Verdicts split in recent cases with implications for animal shelter liability
From ANIMAL PEOPLE, June 2011:
SACRAMENTO, SALT LAKE CITY, ST. LOUIS--Three court cases with implications for animal shelters and adoption agencies that hold and rehome dogs who subsequently attack a person recently split with one verdict for the defendant, two for the plaintiffs.
In the one case actually involving an animal shelter, the Missouri Court of Appeals Eastern District on April 26, 2011 upheld a previous circuit court ruling that the Humane Society of Missouri should not share liability with adopter Linda D. Rich of St. Louis for a dog attack that occurred more than a year after Rich adopted the dog.
The dog, who apparently had no known bite history, reportedly resided at the Humane Society of Missouri shelter for two months prior to adoption. Several weeks after the adoption, Rich testified, she notified the humane society that the dog had bitten a child. Rich alleged that she was encouraged to “give the dog more time,” and to enroll the dog in a behavior modification class, but was not told that the Humane Society of Missouri has a policy of itself “not retaining” dogs who bite.
Not isolated incident
“A year later the dog bit another child, Marissa Miles. It’s easy enough to see why Miles and her family thought Rich had been negligent,” assessed Sarah Fenske for Zifflaw.com. “This bite was not an isolated incident. But the court decided that was not the Humane Society’s fault, no matter what its advice to Rich.”
“The Humane Society did not possess, harbor, or control the dog when it bit Ms. Miles,” wrote the appellate judges. “As a result,” they found, “it had no duty under common negligence principles to prevent the harm to Ms. Miles.” Rich contended that the Humane Society “assumed a duty to take steps to prevent injury to Ms. Miles by screening dogs it put up for adoption and preventing their release to the public,” the judges continued, but they concluded that is not the case. “The question of whether a duty exists depends upon a calculus of policy considerations,” the judges found.
Two factors central to the verdict appear to be that the Humane Society of Missouri did not rehome a dog of known problematic history, and that both bite incidents occurred after the dog had been with Rich for long enough to have experienced some behavioral change associated with living in a very different environment from that of the shelter. Past rulings in various states which have found animal shelters responsible for attacks by adopted dogs have mostly involved dogs who were rehomed within 48 hours of a fatal attack or disfigurement.
The breed of the dog whom Rich adopted and the extent of the injuries to the victim were not disclosed in the verdict.
“By the time this case reached the appellate level,” wrote Fenske, “Rich and Miles had already come to a settlement [covering the injuries]. The only question remaining was whether the Humane Society of Missouri should also be on the hook. With that settled, this lawsuit appears to be dead.”
Also on April 26, 2011, Andy Furillo of the Sacramento Bee reported that a Sacramento Superior Court judge found the Sacramento County Sheriff’s Department negligent for an August 2008 attack in which two pit bulls belonging to purse snatching suspects Cynthia Michelle Peters and Mark Steven Parr mauled Motel 6 janitor Miguel Gutierrez while deputies were serving a search warrant on Peters and Parr. Peters and Parr, now 43 and 46, later received two-year sentences for grand theft. The detectives serving the warrant fatally shot both pit bulls, but only after Gutierrez had already been injured.
After the finding of negligence, Furillo wrote, the jury in the case brought by Gutierrez against the Sheriff’s Department “awarded Gutierrez $974,000 in damages, including $850,000 for pain and suffering. But the jury found the Sheriff’s Department only liable for 20% of Gutierrez’s injuries from the attack–about $170,000 of the pain and suffering award,” Furillo continued. “The county did not contest Gutierrez’s nearly $125,000 in medical bills. The jury found the dogs’ owners liable for 40% of the damages and Motel 6 management liable for the other 40%. But Gutierrez’s lawyer, Robert Thurbon, said that his client will not collect any damages from those two sources because they are not defendants in the suit.
“The managers of the Motel 6 told deputies that there were no dogs in the room,” Furillo noted. Though misinformed, the Sheriff’s Department was found to be negligent for failing to keep Gutierrez safely away from a hazard which could nonetheless have been anticipated.
