pursuant to Pierre, S.D., City Ordinance §10-3-111 and was convicted in the Circuit Court of Hughes County (South Dakota).The defendant appealed his conviction on the basis that the ordinances themselves were unconstitutional and that his constitutional right to procedural due process has been violated.

FACTS: The only issue at trial was the dog's dangerousness. The trial court concluded that an independent factual determination of the dog's disposition was not appropriate, and therefore merely reviewed the animal control officer's determination for its legality. The supreme court held the ordinances at issue advanced a legitimate public safety objective and were neither unreasonable or arbitrary on their face. But, the trial court's ruling under Pierre, S.D., City Ordinance §§10-3-111 and 10-3-117 operated to deprive defendant of a protected property interest in his dog and absent exigent circumstances, the City was required to provide him with notice, an opportunity to be heard and a proper criminal adjudication by a judicial officer. The requirement of notice and an opportunity to be heard were not disputed. The requirement of a hearing by a disinterested judicial officer, however, was not satisfied. Because the City brought criminal as opposed to civil charges the defendant was entitled to a due process hearing on the issue of dangerousness and the City was required to prove, as an element of the crime, that the dog was dangerous beyond a reasonable doubt, which it had not done.

CONCLUSION: The trial court was affirmed in part, reversed in part, and remanded for determination on the factual issue of the dog's dangerousness.

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Center for Biological Diversity v. Badgley case brief

Center for Biological Diversity v. Badgley case brief 335 F.3d 1097

CASE SYNOPSIS: Plaintiffs, non-profit environmental groups, appealed a judgment from the United States District Court for the District of Oregon, which entered summary judgment in favor of defendant, the United States Fish and Wildlife Service (FWS), in plaintiffs' suit claiming a violation of the Endangered Species Act (ESA), 16 U.S.C.S. §§ 1531-1544, by making an erroneous, arbitrary, and capricious determination that the Northern Goshawk was not endangered.

FACTS: FWS assembled a team of wildlife biologists with special expertise in the area of goshawks to conduct a status review. The administrative record indicated the status review team conducted a comprehensive review of scientific published and unpublished literature, peer reviews, and raw data in making their report. Based on the status review team's report, FWS determined that the best available scientific and commercial data did not indicate the goshawk population was endangered or threatened. In the absence of evidence that the goshawk was endangered or likely to become endangered in the foreseeable future, FWS's decision was not arbitrary or capricious. The court held that FWS's determination was amply supported by evidence in the record.

CONCLUSION: The judgment was affirmed.

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State v. Cowen case brief

State v. Cowen case brief
103 Ohio St.3d 144
 

CASE SYNOPSIS: The State appealed from a judgment of the Court of Appeals for Portage County (Ohio), which reversed the convictions imposed on defendant by the trial court, based on the appellate court's determination that Ohio Rev. Code Ann. § 955.22 unconstitutionally deprived defendant of her due process rights. Defendant had been convicted of various offenses arising from incidents involving her dog.

FACTS: Defendant's neighbor informed a dog warden that defendant's dogs had attacked his wife. The warden made the determination that defendant's dogs were vicious. The warden informed defendant of her responsibilities as to confining the dogs under the vicious-dog law. On two subsequent occasions, the warden was summoned to defendant's residence due to complaints that her dogs were not confined pursuant to the vicious-dog law. Charges were filed against her under various sections of § 955.22. Her motions to dismiss, based on challenges to the statute's constitutionality, were denied, and she was convicted and sentenced. On appeal, the appellate court reversed the convictions, finding that § 955.22 violated defendant's due process rights by allowing the warden unfettered discretion to label the dogs as dangerous and/or vicious, and because there was no appeal mechanism. On further review, the court found that the inability of defendant to have contradicted the warden's opinion prior to his determination having been made violated her due process rights. Further, even at her criminal trial, the jury did not consider whether the dog met the definition of "vicious" or "dangerous."

CONCLUSION: The court affirmed the judgment of the appellate court.

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Toledo v. Tellings case brief

Toledo v. Tellings case brief
2006 Ohio 975

CASE SYNOPSIS: Defendant appealed a judgment from the Toledo Municipal Court (Ohio), which convicted him of violations of Toledo, Ohio, Code § 505.14(a) and Ohio Rev. Code Ann. § 955.22. The trial court found that the state and local "vicious dog" laws were constitutional.

FACTS: Defendant owned three pit bull type dogs, which were family pets who had no history of aggressive or unlawful behavior. Upon a report of the dogs' presence being filed with the county dog warden, one dog was given away, one was confiscated and destroyed, and one was kept by defendant. Defendant was charged by the city with local and state statutory violations. The trial court denied defendant's dismissal motion, finding that Ohio Rev. Code Ann. §§ 955.22 and 955.11(A)(4)(a)(iii), and Toledo, Ohio, Code § 505.14(a) were constitutional, although it noted that pit bulls were not, as a breed, more dangerous than other breeds. On appeal, the court found that the statutes were unconstitutionally violative of procedural due process, as defendant could not rebut the presumption that his dogs were "vicious" before being charged. Further, the statutes were void for vagueness under that constitutional principle due to the subjective identification procedures. The statutes also violated equal protection and substantive due process where there was no rational basis to single out the pit bull as inherently dangerous, based on the current evidence regarding the breed.

CONCLUSION: The court reversed the judgment of the trial court and vacated defendant's convictions.

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Carter v. Metro North Associates case brief

Carter v. Metro North Associates case brief 255 A.D.2d 251

CASE SYNOPSIS: Appellant landlords challenged the decision of the lower court, which denied the landlords' motion for summary judgment in appellee tenant's strict liability claim against the landlord.

