Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals


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Sometimes Bright Line Rules Just Aren’t the Answer: The Problem with Tracey v. Solesky

Bright line rules have their place. Society often benefits from clear, objective and unambiguous rules, when those rules produce even-handed and predictable results and  have very little risk of creating harsh or unjust results. Take speed limits, voting ages, and Miranda warnings as examples.

But sometimes life is not black and white. Bright line rules are inappropriate and dangerous tools any time the issues turn on a variety circumstances and there is a risk of sweeping up innocent activity or individuals. Then a balancing test, or case-by-case analysis, is much more appropriate.

Today, the Court of Appeals of Maryland opted for a bright line rule in exactly the kind of case where a bright line rule is inappropriate. In Tracey v. Solesky, the Court ruled:

Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.

Such a bright line rule – pit bulls are per se dangerous – is misguided. Don’t get me wrong. I in no way condone what happened in this case. The dog was left in a small pen, escaped, and attacked and seriously injured a child. The owner put the dog back in the same pen, and the dog escaped yet again, and mauled another child, causing life threatening injuries.

The dog’s breed is not the main issue in this case. The much larger issue is the fact that the owner was completely irresponsible.

There was no reason for the Court to make new law in this case. The defendant could have tried to invoke the “one free bite” rule. But, at best, the “one free bite” rule would only help him escape civil liability for money damages as to the first child. He was certainly on notice of the dog’s propensity when the second child was attacked. Additionally, the “one free bite” rule would not impede a dangerous dog proceeding, and a well-crafted dangerous dog statute can provide restitution to victims without the hassle of a civil law suit.

The most frustrating part of this ruling is that there are many pit bull and pit bull mix owners who are highly responsible and who will get swept up in this bright line rule. Likewise, the ruling will not affect the highly irresponsible owners of dogs who are not pit bulls or pit bull mixes. Dare I even mention the issue of how a court is to determine whether a dog is a pit bull or pit bull mix.

Courts and legislators should focus on owner responsibility, not breed. Fortunately, Virginia’s dangerous dog statute makes it clear that breed alone is not a reason to declare a dog to be dangerous. I hope Virginia keeps its focus on owner responsibility and does not choose to follow the path of neighboring Maryland in this regard.


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The Burden of Bailments: Lohre v. Posh Maids

On August 17, 2011, Robin Lohre asked Posh Maids to clean her home. During the several hours it would take to clean the house, Lohre needed to run errands. Lohre made sure with the employee that her dog, Ruthie, could stay in the house during the cleaning. Lohre asked the employee not to let Ruthie out of the house, and gave careful instructions of how to go in and out of the mudroom if she had to go outside. Lohre then went to run errands with her six-year-old daughter.

Posh Maids called Lohre to tell her they were able to finish the cleaning a little ahead of schedule because additional employees arrived. Lohre and her daughter came home to find Ruthie dead under the dining room table. Lohre called Posh Maids, and was told that Ruthie was hit by a car, ran back home and was “whimpering a little.”

Lohre sued Posh Maids for negligence and emotional distress for failing to inform her about Ruthie’s accident and leaving Ruthie without veterinary care. This week, Lohre secured a judgment of more than $65,000 in a precedent-setting law suit brought by The Animal Law Center in Colorado.

When Lohre left Ruthie in Posh Maids’ care, this arguably created a bailment – much like when you leave your car in a garage or you check your coat at the theater. But there is one major difference – unlike your car or coat, companion animals are living beings who require care, including emergency veterinary care.

People entrust their companions with groomers, boarders and doggie daycares every day. If you are entrusted with others’ animals, you could face a scenario similar to Posh Maids. Take a look at the following questions and answers in order to prepare yourself in the event of an emergency.

Question #1: Does the relationship between you and the animal amount to a “bailment”?

A “bailment” arises when a person temporarily gives control over or possession of personal property to another for a designated and agreed upon purpose. If you are providing services for a companion animal and the animals’ owner leaves the animal in your care, you are involved in a bailment.

Question #2: To what degree are you responsible for an animal left in your care?

In Virginia, “owners” are tasked with providing adequate care to companion animals under Virginia Code Section 3.2-6503. This involves providing adequate food, water, shelter, space, exercise, care and veterinary care. The definition of “owner” is quite broad – including “any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.”

In addition, Virginia Code Section 3.2-6518(A) specifically holds groomers and boarding establishments responsible for the care provisions of Section 3.2-6503. Failure to care for the animal properly is a Class 1 misdemeanor, punishable by up to twelve months in jail and a $2500 fine – much steeper than the $250 fine an owner faces for the same violation.

Question #3: If an emergency arises, are you responsible for getting the animal to the vet?

