Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals


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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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Virginia Legislative Round Up for 2012 Session

It’s that time of year again! Several bills have already made it on this year’s slate, and a couple more may be added before the session is over. This year’s legislative session looks very promising for companion animals – with one glaring exception.

HB 95 (Bear Hound Training): We start with the one glaring exception. As things stand, hunters can train dogs to hunt bear from a half hour before sunrise until four and a half hours after sunset. This bill would allow this training to occur at night. Last year, the House passed this bill, but the Senate stopped the bill in its tracks.

HB 158 (Devocalization of Companion Animals): This bill makes devocalization a Class One Misdemeanor (punishable by up to 12 months in jail and a fine) unless the operation is necessary to relieve illness, disease, injury or pain. This is another carry over from last year, when this bill ended up getting stuck in the House Committee for Courts of Justice.

HB 363 (Companion Animals in Protective Orders): Once again, this bill ties into a bill from 2011. Last year’s bill would have granted courts explicit authority to include companion animals in domestic violence protective orders. It was resolved by adding language prohibiting acts of abuse or offenses that result in injury to person or “property.” Needless to say, confusion has arisen with this language, and this bill attempts to clarify that a protective order petitioner can be awarded control, custody and care of a companion animal.

For an overview of last year’s legislative session, take a look at this post.  And on to new topics for this year’s session:

HB 537/SB 305 (Dangerous Dog Registry): This bill proposes to place primary responsibility for registering dangerous dogs with animal control officers instead of the State Veterinarian’s office. It would also lengthen the amount of time to obtain the certificate of registration from ten days to 45 days. The certification fee would increase from $50 to $150, but the registration fee that went to the State Vet would be eliminated.

HB 650 (Notice of Euthanasia for Companion Animals): This bill requires city and county pounds to maintain a registry of organizations willing to accept healthy and non-vicious companion animals scheduled to be euthanized, and requires the pounds to give 24 hours’ notice to the organizations prior to euthanizing. This bill also requires pounds to make available annual statistics of impounded animals.

HB 695 (Prohibiting Fox and Coyote Penning): The Humane Society of the United States (HSUS) has taken this crucial issue head on this year. This bill would make fox and coyote penning a Class One Misdemeanor. If you don’t know about this cruel “sport,” think dog fighting, but using foxes and coyote as bait animals. Read more about it on HSUS’s website.  And, Virginians, you can send a message directly to your legislators on this HSUS site.

HB 888 (Anti-Tethering Ordinances): Virginia is a strong proponent of “Dillon’s Rule,” which dictates that counties, cities and other localities have only those powers that the state has explicitly granted them. This is reflected in Virginia Code Section 3.2-6543, which lays out for localities the types of ordinances they may enact that impact companion animals. Leash laws are explicitly included, but that section does not directly address tethering. Some Virginia localities, such as Alexandria, haven’t let that stop them. But this bill would wisely make it clear that localities can regulate tethering.

Watch for three more bills that are in the works for this year’s legislative session: (1) establishing February 28 as Spay Day; (2) addressing TNR (trap, neuter and return of feral cats); and (3) prohibiting ownership of exotic animals. I’ll post more information on these as they become available.

If you live in Virginia, please reach out to your local legislators on these bills.  And consider joining HSUS and the Virginia Federation of Humane Societies for Humane Lobby Day in Richmond on January 26, 2012!


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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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Victory! California Supreme Court Dismisses Review in Chung

The California Supreme Court has just decided to “let sleeping dogs lie” and decline further review of a California Court of Appeals decision in People v. Chung, which extended the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement to animals in distress.  This is a major victory for combatting animal abuse and neglect!  This move came in light of the Court’s recent decision in People v. Troyer, concluding that the police could invoke exigent circumstances to search a bedroom while looking for potential victims and suspects in a shooting incident.

The Court put the Chung case on hold pending Troyer.  Now that Troyer has been resolved and upheld the police officers’ actions under seemingly fuzzier facts, the Supreme Court of California was free to decide that no further appellate review was necessary in Chung.  This decision keeps in place the Court of Appeals’ ruling upholding the police officers’ actions in Chung to investigate a call of a dog in severe distress and enter Chung’s residence, despite not having a warrant.

Although I would have liked to have seen how the California Supreme Court would have handled the legal status of companion animals, the Court of Appeals decision had decent analysis on this point.  For instance, Chung argued that exigent circumstances should be limited to protecting human life and should not extend to protection of an animal.  The Court of Appeals could have rested its decision on the fact that dogs are property and that California law allows for exigent circumstances to prevent damage to property.  Instead, the court noted that that animal protection has long been a proper government concern, pointing to the fact that California’s animal cruelty statute dated back to 1872.  The Court of Appeals also discussed (albeit in a footnote) that doges have long held a special place in our lives, serving as our companions, aiding the disabled, and functioning as police, military, search and rescue and therapy dogs.