FACTS: The tenant of a building owned and managed by the landlords was attacked and bitten on the face by a pit bull owned by another resident. There was no evidence indicating that the dog had ever attacked any other individual, or had previously displayed any vicious behavior. The tenant brought an action against the landlord for strict liability. The lower court took judicial notice of the vicious nature of pit bulls as a breed and denied the landlords' motion for summary judgment. On appeal, the court reversed. The court concluded that the lower 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. The court noted that there were alternative opinions concerning the propensities of pit bulls that precluded judicial notice such as was taken by the court. The court found no causal connection between the landlords' failure to enforce the "No Pets" provision of the lease and the tenant's injuries.

CONCLUSION: The court reversed the lower court's decision denying the landlords' motion for summary judgment dismissing the tenant's complaint.

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Plowman v. Pratt case brief

Plowman v. Pratt case brief
684 N.W. 2d 28 
 

CASE SYNOPSIS: Appellant, claimant, was attacked and injured by a pit bull terrier. The claimant filed an action against appellees, dog owner and the dog owner's landlord. The District Court for Douglas County, Nebraska, granted the motion for summary judgment filed by the landlord, and the claimant appealed.

FACTS: The district court held that the landlord was liable for injuries caused by the attack of a tenant's dog only when the landlord had "actual knowledge" of the dangerous propensities of that dog, and determined that the landlord did not have actual knowledge of the dog's dangerous propensities. The claimant argued that a different standard should be adopted, wherein the landlord was liable if the landlord "knew or should have known" of the dog's dangerous propensities. The appellate court declined to adopted the standard asserted by the claimant, as the appellate court determined that the actual knowledge standard represented the better rule. The actual knowledge standard was appropriate because it held landlords responsible for failing to act against certain known, unreasonable risks, while recognizing that, as a general rule, tenants enjoyed a level of privacy in their rental premises. Also, the district court did not err in concluding that the landlord did not have actual knowledge of the dog's dangerous propensities. Normal canine behavior, such as a dog barking at a stranger, was not sufficient to infer that the landlord had actual knowledge of a dog's dangerous propensities.

CONCLUSION: The judgment was affirmed.

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Savory v. Hensick case brief

Savory v. Hensick case brief 143 S.W. 3d 712

CASE SYNOPSIS: Plaintiffs, an injured contractor and his wife, filed a premises liability action against defendant homeowners to recover damages plaintiffs suffered when the contractor stepped on the homeowners' dog at the base of the ladder, and fell, injuring himself. The Circuit Court of Jefferson County, Missouri, entered judgment in accord with the jury's verdict in plaintiffs' favor against one of the homeowners, who appealed.

FACTS: The injured contractor entered into an agreement to build a deck for the homeowners. They agreed to keep the dogs inside the home, or tied up, while he and his crew were present. On the final day of work, as the contractor stepped down from the ladder, he stepped on one of the dog's paws and heard a loud yelp. The paw moved, and the contractor lost his balance, twisted, and fell to the ground on his hip. He and his wife sued the homeowners for negligence. Both parties agreed that the contractor was an invitee. The trial court properly entered judgment for plaintiffs. The evidence was sufficient to submit to the jury the question of whether the dogs made the yard foreseeably dangerous. There was also substantial evidence that the dogs created a foreseeable risk of harm if they were loose while the contractor and his crew were working. The trial court did not err in denying the homeowners' motions for directed verdict and for judgment notwithstanding the verdict.

CONCLUSION: The judgment was affirmed.

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Hannan v. City of Minneapolis case brief

Hannan v. City of Minneapolis case brief
623 N.W.2d 281

CASE SYNOPSIS: Relator appealed an order of respondent, the City of Minneapolis, Minnesota Animal Control Division, ordering the destruction of his dog based on its determination the dog's aggressive behavior represented a danger to public safety.

FACTS: Respondent municipal animal control division informed relator it was declaring his dog "potentially dangerous" under Minn. Stat. § 347.50, subd. 3 (2000) after it bit an individual walking by his home. A hearing officer upheld the declaration, but overruled the contention the dog was a dangerous animal under a city ordinance because relator agreed to keep the dog muzzled when it was alone or off relator's property. Relator failed to abide by the restrictions and the dog was involved in several more biting incidents. Respondent issued an order for destruction of the dog as a dangerous animal under Minneapolis, Minn., Code of Ordinances § 64.120 (2000) and relator appealed, arguing the actions of respondent in regulating and ultimately ordering the destruction of a dangerous animal were precluded by state statute. The court affirmed, holding the municipal ordinance relied upon by respondent for the destruction of dangerous animals was not in conflict with or preempted by state law, and relator's due-process rights were not violated where the record did not indicate respondent's decision was unreasonable or without evidentiary support.

CONCLUSION: Judgment affirmed, because the municipal ordinance providing for the destruction of dangerous animals was not in conflict with or preempted by state law, therefore the order was duly authorized. Further, relator's due-process rights were not violated where the record did not indicate respondent's decision was arbitrary or without evidentiary support.

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Tucker v. Duke case brief

Tucker v. Duke case brief
873 N.E2d 664

CASE SYNOPSIS: Plaintiff injured party filed a small claims action alleging negligence against defendants, a dog owner and the dog's keeper. The Blackford Superior Court (Indiana) entered judgment against defendants in the amount of $ 6,000 plus interest and costs, and denied the dog keeper's motion to correct error. The dog keeper appealed.

FACTS: The evidence showed that the dog keeper kept the dog, a pit bull belonging to his girlfriend, on his property staked to a chain for four months and that the pit bull became loose on the day in question and attacked the injured party on her own property. On appeal, the dog keeper argued that the small claims court's decision was error because there was absolutely no evidence that he knew or should have known of any vicious propensity on the part of the dog. The appellate court held that the small claims court's judgment that the dog keeper was liable on grounds of negligence was not clearly erroneous. While the dog did not have a history of violence, the dog had been chained to a stake in the dog keeper's backyard for four months, allowing for a reasonable inference that the dog had become dangerous and vicious due to lack of training and socialization. In addition, the dog owner testified that she had previously had two pit bulls that had to be put to sleep because they exhibited dangerous propensities and the appellate court noted that the particular breed was known for having such dangerous propensities.