As the Sacramento ruling was not issued by an appellate court, it will not have precedental status until and unless it is appealed and upheld. The legal reasoning involved, however, parallels the considerations that might be involved in cases in which a dangerous dog attacks a visitor to an animal shelter who somehow enters an insufficiently secured restricted area.
For example, on March 16, 2010 six-year-old Zachary Handzel of Noblesville, Indiana opened the door to a visitation room at the Hamilton County Humane Society and was attacked by a pit bull, suffering injuries to his face, hand, wrist, ankle, and foot. Hamilton County Sheriff’s Department spokesperson Vicky Dunbar told Melanie D. Hayes of the Indianapolis Star that the dog was secluded in the visitation room because he had been medicated for a pinched nerve. Signs warned that the room was a restricted area, but the doors were not locked. At last report the Handzel family was investigating a lawsuit.
Bear case raises issues
U.S. District Judge Dale Kimball, of Salt Lake City, Utah, on May 5, 2011 awarded $1.9 million to the family of Sam Ives, 11, who was killed by a bear at a U.S. Forest Service campsite in the American Fork Canyon. Though the death was inflicted by a wild animal, the Ives case was closely watched by lawyers who handle dog attack cases involving animal shelters, because the central issue was the extent to which a public agency may be held liable for the actions of an animal who is not under the control of the agency.
This might include animals who are adopted out despite known high risk based on past behavior, or animals who are not promptly impounded after high-risk behavior is reported to an animal control agency.
Ives and his mother, brother, and stepfather Tim Mulvey set up camp on Father’s Day 2007. “The family did not know that about 12 hours earlier, at the same spot, a camper had been attacked by an aggressive black bear who showed none of the natural fear of humans common in a healthy wild animal,” summarized Tim Hull for Court-houseNews.com. In that early-morning attack, the bear hit camper Jake Francom at least twice on the head, and retreated only after Francom and fellow camper threw rocks at the bear and shot at the bear with handguns.
“Francom reported the bear attack to Utah County Dispatch,” Hull recounted, “which contacted off-duty U.S. Forest Service law enforcement officer Carolyn Gosse at home. Francom also called the highway patrol and Utah Department of Wildlife Resources. Gosse told the dispatcher that she would inform Forest Service officials about the attack, but she also mentioned that she was off-duty,” Hull continued. “Gosse failed to contact anyone or take any action of any kind,” the ruling states. “Consequently, no one else employed by the Forest Service knew about the incident, and as a result, no action was taken by defendant [the U.S. Forest Service] to warn potential campers about the bear attack.”
A possible legal parallel would be an instance in which a shelter employee is told that an impounded or surrendered dog has attacked someone, but fails to enter this information into the shelter tracking system and record it on a cage card.
Two Utah wildlife agents “unsuccessfully hunted for the bear with dogs for about five hours,” Hull wrote, but they left the scene shortly before the Ives/Mulvey family arrived, and left no warning behind.
No legal immunity
The Forest Service “argued that it was immune from suit, or, alternatively, that the killing was the fault of the state and the Mulvey family. The government claimed that Sam took a cola and granola bar with him to bed that attracted the bear,” Hull continued.
Judge Kimball, following a five-day bench trial in February 2011 and more than two months of consideration of the evidence, found the Forest Service 65% responsible for the death. Assessed Hull, “The judge found that the Forest Service was not immune from suit under the Federal Tort Claims Act because its failure to warn campers about the previous attack ‘did not involve considerations of public policy.’” Judge Kimball found the Utah Department of Wildlife Resources 25% at fault because it “had a duty to communicate its designation of the bear as a [dangerous] bear.”
Judge Kimball held the family 10% responsible because Ives had food in his tent. Concluded Hull, “Kimball awarded the family $3 million in damages, 65% of which comes out to $1.9 million. The family has a separate action pending against the Utah Division of Wildlife Resources in the Third District Court for the state of Utah.”
U.S. District Court decisions do not have precedental weight in state courts. Like the ruling in the Gutierrez case, the Ives verdict will not constitute a precedent until and unless it is appealed and upheld by an appellate court. However, the reasoning in a lower court case may be taken into consideration by courts hearing legally similar cases.
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