I will keep watching to see if this case is appealed to the United States Supreme Court, and will keep you posted!


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Major Steps Forward: Maryland Passes Several Animal Rights Bills

The Maryland General Assembly just finished its session this week, taking major steps forward with several animal rights bills.

  • HB 227/SB 115 authorizes a court to prohibit a defendant from owning, possessing or residing with an animal as a condition of probation for specific violations concerning animal abuse, neglect or cruelty.  [By comparison, Virginia Code Section 3.2-6570 allows a court to prohibit a person convicted of animal cruelty from owning or possessing a companion animal.  Virginia Code Section 3.2-6571 requires a court to prohibit a person convicted of dog or cock fighting from owning or possessing companion animals or cocks.  Unfortunately, Virginia’s version of neglect (lack of adequate care, found in Virginia Code Section 3.2-6503) does not authorize a court to prohibit possession of companion animals.]
  • SB 639/HB 339 establishes a task force for a statewide spay/neuter fund.  The bill specifies the task force’s membership, chair and staff; requires the task force to review spay/neuter programs, collect and review data, and make recommendations for a spay/neuter fund; and requires the task force to report its findings and recommendations to the Governor and specified committees in the General Assembly on or before January 1, 2012.
  • SB 839/HB 940 requires a kennel license for persons who own or have custody of fifteen or more female dogs kept for the purpose of breeding and who sell dogs from six or more litters a year; requires each county to collect and maintain specified information related to each kennel license; and requires each county to report specified information to the Department of Labor, Licensing and Regulation on or before January 15 of each year.  [Virginia already has a similar statute for breeders found in Virginia Code Sections 3.2-6507.1 through 3.2-6507.6, but it only applies to breeders with thirty or more adult female dogs.]
  • HB 407/SB 747 authorizes District Court Commissioners in interim protective orders, and judges in temporary and final protective orders, to award temporary possession of any companion animal of a petitioner or respondent in a protective order proceeding.  [A similar bill failed in Virginia’s General Assembly this year.]
  • HB 897 will require antifreeze to contain a bittering agent (denatonium benzoate), effective January 1, 2012.  [The American Veterinarian Medical Association has more information about which states already require a bittering agent in antifreeze.  Fortunately, Virginia is among those states, with Code Section 59.1-155.1 requiring the bittering agent in antifreeze and engine coolants as of January 1, 2011.]
  • HB 941 authorizes restaurants with outdoor dining areas to allow dogs in the outdoor dining area during specified hours.  This bill will allow restaurant owners to limit the size and type of dogs allowed, and will require the owners to post notices.  [For a comparison of how Virginia handles outdoor doggie dining, take a look at this post from the Northern Virginia Dog Blog.]

A couple of other bills were not so lucky.

  • SB 814/HB 770 would have allowed courts to grant decrees in divorce proceedings regarding ownership of a companion animal, and would have prohibited courts from ordering either party to order payment to maintain the companion animal under certain circumstances.  [Virginia’s General Assembly has stayed out of this area so far, leaving the Virginia courts to continue to consider and “dispose of” companion animals as property in divorce proceedings.]
  • HB 912 would have required retail pet stores to post specific information about each dog on each dog’s cage, maintain written records about each dog for one year after the date of sale of the dog.  [Virginia has similar “pet shop” laws, including specific Consumer Protection Act violations, found in Virginia Code Sections 3.2-6512 to 3.2-6516.]
  • HB 294 would have prohibited infliction of unnecessary suffering or pain on an animal through the use of a rifle, a handgun, or a specified weapon.  [To the contrary, the Virginia General Assembly focused much of its energy on pro-hunting legislation this session.]
  • HB 301 would have authorized the Department of Natural Resources to suspend hunting licenses or privileges of persons convicted of state or federal hunting violations, and would have required a minimum one-year suspension of hunting licenses or privileges for subsequent hunting violation convictions.

Kudos to Maryland for accomplishing so much for animals this session!  This was a much more productive session for animal rights than in Virginia.  If you’d like to know more about how Virginia fared this session (I’ll warn you that it’s pretty dismal), take a look at my post from earlier this year.


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Who Gets The Dog? Whitmore v. Whitmore

Scott and Barbara Whitmore got married in 2002.  They had no children, but they did adopt a Welsh Corgi puppy from a local pet store in 2006.  They paid $750 for the Corgi, Noel, and registered her with the American Kennel Club under both of their names.  Scott and Barbara both worked, and both contributed to Noel’s care, training and maintenance. 