CONCLUSION: The judgment of the trial court was affirmed.

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Mann v. Regan case brief

Mann v. Regan case brief
108 Conn.App. 566

CASE SYNOPSIS: Plaintiff filed a negligence action against defendant dog owner to recover damages for injuries sustained when plaintiff was bitten by the dog. A jury trial returned a verdict in favor of plaintiff, awarding plaintiff $ 101,411.76 and finding plaintiff 10 % at fault, which reduced the award by 10 %. The Superior Court in the judicial district of Hartford (Connecticut) denied the dog owner's motion to set aside the verdict. The dog owner appealed.

FACTS: The dog owner claimed that the trial court improperly admitted into evidence a statement of the dog owner's daughter that the dog had previously bitten the dog owner and the dog owner's silence in response to that statement under the tacit admission exception to the hearsay rule. The appellate court disagreed, finding that it was not unreasonable for the trial court to have determined that the circumstances naturally called for a reply from the dog owner. The dog owner also argued that the trial court improperly instructed the jury regarding "dangerous" or "potentially dangerous" propensities. The appellate court disagreed, finding that the instructions given conveyed the same general principle as that requested by the dog owner. The appellate court further concluded that there was no meaningful distinction between the words "vicious" and "dangerous" as used in the context of an action stemming from a dog bite. Finally, the appellate court concluded that the evidence was sufficient to support the verdict, noting the dog owner's testimony that the dog was afraid and distrustful of strangers and would bark and growl when people leaned toward him.

CONCLUSION: The judgment of the trial court was affirmed.

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City of Richardson v. Responsible Dog Owners of Texas case brief

City of Richardson v. Responsible Dog Owners of Texas case brief 794 S.W.2d 17

CASE SYNOPSIS: Petitioner, City of Richardson, challenged the judgment from the Court of Appeals of Texas, Fifth District, which reversed the trial court's summary judgment in favor of petitioner and held that petitioner's ordinance regulating the keeping of dogs was preempted by the Texas Penal Code.

FACTS: The court of appeals reversed the trial court's summary judgment in favor of petitioner, City of Richardson, and held that petitioner's ordinance regulating the keeping of dogs was preempted by the Texas Penal Code because it proscribed the same conduct as the Texas Penal Code. The court observed that the ordinance was a comprehensive attempt to address the control of all animals. Whereas Tex. Penal Code Ann. § 42.12 was limited to the control of dogs that have actually engaged in vicious conduct. Under Tex. Const. art. XI, § 5, home-rule cities had broad discretionary powers provided that no ordinance contained any provision inconsistent with the Texas Constitution, or of the general laws enacted by the Legislature of the state. Although there was a small area of overlap in the provisions of the narrow statute and the broader ordinance, the court held that it was not fatal. Thus, Tex. Penal Code Ann. §§ 1.08 and 42.12 was not a preemption of petitioner's power to adopt the comprehensive animal control ordinance. The judgment of the court of appeals was reversed, and the cause remanded to for consideration of points of error that were previously left unaddressed.

CONCLUSION: The court reversed the judgment of the court of appeals as the penal code did not preempt the petitioner's comprehensive animal control ordinance. The court then remanded the cause to the court of appeals for it to consider points of error that were previously left unaddressed.

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Vanater v. Village of South Point case brief

Vanater v. Village of South Point case brief
717 F.Supp. 1236

CASE SYNOPSIS: Plaintiff dog owner brought an action against defendant village seeking a declaratory judgment and a permanent injunction by which he challenged the constitutionality of Ordinance Number 87-6 of the Village of South Point (Ohio), which prohibited ownership or harboring of Pit Bull Terriers or other vicious jobs in the limits of the village.

FACTS: The village argued that the ordinance in question was passed as a valid exercise of its police power. It was established that property of citizens was held subject to the general police power of the state and could be regulated by the state. Ohio Const. Art. I, § 19 provided that personal property rights were subordinated to the general welfare. Control of dogs fell within the police power over public health and safety. Though citizens could not be deprived of property without process and assuming dogs to be property, the court still found that they were subject to the police power where they jeopardized public health or safety. Legislation passed to protect the public safety had a strong presumption of constitutionality. The constitutionality test in such a case was whether the legislation had a rational relation to a legitimate governmental interest. The ordinance was reasonable considering the special threat posed by Pit Bulls. The ordinance provided a meaningful standard and was not vague and there was no arbitrary distinction between Pit Bulls and other dogs. Finally, the statute was not overbroad and did not pose difficulties in enforcement that unduly burdened dog owners.

CONCLUSION: The court upheld the constitutionality of Ordinance Number 87-6 of the Village of South Point (Ohio).

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State v. Cowen case brief

State v. Cowen case brief 
103 Ohio St.3d 144
 

CASE SYNOPSIS: Defendant appealed a judgment from the Toledo Municipal Court (Ohio), which convicted him of violations of Toledo, Ohio, Code § 505.14(a) and Ohio Rev. Code Ann. § 955.22. The trial court found that the state and local "vicious dog" laws were constitutional.

FACTS: Defendant owned three pit bull type dogs, which were family pets who had no history of aggressive or unlawful behavior. Upon a report of the dogs' presence being filed with the county dog warden, one dog was given away, one was confiscated and destroyed, and one was kept by defendant. Defendant was charged by the city with local and state statutory violations. The trial court denied defendant's dismissal motion, finding that Ohio Rev. Code Ann. §§ 955.22 and 955.11(A)(4)(a)(iii), and Toledo, Ohio, Code § 505.14(a) were constitutional, although it noted that pit bulls were not, as a breed, more dangerous than other breeds. On appeal, the court found that the statutes were unconstitutionally violative of procedural due process, as defendant could not rebut the presumption that his dogs were "vicious" before being charged. Further, the statutes were void for vagueness under that constitutional principle due to the subjective identification procedures. The statutes also violated equal protection and substantive due process where there was no rational basis to single out the pit bull as inherently dangerous, based on the current evidence regarding the breed.