Yes. Plain and simple. The answer to this question is undoubtedly yes. You may or may not be liable for the vet bill, but don’t let that hold you back from getting immediate veterinary care for the animal. Section 3.2-6518 also specifies that groomers and boarding establishments must provide emergency veterinary care in the event of illness or injury.

Question #4: Are you also responsible for the vet bill?

Generally speaking, bailees, such as groomers and boarders, are liable for their own negligence. Section 3.2-6518 clarifies that the bailor/owner is liable for emergency veterinary costs, unless the animal sustained injury because the groomer or boarding establishment accidentally or intentionally failed to care for the animal adequately, or if the injury resulted from the groomer’s or boarding establishment’s actions. That code section does not require the groomer or boarder pay for treatment of injuries caused by the animal’s self-mutilation.

Question #5: Is there anything else I need to know?

If you are a Virginia boarding establishment or groomer, make sure your business and your contracts are in full compliance with the care and very specific notice requirements imposed in Section 3.2-6518 and Section 3.2-6519. If you are unfamiliar with these notice requirements, please take a look at this earlier post.

To fully protect your business and any animals in your care, make sure that you have a clear policy for your employees to follow, and an open line of communication with your clients and local veterinarians in the event of an emergency.

The Posh Maids case is a good reminder of your responsibilities and liability as a bailee. Equally significant is the fact that this case allowed damages for negligence based on the loss of a companion animal. Virginia law still does not allow damages for negligence, but there may be a door open for intentional torts or gross negligence. Stay posted for recent developments on this front in Maryland.


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My Sentiments Exactly! Medlen v. Strickland and Sentimental Value

On June 2, 2009, the Medlens’ family dog, Avery, escaped from his backyard in Tarrant County, Texas. Animal Control responded and impounded Avery as a stray. Mr. Medlen went to the pound to claim Avery, but did not have enough money that day to pay the impound fees. The pound told Mr. Medlen that he could return on June 10 to get Avery, and a “hold for owner” tag was placed on Avery’s kennel.

On June 6, a pound employee made a list of dogs to be euthanized the following day, and mistakenly included Avery’s name on that list. Avery was euthanized the next day. The Medlens discovered the mistake and tragic result when they went to reclaim Avery as planned.

The Medlens sued the employee for negligence, claiming damages to compensate them for the unique sentimental or intrinsic value that Avery had. The employee argued that the Medlens weren’t entitled to those kinds of damages, and the trial court agreed with the employee.

On appeal, the pound employee relied on an 1891 Texas case, Heiligman v. Rose, for the proposition that Texas law treats dogs differently than other “personal property,” and limits damages to market value, or some special pecuniary value based on the dog’s usefulness or services. Heiligman involved three dogs who were poisoned. The dogs were bred and “well trained,” and one of the dogs would even bark in three different ways to signal whether a man, woman or child were approaching. The plaintiff in that case testified that the dogs’ “market value” was $5, but that she wouldn’t part with them for less than $50.

Arguing to reverse the trial court, the Medlens cited cases holding that plaintiffs are entitled to the sentimental or intrinsic value of property when the property has little to no “fair market value.” The appellate courts have not had the opportunity to decide cases with companion animals since Heiligman, but have looked at cases involving family correspondence, photographs and other keepsakes, shade and ornamental trees, and wedding veils, shoes, lace collars and watches.

On Friday, the Court of Appeals for the Second District of Texas issued its opinion agreeing with the Medlens, concluding that they entitled to damages reflecting Avery’s sentimental or intrinsic value. The highlight of the Court’s opinion is this wonderful acknowledgment of the special human-dog bond:

Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property. Cf. Bueckner, 886 S.W.2d at 377–78 (Andell, J., concurring) (“Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society‘s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”). Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of “man‘s best friend” should be protected.

Although this does allow for damages based on intrinsic or sentimental value, the Texas courts may still be unwilling to allow for damages for mental anguish or pain and suffering for the loss of a companion animal. Virginia has made it clear that a plaintiff in a negligence action cannot claim damages for pain and suffering – although there is a window of hope that the Virginia courts would allow those damages in intentional tort cases. But Virginia has yet to come out clearly on the issue of damages based on a companion animals’ intrinsic or sentimental value.

This case is a wonderful example of how we can work within the confines of the law – which still considers our companions to be personal property – to achieve results that nonetheless recognize the special place that our companion animals have in our lives.

Many thanks to Debra Griggs of the Virginia Federation of Humane Societies for alerting me to this case!


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So How Much is my Dog or Cat Worth?