In 2009, the Whitmores separated.  The house they had lived in was Barbara’s property prior to the marriage.  Barbara stayed in the house, and Scott moved out.  Noel stayed with Barbara for the most part, with Scott taking her on and off during the first year of separation.  Barbara believed the dog would stay with her ultimately, but Scott thought Noel would stay with Barbara during the separation, and that they would share Noel afterwards.

Barbara worked from home, but traveled for work four to six days a month.  When she was out of town, she employed a pet care service for $350 or so a month to take care of Noel.  Barbara no longer wanted to share Noel with Scott, claiming he destroyed the marriage by having an affair, and that she no longer wanted Scott in her life.

During the divorce proceedings in Loudoun County Circuit Court, Barbara argued that Scott gave her Noel as a gift.  Scott testified that he saw Noel at the pet store, and they went together to buy the dog, making the transaction a “joint purchase.”  Both Scott and Barbara testified that they loved Noel, considered her to be a family member, and shared a strong bond with her.

Barbara claimed she usually took Noel to the veterinarian, and that she visited Noel several times a day when Noel was hospitalized for five days.  Scott said he did not visit Noel when she was hospitalized, for fear of getting Noel excited while she was ill.  Barbara claimed that she paid Noel’s that $4,000 vet bill, and most of Noel’s other vet bills, except when Scott took her to the vet once or twice.  Scott testified that he paid the $4,000 bill.

Barbara argued she should be able to keep Noel.  Scott argued that he should have Noel, or that the court should award shared possession and establish a visitation schedule.  Judge Horne ruled that Virginia Code Section 20-107.3, which deals with equitable distribution of property, governed the case.  Judge Horne found that both Scott and Barbara contributed to Noel’s purchase and maintenance, and both played a significant role in Noel’s life.  But Noel stayed with Barbara, and Judge Horne felt it was “ill-advised” to set up visitation or shared custody of a “marital asset.”  Judge Horne awarded Noel to Barbara, and awarded $750 to Scott so that he could get a dog “of like kind.”

Scott appealed to the Court of Appeals, arguing that Judge Horne failed to consider and weigh all of the necessary factors – such his monetary and nonmonetary contributions in getting and maintaining Noel, and that Noel is a living , sentient being rather than an inanimate possession.

The Court of Appeals summarily affirmed the trial court in a recent unpublished opinion, agreeing that Section 20-107.3 governed.  Under that section, the court has to first determine property is marital, separate, or a hybrid.  Next, the court has to value the property.  Last, the court has to distribute the property equitably. 

The Court of Appeals had no problems with Judge Horn’s application of Section 20-107.3.  Regarding the inquiry of whether Noel should be considered marital or separate property, or a hybrid, the judges agreed with Judge Horne’s conclusion that Noel was “marital property,” based on the facts that Noel was a gift “between the parties,” was registered with the AKC in both of their names, and that both Scott and Barbara played significant roles in Noel’s life. 

Regarding valuation, the judges concluded that Judge Horne considered the necessary factors and the unique circumstances of this case.  On the record, Judge Horne struggled with placing a value on Noel, finding that Noel had a unique “intrinsic value,” and did not “in any way want to minimize the significance of a pet in a person’s life.” 

Regarding distribution, the judges found no abuse of discretion in awarding Noel to Barbara and $750 to Scott.  The Court of Appeals found no error in refusing to set up joint custody or a visitation schedule for a pet.  In fact, the judges went out of their way to cite Virginia Code Section 3.2-6585 in a footnote, to support their position that does are “personal property” under Virginia law.

Linguistically and legally, the Court of Appeals’ decision is an interesting read.  The judges go to great lengths in their delivery and vocabulary to make it clear that Noel is nothing more than property.  They refer to Noel as “the dog” throughout the entire opinion, never even using her name or even her gender.  Instead of saying the Whitmores adopted Noel, they use the word “acquired.”  Instead of saying Scott had custody of her during the separation, they say he had “possession” of her.

This isn’t the first time the Court of Appeals of Virginia was faced with a fight over who gets the dog in a divorce.  In the 2004 unpublished opinion of Conahan-Baltzelle v. Baltzelle, the Court of Appeals upheld a trial court’s application of Section 20-107.3 and decision to award the husband possession of the couple’s German Shepherd.

Obviously, Virginia is nowhere near other states like Maryland in its readiness to give companion animals a better legal position than mere property.  At least one Maryland trial court has granted shared custody of the family dog, treating the dog more like a child by weighing the best interests of the dog.  A civil case pending in Frederick County Circuit Court involving deputies shooting a family dog may give us further guidance on the legal status of companion animals in Maryland.