CONCLUSION: The court reversed the judgment of the trial court and vacated defendant's convictions.

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Toledo v. Tellings case brief

Toledo v. Tellings case brief
2006 Ohio 975

CASE SYNOPSIS: Defendant appealed a judgment from the Toledo Municipal Court (Ohio), which convicted him of violations of Toledo, Ohio, Code § 505.14(a) and Ohio Rev. Code Ann. § 955.22. The trial court found that the state and local "vicious dog" laws were constitutional.

FACTS: Defendant owned three pit bull type dogs, which were family pets who had no history of aggressive or unlawful behavior. Upon a report of the dogs' presence being filed with the county dog warden, one dog was given away, one was confiscated and destroyed, and one was kept by defendant. Defendant was charged by the city with local and state statutory violations. The trial court denied defendant's dismissal motion, finding that Ohio Rev. Code Ann. §§ 955.22 and 955.11(A)(4)(a)(iii), and Toledo, Ohio, Code § 505.14(a) were constitutional, although it noted that pit bulls were not, as a breed, more dangerous than other breeds. On appeal, the court found that the statutes were unconstitutionally violative of procedural due process, as defendant could not rebut the presumption that his dogs were "vicious" before being charged. Further, the statutes were void for vagueness under that constitutional principle due to the subjective identification procedures. The statutes also violated equal protection and substantive due process where there was no rational basis to single out the pit bull as inherently dangerous, based on the current evidence regarding the breed.

CONCLUSION: The court reversed the judgment of the trial court and vacated defendant's convictions.

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Carter v. Metro North Associates case brief

Carter v. Metro North Associates case brief
255 A.D.2d 251

CASE SYNOPSIS: Appellant landlords challenged the decision of the lower court, which denied the landlords' motion for summary judgment in appellee tenant's strict liability claim against the landlord.

FACTS: The tenant of a building owned and managed by the landlords was attacked and bitten on the face by a pit bull owned by another resident. There was no evidence indicating that the dog had ever attacked any other individual, or had previously displayed any vicious behavior. The tenant brought an action against the landlord for strict liability. The lower court took judicial notice of the vicious nature of pit bulls as a breed and denied the landlords' motion for summary judgment. On appeal, the court reversed. The court concluded that the lower 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. The court noted that there were alternative opinions concerning the propensities of pit bulls that precluded judicial notice such as was taken by the court. The court found no causal connection between the landlords' failure to enforce the "No Pets" provision of the lease and the tenant's injuries.

CONCLUSION: The court reversed the lower court's decision denying the landlords' motion for summary judgment dismissing the tenant's complaint.

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Plowman v. Pratt case brief

Plowman v. Pratt case brief
684 N.W. 2d 28 
 

CASE SYNOPSIS: Appellant, claimant, was attacked and injured by a pit bull terrier. The claimant filed an action against appellees, dog owner and the dog owner's landlord. The District Court for Douglas County, Nebraska, granted the motion for summary judgment filed by the landlord, and the claimant appealed.

FACTS: The district court held that the landlord was liable for injuries caused by the attack of a tenant's dog only when the landlord had "actual knowledge" of the dangerous propensities of that dog, and determined that the landlord did not have actual knowledge of the dog's dangerous propensities. The claimant argued that a different standard should be adopted, wherein the landlord was liable if the landlord "knew or should have known" of the dog's dangerous propensities. The appellate court declined to adopted the standard asserted by the claimant, as the appellate court determined that the actual knowledge standard represented the better rule. The actual knowledge standard was appropriate because it held landlords responsible for failing to act against certain known, unreasonable risks, while recognizing that, as a general rule, tenants enjoyed a level of privacy in their rental premises. Also, the district court did not err in concluding that the landlord did not have actual knowledge of the dog's dangerous propensities. Normal canine behavior, such as a dog barking at a stranger, was not sufficient to infer that the landlord had actual knowledge of a dog's dangerous propensities.

CONCLUSION: The judgment was affirmed.

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Tucker v. Duke case brief

Tucker v. Duke case brief
873 N.E2d 664

CASE SYNOPSIS: Plaintiff injured party filed a small claims action alleging negligence against defendants, a dog owner and the dog's keeper. The Blackford Superior Court (Indiana) entered judgment against defendants in the amount of $ 6,000 plus interest and costs, and denied the dog keeper's motion to correct error. The dog keeper appealed.

FACTS: The evidence showed that the dog keeper kept the dog, a pit bull belonging to his girlfriend, on his property staked to a chain for four months and that the pit bull became loose on the day in question and attacked the injured party on her own property. On appeal, the dog keeper argued that the small claims court's decision was error because there was absolutely no evidence that he knew or should have known of any vicious propensity on the part of the dog. The appellate court held that the small claims court's judgment that the dog keeper was liable on grounds of negligence was not clearly erroneous. While the dog did not have a history of violence, the dog had been chained to a stake in the dog keeper's backyard for four months, allowing for a reasonable inference that the dog had become dangerous and vicious due to lack of training and socialization. In addition, the dog owner testified that she had previously had two pit bulls that had to be put to sleep because they exhibited dangerous propensities and the appellate court noted that the particular breed was known for having such dangerous propensities.

CONCLUSION: The judgment of the trial court was affirmed.

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State of Florida v. Peters case brief

State of Florida v. Peters case brief
534 So.2d. 760

CASE SYNOPSIS: The state sought review of the order of the Circuit Court for Dade County (Florida) granting appellee dog owners' motion to dismiss the charges against them for violating their city's pit bull ordinance.