I’ve touched on the subject of how much a companion animal is worth in the early days of this blog. Basically, Virginia looks at companion animals as “personal property” and will generally consider the pet’s “replacement value” as the measure of what the animal is worth. Recent events made this a topic worth coming back to.

My last post talked about Indiana’s failed attempt to use tax evasion laws against owners of a puppy mill. One of the greatest weaknesses with the Indiana officials’ plan was that they sold the 240 seized dogs to the Humane Society of the United States for a mere $300. In a sting operation, Department of State Revenue officials had purchased two dogs from the puppy mill at $225 a piece, and the Department estimated the value of each dog at $300 when calculating what the owners owed in taxes, penalties and interest. Based on the tax court’s ruling, I doubt that a more realistic price tag would have helped the officials’ case, but at least it would have helped negate the argument that the Department wasn’t really looking for tax revenue to fill its coffers.

On a much more optimistic note, a federal jury recently awarded $330,000 in damages to Thomas Russell’s family, whose nine-year-old black lab named Lady was killed by police officers executing a search warrant. Two officers entered his house to search based on a search warrant in a drug investigation. Russell offered to lock Lady in a room, but the police refused. They entered the house with guns drawn and shot Lady as she rounded the corner wagging her tail. The police claimed they shot Lady in self-defense. The police found no drugs or other evidence during the search. The family sued the officers and the City of Chicago, alleging excessive force, false arrest, and infliction of emotional distress. On top of the $330,000 in damages, the jury awarded $2,000 in punitive damages against the officer who shot Lady and $1,000 in punitive damages against that officer’s supervisor.

As I’ve mentioned before, Virginia does not allow emotional distress damages for injury or harm to pets in negligence cases. But the word is still out on whether a Virginia plaintiff could recover damages for emotional distress to companion animals injured or killed by willful, intentional or outrageous torts. With the Russell case, Illinois joins the list of states – which include Florida, Idaho, Kentucky and Louisiana – that will allow damages in those situations. With each state that rules in favor of plaintiffs in these cases, Virginia and other states may just be getting that much closer to valuing companion animals beyond their mere “replacement value.”


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Settlement On The Courthouse Steps: Prince George’s County Must Address Humane Treatment of Companion Animals

On July 29, 2008, Berwyn Heights Mayor Cheye Calvo was out walking his two Labradors.  As he approached his porch, he saw a package that had just been delivered to the house.  He reached over, picked it up and took it inside.  Little did he know what was in the package, or what was about to happen next.

Prince George’s County law enforcement knew that the package contained drugs, and suspected the mayor or a family member was involved in drug dealing.  A police SWAT team was not available, so a deputy SWAT team took over.  Some of the deputies thought they had a “no knock” warrant, but the police had actually not requested one.  They stormed the house without announcing themselves, killing both dogs in the process.

Mayor Calvo sued the County, and the parties have reached a settlement on the eve of trial.  The terms of settlement are confidential, but — kudos to the Mayor — the settlement included two provisions.  First, Prince George’s County law enforcement must change how and when they use SWAT teams.  Second, they must focus on more humane treatment of companion animals.

On one hand, I would have loved to have seen this case go to trial, for no other reason than to allow Maryland to weigh in on whether it is time to treat companion animals like more than mere personal property.  But had the Mayor prevailed at trial, he would not have gotten these two very important considerations addressed.  I will be anxiously awaiting how Prince George’s County addresses companion animals in the wake of this law suit and settlement, and whether the changes they make can be applied to the many, many other cases of law enforcement shootings of companion animals.

We may get another shot at changing Maryland law.  I’ll be keeping my eye on what happens with the Jenkins lawsuit filed in Frederick County, Maryland.


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Who Is Responsible For A Boarded Animal’s Vet Care And Bills?

A new boarding client comes to you with her sweet, new Labradoodle named Snickers.*  The client is going on vacation for a week, and she asks you to board Snickers for her.  Little did you know that Snickers has severe separation anxiety.  On the first night he’s at your boarding facility, he throws himself against his kennel door to the point that he’s injured and bleeding. 

First question:  Are you responsible for getting Snickers to the vet?  Answer:  Yes!

Section 3.2-6518 requires boarding establishments and groomers to provide emergency veterinary treatment for any illness or injury occurring while the animal is in their custody.  Under that section, boarding establishments and groomers have the same responsibility as owners to provide companion animals with adequate care.  Section 3.2-6503 outlines those seven responsibilities:  adequate food and water, shelter, space and exercise, care – and veterinary care.  And Section 3.2-6503 explicitly applies to every pound, shelter, rescue, foster home, dealer, pet shop, exhibitor, kennel, groomer and boarding establishment.

Second question:  Who pays the vet bills?  Answer:  In this case, probably the client. 