FACTS: The City of North Miami enacted an ordinance regulating the ownership of pit bull dogs. Appellees were charged with violating the ordinance and moved to dismiss the charges, contending that the ordinance violated equal protection and due process rights and was unconstitutionally vague. The trial court granted the motion holding that the ordinance was overbroad, vague, and irrational. On appeal, the court reversed and remanded rejecting appellee's claims. First, the court held that equal protection did not guarantee that all dog owners would be treated alike, only that all pit bull owners would be similarly treated. Furthermore, the ordinance was reasonably related to its goal of protecting the city's residents. Second, the ordinance's requirement that pit bull owners obtain insurance did not violate the owner's constitutional right to due process because dogs were subject to the police power of the state for the necessary protection of its citizens. Finally, appellee's vagueness claim had no merit because the ordinance made clear what dogs were considered to be pit bulls and the standards referred to in the ordinance were adequate for owners to assess whether they owned such a dog.

CONCLUSION: The order granting appellee dog owners' motion to dismiss their charges of violating the city's pit bull ordinance was reversed and the matter remanded because the ordinance did not violate appellee's equal protection or due process rights, nor was the statute unconstitutionally vague.

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American Dog Owners Ass'n, Inc. v. Dade County, Florida case brief

American Dog Owners Ass'n, Inc. v. Dade County, Fla. case brief
728 F.Supp. 1533

CASE SYNOPSIS: Plaintiff association brought an action against defendant county under the Civil Rights Act, 42 U.S.C.S. §§ 1983-1988 and the Declaratory Judgment Act, 28 U.S.C.S. §§ 2201-2202, challenging the constitutionality of Dade County, Fla., Ordinance No. 089-22, regulating the ownership of pit bull dogs. The county requested a stay of the proceeding until a state court had construed the ordinance.

FACTS: The association challenged the constitutionality of the county's ordinance that regulated the ownership of pit bull dogs and required that the dogs be confined, leashed, and muzzled. The association claimed that the definition section of the ordinance was impermissibly vague and that the enforcement section failed to establish guidelines. The parties agreed that the ordinance was otherwise a valid exercise of police power that was rationally related to a legitimate governmental interest. The court exercised jurisdiction because a state court had interpreted a similar statute and the matter presented urgency that militated against delay. The court entered judgment in favor of the county because it found that: 1) the ordinance regulated a group that had special knowledge of the matter being regulated; 2) there was no better method of breed identification than the standards used in the ordinance; 3) the enforcement agency promulgated special standards which reduced the level of precision of definition needed by due process; and 4) the ordinance afforded fair warning of the proscribed conduct.

CONCLUSION: The court entered judgment in favor of the county in the association's pre-enforcement challenge to the constitutionality of the ordinance regulating pit bull dog ownership.

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Haines v. Hampshire County Commission case brief

Haines v. Hampshire County Commission case brief
607 S.E.2d 828

CASE SYNOPSIS: Appellant dog owners sought review of an appeal of the Circuit Court of Hampshire County, (West Virginia), which dismissed the owners' amended complaint filed against appellees, a county commission and the county animal control officer. The owners alleged that their dog had been wrongfully detained and sold by appellees without notice to them.

FACTS: The owners filed an action that sought repossession of their dog, monetary damages and removal of the officer from his position. The action arose after the animal control officer received complaints about the owners' stray dog, and not being able to identify the dog, impounded it. After the mandatory period for keeping the dog had passed, and the dog remained unclaimed, the officer placed the dog in an adoption program where it was adopted by another family in Virginia. The court held that dismissal of the owners' amended complaint was appropriate, because the owners' allegations did not state a legal basis upon which any of their requested relief could be granted. Appellees followed the proper procedures in enforcing the state statutory provisions for impoundment and notice of impoundment, as set forth in part in W. Va. Code §§ 19-20-22 (1981), 19-20-6 (1982), and 19-20-8(1991). The facts of the case did not warrant intervention or relief by the trial court, and in fact a finding in the owners' favor would virtually nullify the animal control laws.

CONCLUSION: The court affirmed the decision of the trial court.

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Morgan v. Kroupa case brief

Morgan v. Kroupa case brief
167 Vt. 99

CASE SYNOPSIS: Defendant owner sought review of a decision of the Addison Superior Court (Vermont), which awarded possession of a dog to plaintiff finder.

FACTS: The finder found the owner's lost dog and took it home. She posted notices and contacted the humane society but was unsuccessful in locating the owner. When the owner found the dog, the finder did not want to return it. Nonetheless, when the owner prepared to leave, the dog jumped into the owner's truck, and he left with the dog. The finder filed an action in replevin to recover the dog. The trial court entered judgment for the finder and returned the dog to her. The court ruld that the finder had substantially complied with the lost property statute Vt. Stat. Ann. tit. 27, §§ 1101-1110, and therefore she was entitled to the dog. On appeal, the court affirmed. The court held that the trial court properly awarded possession to the finder, because she diligently attempted to locate the owner and responsibly sheltered and cared for the dog over a year.

CONCLUSION: The court affirmed the judgment that awarded possession of the dog to the finder.

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LaMare v. North Country Animal Rescue case brief

LaMare v. North Country Animal Rescue case brief
743 A.2d 598

CASE SYNOPSIS: Plaintiff former dog owners appealed from a summary judgment of the Lamoille Superior Court (Vermont) granted in favor of defendants, animal league and present dog owners, challenging the court's ruling that their possessory interest in a lost dog had been transferred to defendants under the township's dog control ordinance and alleging a violation of procedural due process.

FACTS: Plaintiff former dog owners lost their dog, which was found loose, without tags; dog was delivered to animal control, which placed notices throughout town, in accordance with the local ordinance, and then placed dog with defendant animal league, which adopted dog out to defendant present dog owners. Plaintiffs sued to recover their dog. Cross-motions for summary judgment were filed, and judgment was awarded in favor of defendants. Plaintiffs appealed, challenging the validity of the transfer of possession of their personal property, alleging a violation of their procedural due process right. Judgment was affirmed; the statute authorizing towns to regulate loose domestic pets empowered the town to take possession of plaintiff's dog at large, and the provision authorizing the sale or humane disposal of the pet constituted necessary and essential power. The town had not exceeded its authority. Plaintiffs' due process right was not deprived because the posting of descriptive notices throughout the town provided ample notice consistent with local ordinance, state law, and due process requirements.

CONCLUSION: Judgment was affirmed because statute authorizing towns to regulate running at large of domestic pets empowered town to take possession of plaintiff's dog, when found running loose without tags, and provision authorizing town to sell/dispose of pet in humane fashion constituted necessary/essential power; therefore town did not exceed its authority.

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Koepke v. Martinez case brief

Koepke v. Martinez case brief
84 S.W.3d 393

CASE SYNOPSIS: Appellee victim sued appellant dog seller in the 275th District Court of Hidalgo County, Texas, for negligence and other claims after he was attacked by a dog. The jury awarded zero damages. The trial court then granted the victim a judgment notwithstanding the verdict and awarded damages. The dog seller appealed.

FACTS: The dog seller agreed to sell a dog to the victim's wife's employer. Because the employer was out of town, the victim's wife agreed to exchange the employer's money for the dog and take it to her employer's home. Thereafter, the victim went into the backyard to feed the animal and was attacked, suffering several injuries. The victim sued the dog owner, but the jury found contributory negligence and awarded no damages. The trial court entered a judgment notwithstanding the verdict and awarded damages. The dog seller appealed, arguing the trial court should have granted his directed verdict because he owed no duty to the victim as a matter of law. The appellate court held the gist of an action brought to recover for injuries caused by a domestic animal, resulting from other than known vicious propensities, was usually negligence of the owner in the keeping or handling of an animal. The appellate court concluded the dog seller was neither the owner, nor the handler, of the dog at the time of the incident; therefore, he owed the victim no duty.

CONCLUSION: The judgment of the trial court denying the dog seller's motion for directed verdict was reversed and judgment was rendered in his favor.

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Blaha v. Stuard case brief

Blaha v. Stuard case brief
640 N.W.2d 85

CASE SYNOPSIS: Appellant mother, as guardian ad litem for her minor child, sued appellee sellers for personal injury alleging negligence, breach of warranties, negligent infliction of emotional distress, and strict liability when a dog sold by the sellers bit the minor child. The Circuit Court Of The First Judicial Circuit, Charles Mix County (South Dakota), granted summary judgment for the sellers. The mother sought review.

FACTS: On appeal, the supreme court noted that dogs are goods and not products. Although South Dakota adopted the rule of strict liability in tort in product liability cases, dogs were not products, and thus there was no strict liability in tort. The negligence and negligent infliction of emotional stress claims also failed, as the child's mother failed to allege facts sufficient to support the contention that the dog was an abnormally dangerous animal. There was no evidence in the record to demonstrate that the dog had a prior propensity for dangerous behavior. Moreover, at the time of the incident, the dog was not possessed by the sellers. The negligent infliction of emotional stress claim also failed, as there was no breach of duty by the sellers of the dog, as the sellers did not provide incorrect information regarding the dog's past behavior. Finally, the sellers did not breach any express or implied warranties, as at the time of the dog's purchase, the only warranty expressed by the sellers was that the dog was a good retriever. There was no warranty concerning the dog's disposition around people in the future.

CONCLUSION: The judgment of the circuit court was affirmed.

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Desanctis v. Pritchard case brief

Desanctis v. Pritchard case brief
803 A.2d 230 
 

CASE SYNOPSIS: Appellant former husband appealed the order of the Chester County Court of Common Pleas (Pennsylvania), dismissing the former husband's complaint and appellee former wife's counterclaim. The husband requested injunctive relief mandating shared custody of the wife's dog.

FACTS: The husband and wife were divorced. During their marriage, the wife bought a dog. Pursuant to their divorce, the parties entered into a property settlement dealing with the dog's future. The agreement stated that the dog was the wife's property, and the wife was to have full custody of the dog. Furthermore, the agreement provided for an arrangement allowing the husband to visit the dog. Afterwards, the wife moved away and no longer made the dog available for the husband's visits. The husband filed a complaint in equity. The appellate court found that any terms set forth in the agreement were void to the extent that they attempted to award custodial visitation with, or shared custody of, personal property. Because the dog was the wife's personal property, the wife could eliminate the husband's access to the dog.

CONCLUSION: The order was affirmed.

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Raymond v. Lachmann case brief

Raymond v. Lachmann case brief
695 N.Y.S.2d 308

CASE SYNOPSIS: Defendant appealed from an order of the Supreme Court, New York County (New York), which, inter alia, granted plaintiff's cross-motion for summary judgment to the extent of declaring that plaintiff was entitled to ownership and possession of the subject cat, conditioned upon plaintiff's payment for all veterinary expenses incurred by the cat since May, 1995. The court also granted defendant's motion for, inter alia, the imposition of sanctions.

FACTS: Plaintiff brought action against defendant for possession of a cat. The lower court granted plaintiff's cross-motion for summary judgment, and declared that plaintiff was entitled to ownership and possession of the cat. The lower court ordered that such ownership and possession was contingent, however, upon plaintiff's payment for all veterinary expenses incurred by the cat since a certain date. The lower court also granted defendant's motion for the imposition of sanctions as a result of improper actions during discovery. The appellate court reversed the decision of the lower court. The court held that, while it was cognizant of the cherished status accorded to pets and the strong emotions engendered by disputes of this nature, on the record presented, it was best for all concerned that, given the cat's limited life expectancy, it should remain with defendant. The court found that the cat had lived, prospered, and been loved for the past four years while residing with defendant. The court also held that, while it did not condone the conduct of plaintiff's counsel during discovery, it would not impose sanctions for improper discovery practice under the circumstances of the case.