Boarders and groomers are responsible for the vet bills if an animal sustains injury at the boarder’s or groomer’s facility, or while in the custody of a boarder or groomer, and the injury resulted from the boarder or groomer’s failure – whether accidental or intentional – to provide adequate care or if the injury resulted from the boarder or groomer’s actions.  Otherwise, the owner picks up the costs, including when the injuries result from the animal’s self-mutilation. 

Likely, Snickers’ injuries would be considered self-mutilation, with the client picking up the tab for Snickers’ vet bills.  However, if the client warned the staff about Snickers’ condition, and the staff ignored the warning, or failed to check on Snickers for a considerable amount of time, the boarding establishment just might be on the hook for the bills.

In case you’re wondering, Section 3.2-6500 defines both “boarding establishment” and “groomer.”  A “boarding establishment” is “a place or establishment other than a pound or animal shelter where companion animals not owned by the proprietor are sheltered, fed, and watered in exchange for a fee.”  This definition is arguably broad enough to cover not only kennels, but also doggie daycares and boarding and training facilities.  A “groomer” is “any person who, for a fee, cleans, trims, brushes, makes neat, manicures, or treats for external parasites any animal”  – also a pretty broad definition.

If you board or groom animals, establish an intake procedure that requires the potential client and companion animal to come in person before you agree to board or groom the animal.  Use written forms asking potential clients whether their animals suffer from health issues, separation anxiety, dog-dog aggression, dog-people aggression, and other behavior problems.  And before you finish drafting those forms, make sure you check the next post.  You may not realize it, but Virginia requires boarding establishments to give very specific written warnings to their boarding clients about veterinary costs.

These responsibilities are nothing to take lightly.  If an owner fails to give a companion animal adequate care, the owner is subject to a Class 4 Misdemeanor, punishable by up to a $250 (for a first offense).  But if a boarding establishment or groomer violates Section 3.2-6518, they subject themselves to seizure of the animals and a Class 1 Misdemeanor, which carries up to twelve months in jail and/or a $2500 fine.

* All characters in this post are purely fictional, and any resemblance to real individuals is purely coincidental.  Nor do I wish to pick on Labradoodles or dogs named Snickers!


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Pushing The Envelope: Acknowledging Animal Law’s Acceptance And Feeling Our Way Around The Legal Status Of Companion Animals

Deputies in Frederick County, Maryland went to the Jenkins residence to serve court papers on Sandra and Roger’s teenage son.   The deputies knocked on the door, and Roger answered.  Roger asked if he could have a moment to put the family dogs away before they came in.  At that moment, the Jenkins’ Labrador retriever, Brandi, noticed the unfamiliar cars in the driveway and began to bark.  In response, one of the deputies shot Brandi in the chest and leg.  Brandi collapsed, bleeding, in the snow.

Fortunately, Brandi survived.  But the Jenkins family says that Brandi is permanently disabled from the shooting.  They have filed a law suit against the Frederick County Sheriff’s Office for reckless endangerment and infliction of emotional distress.  The Sheriff’s Office has denied liability, claiming the shooting was justified.

I am glad to see that animal law – and specifically companion animal law – is gaining acceptance.  In fact, the Jenkins family’s tragedy spawned articles coast to coast – from the Baltimore Sun to the Los Angeles Times.  But the downside is that the awareness stems in large part from law enforcement shootings of beloved family dogs.  This is hardly a new phenomenon, unfortunately, and it’s something I have already blogged about in Dogs And Guns Don’t Mix.

Hopefully, the positive side to all of this will be further development of the legal status of companion animals.  Maryland may just be the state that will push these boundaries.  Brandi’s case is not the only one pending in the Maryland courts right now.  Another law suit is pending in Prince George’s County, Maryland.  That case involves the shooting and killing of Berwyn Heights Mayor Cheye Calvo’s two Labrador retrievers  after the officers suspected the mayor’s wife was involved in drug trafficking.  And in a recent Maryland custody case, a Calvert County Circuit Court judge set up joint custody of the family dog, declining to treat the dog like mere property.  You can read more on this in Pets, Property And Price, Part 1:  Is Fido A Pampered Pooch Or Mere Personal Property?

As the law currently stands in Virginia, a plaintiff like Jenkins or Calvo cannot recover damages for emotional distress if officers were negligent.  But the Virginia Supreme Court has specifically left the door open for intentional torts – and perhaps gross and wanton recklessness.  To read more about the status of Virginia law and damages, take a look at Pets, Personal Property And Price, Part 3:  What Damages Can Fido Sue For?  If you would like to track the Jenkins and Calvo case, you can do so at the Maryland Judiciary Case Search site.