CONCLUSION: The appellate court reversed summary judgment for plaintiff in its action for possession of a cat. The court held that on the record presented, it was best for all concerned that the cat should remain with defendant, where it had lived, prospered and been loved for four years. The court therefore denied plaintiff's cross-motion for summary judgment and granted judgment to defendant awarding her ownership and possession of the cat.

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Marshall v. Darmody-Latham case brief

Marshall v. Darmody-Latham case brief
783 N.Y.S.2d 738

CASE SYNOPSIS: Plaintiff victim of a dog bite sued defendant owner of a dog, seeking damages arising from a dog bite incident. The Supreme Court, Onondaga County (New York), entered summary judgment in favor of the owner. The victim appealed.

FACTS: The owner testified at her deposition that she had never seen the dog bark or growl at anyone, nor had she seen him bite anyone. She was aware that he had been in dog fights before he was rescued by an animal shelter. An investigator for the shelter averred in an affidavit that she knew that the dog was gentle and friendly. She never saw him bite, growl, or bare his teeth, and she never told the owner that the dog was prone to violence. The victim had gotten between the dog and another dog in a fight, and testified that, although he did not see which dog bit him, he was certain it was the owner's dog. The hospital record, however, stated that the owner believed that he had been bitten by a different dog. The appellate court found that the owner established that she had no knowledge that the dog had vicious propensities. In the absence of evidence that the dog was the aggressor in any previous dog fights, the victim failed to raise an issue of fact whether the owner knew or should have known that the dog had vicious propensities.

CONCLUSION: The order was affirmed.

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Feger v. Warwick Animal Shelter case brief

Feger v. Warwick Animal Shelter case brief
814 N.Y.S.2d 700

CASE SYNOPSIS: Plaintiff owner appealed an order by the Orange County Supreme Court (New York) that dismissed the owner's action to recover possession of a cat and for damages from defendants, an animal shelter and its employee.

FACTS: The owner alleged that a white Persian cat surrendered to the shelter by an unidentified person and adopted by an unidentified family was actually her champion pure-bred Persian cat that was stolen from her home. The trial court found that the shelter and its employee were entitled to statutory immunity pursuant to N.Y. Agric. & Mkts. Law § 374(3). The appellate court held that in light of the owner's allegation that the shelter and its employee knowingly accepted a stolen cat for adoption, the trial court erred in granting their motion for summary judgment. However, the shelter and its employee were correct in stating that the owner could not recover damages for the emotional harm she allegedly suffered from the loss of her cat.

CONCLUSION: The order was modified by deleting the grant of summary judgment based on statutory immunity, and by substituting therefor a provision denying the motion; as so modified, the order was affirmed, and the causes of action were reinstated.

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Bussell v. Tri-County Humane Society case brief

Bussell v. Tri-County Humane Society case brief
50 S.W.3d 303

CASE SYNOPSIS: The Circuit Court of Warren County, Missouri, granted summary judgment in favor of respondents, dog owners and humane society, after appellant mother brought suit after the dog bit her minor child. The mother appealed.

FACTS: The mother claimed the trial court erred in granting summary judgment in favor of the former owner because he owed a duty to the public to protect it from the dog, and there were genuine issues of material fact regarding the transfer of the dog's ownership; and in granting summary judgment in favor of a woman who looked after the dog regarding whether she acted as an agent of the former owner and whether she made misrepresentations of fact as to the dog's nature. The court found it was not possible to demonstrate whether the dog demonstrated vicious propensities that would trigger the former owner's duty to protect the public. There was no indication on the record that the dog's bite was one that would trigger the former owner's liability for subsequent bites. The woman who looked after the dog neither owned nor harbored dogs at any time, and had no knowledge of their propensities. As a matter of law, she could not be held strictly liable for the dog's actions.

CONCLUSION: The judgment was affirmed.

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Parrish v. Wright case brief

Parrish v. Wright case brief
828 A.2d 778

CASE SYNOPSIS: Plaintiff dog bite victim appealed from a summary judgment of the Superior Court, Hancock County (Maine), in favor of defendant landowners in an action seeking recovery for injuries under theories of statutory liability under former Me. Rev. Stat. Ann. tit. 7, § 3961 (Pamph. 1999) and of common law strict liability for damage done by animals and common law negligence.

FACTS: The landowners used their Maine cottage a few months each year, but allowed their grown daughter, a Maine resident, to use it as she wished. One week-end when she and her dog were in the house, the dog ran off the property to fight with the victim's dog, as they passed by on a walk, and bit the victim. The court held that there was no way the landowners could be considered the "owners or keepers" of the dog for purposes of statutory liability, under either the older or the amended version of the statute. Furthermore, the landowners could not be said to have knowingly harbored a dangerous domestic animal for purposes of common law strict liability. There was no evidence that the dog was abnormally dangerous at all, let alone that the landowners knew about it. Finally, again in part because the dog was not known to be dangerous but mainly because the landowners were not even in-state, they had no duty to the victim, who was not even on their property, to protect him against a danger of which they did not know, that happened to emerge off their property.

CONCLUSION: The court affirmed the judgment.

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In re Marriage of Stewart case brief

In re Marriage of Stewart case brief
356 N.W.2d 611

CASE SYNOPSIS: Respondent wife appealed the Iowa District Court for Marshall County's decree in petitioner husband's action for marriage dissolution. She contended that the property division was inequitable and that she should have been awarded alimony and the family dog.

FACTS: In a dissolution case, the trial judge set aside to the husband stock that was gifted to him before and during marriage, and then divided the balance of the marital property, which resulted in a nearly equal division. The wife contended that the division was unfair and that she should have been awarded alimony and the dog. On appeal, the court affirmed the trial court's division, refusal to award alimony, and decision to award the dog to the husband. The court reasoned that the wife was not entitled to a greater share of the property or alimony because of her contributions to the husband's education. His expenses were paid by his parents and his own income. After his graduation his income exceeded the wife's. Further, although his degree, which enhanced his earning capacity, was a factor to consider, the wife also had a degree and obtained work as remunerative as the husband's. The court did not consider the gifted property because it generated little income and there was no proof that it enhanced the parties' life style. The court also considered the parties' almost equal earning records. There was no reason to disturb the trial court's decision awarding the dog to the husband.

CONCLUSION: The court affirmed the trial court's property division, refusal to award alimony, and decision to award the dog to the husband in the husband's action for dissolution of the parties' marriage.

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Coogle v. Jahangard case brief

Coogle v. Jahangard case brief
271 Ga.App. 235

CASE SYNOPSIS: Plaintiff mother, on behalf of herself and her minor child, sued defendants, a dog's previous owners, seeking damages in connection with a dog bite. The Georgia trial court granted the previous owners' motion for summary judgment. The mother appealed.

FACTS: The mother argued that the previous owners were liable because they gave the dog to its current owner knowing it had bitten someone before, but failed to inform him of this. The appellate court noted that the mother pointed to no law placing a duty upon a dog owner to warn a person to whom he gave a dog of a prior biting incident, and had not cited any authority holding that a former dog owner was liable to a third party for failing to warn a new owner of a prior biting incident. Further, she could not show that the previous owners’ alleged failure to warn caused the injury; although the subsequent owner claimed he would not have taken the dog had he known the dog had bitten before, he kept it and allowed the child to play with it even after the dog nipped at another child. As the mother never alleged a cause of action under the dog bite statute, O.C.G.A. § 51-2-7, or that the previous owners still owned the dog at the time of the incident, she could not claim that genuine issues of material fact existed concerning their liability under § 51-2-7. She could not change her entire theory of recovery on appeal in an effort to survive a motion for summary judgment.

CONCLUSION: The judgment was affirmed.

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Bennett v. Bennett case brief

Bennett v. Bennett case brief
655 So.2d 109

CASE SYNOPSIS: Appellant husband challenged a judgment from the Circuit Court for Duval County (Florida) that, in his and appellee wife's dissolution proceeding, awarded custody of the parties' dog to appellant but awarded appellee visitation with the parties' dog. Appellant claimed that the trial court erred in awarding appellee visitation and erred in modifying the final judgment to increase appellee's visitation rights with the dog.

FACTS: Appellant husband challenged a judgment that, in his and appellee wife's dissolution proceeding, awarded custody of the parties' dog to appellant but awarded appellee visitation rights. The court reversed the judgment. The court noted that while a dog could be considered by many to be a member of the family, under Florida law, animals were considered to be personal property. Thus, the court ruled, because there was no authority which provided for a trial court to grant custody or visitation pertaining to personal property, Fla. Stat. ch. 61.075 (1993), the court erred in granting appellee such visitation rights. The court remanded for the trial court to award the animal pursuant to the dictates of the equitable distribution statute.

CONCLUSION: The court reversed a judgment that, in the parties' dissolution action, awarded appellant husband custody of the parties' dog but awarded appellee wife visitation rights with the dog. The trial court lacked authority to order visitation with personal property, and the dog was personal property under Florida law.

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State v. McDonald case brief

State v. McDonald case brief
110 P.3d 149

CASE SYNOPSIS: Defendant was convicted of 58 counts of class C cruelty to animals, a lesser included offense of the class B counts for which she was charged. The First District Court, Logan Department, Utah, imposed consecutive sentences which totaled over 14 years, but it suspended all but two days of the sentence and placed her on probation. Defendant appealed, challenging the sufficiency of the evidence and her sentence.

FACTS: Defendant purportedly had the purpose of creating a "sanctuary" for stray cats. She left the cats in an enclosed trailer. Many of the cats had to be euthanized because of their condition. Defendant objected to two lines of testimony that were presented. First, she objected to the testimony of an animal services officer regarding a previous incident where he found her in possession of 53 cats. Second, she objected to various statements that, she alleged, suggested that she had stolen or otherwise improperly obtained the cats in her possession. However, the appellate court found that the main thrust of said testimony was to show proof of defendant's knowledge that such conduct was likely to result in sickness or injury to the cats that she was confining. Thus, that evidence was not overly prejudicial or inadmissible under Utah R. Evid. 404(b). Secondly, the evidence supported defendant's conviction under Utah Code Ann. § 76-9-301 (2003). However, the trial court erred when it sentenced her to over 14 years of probation for her misdemeanor offenses. The probationary term for a class C misdemeanor could not exceed 12 months pursuant to Utah Code Ann. § 77-18-1(10)(a)(1) (2003).

CONCLUSION: The trial court's probation order was terminated after 12 months, or no later than February 26, 2004. Defendant's convictions were affirmed in all other respects.

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Cat Champion Corp. v. Primrose case brief

Cat Champion Corp. v. Primrose case brief
149 P.3d 1276

CASE SYNOPSIS: Appellant animal organization challenged a decision from the Circuit Court, Linn County (Oregon), which denied its petition for a limited protective order under Or. Rev. Stat. § 125.650 pertaining to respondent owner's cats.

FACTS: The organization obtained the owner's cats due to neglect. She was charged with criminal animal neglect, but the charges were dismissed after a psychological evaluation. The organization had a lien for its reasonable expenses in caring for the animals. It sought a protective order under Or. Rev. Stat. § 125.650 to allow it to place the cats in adoptive homes. After the request was denied, the organization sought review. In reversing, the appellate court determined that, before a protective order could have been entered, the trial court was required to find that grounds existed for the appointment of either a guardian, a conservator, or a temporary fiduciary. If it decided to appoint one, it could appoint a fiduciary whose authority was limited to certain acts needed to implement the protective order. The organization met the requirements of a conservator because the owner was unable to manage her financial affairs. The owner's property, the cats, required management or protection. Finally, a conservator was allowed to dispose of estate assets. Therefore, the trial court had the authority to enter the requested order.

CONCLUSION: The decision was reversed, and the case was remanded for entry of the protective order.

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