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Archive for the ‘Civil Cases’ Category

Dangerous Dogs Winning the Battle For the Streets of Pennsylvania

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Kenneth Phillips, "Zero Tolerance," MS-NBCThe victim isn’t the only one who survives a dog attack: so does the vicious dog, in most cases. Animal control departments too often lack the resources, the legal authority, and/or the willpower to rid our communities of killer dogs.

For example, the Knox County, Tennessee animal control department failed to take away a gang of pit bulls that the department had declared to be vicious after the dogs attacked a police car, threatened an animal control officer, and routinely were allowed to run free. As a result of the department’s inaction (as well as the dog owner’s refusal to comply with the department’s order), 21-year-old Jennifer Lowe was savagely mauled to death. Her community members suffered from the department’s negligence, not only because they had to endure the dogs as well as the memories of her horrific killing, but because Knox County had to pay wrongful death compensation to her family, after Attorney Wayne Ritchie Jr. and I filed a wrongful death case on their behalf.

That’s only one example. WPXI (Target 11) Investigator Rick Earle now has released data showing that:

  • Of the 165 dogs declared dangerous in Pennsylvania in 2008, 70 were euthanized.
  • But in 2009, only 50 of the 163 dangerous dogs were put down.

In other words, dangerous dogs and their dangerous owners are winning the battle for the streets in that state. The WPXI article quotes a Pennsylvania dog owner saying, “I have a Chow/Ridgeback mix I brought back from New Orleans who mauled 5 to 6 people. Most would euthanize a dog like that, but I’m not your average pet owner.”

As these dogs mate and proliferate, those of us who are “average” pet owners will see greater risk to our children, greater prejudice against our “average pet,” and rising insurance costs. All to protect dogs that bite, that maul “5 to 6 people.” One must wonder why the rest of us must continue to endure dangerous dogs in our communities.

How long — how many lives like Jennifer’s — how many court cases and news reports will it take before citizens demand stricter laws and zero-tolerance enforcement?

Written by Kenneth Phillips

February 26, 2010 at 5:46 pm

Tell Nebraska Lawmakers To Adopt the Model Dog Bite Statute

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A recent decision of the Nebraska Supreme Court created a loophole in the state’s dog bite statute, giving reason for the legislature to adopt the Model Dog Bite Statute.

A prior decision of the Nebraska Supreme Court construed a previous version of the Nebraska dog bite statute. That Court decision, based on the prior statute, said that the statute did not apply to injuries that resulted from a dog’s playful or mischievous actions.

Now, that is a strange interpretation of any dog bite statute. Laws about animals have to be very clear. Either a dog is on a leash, or it isn’t. Whether the dog intended to act playfully or like one of the neighborhood gangsters is never an element of such a law. A dog’s intent is impossible to prove. You can’t cross-examine a dog, and when a dog does something unusual like attack a person, it often happens because of a combination of risk factors (see Dog Attack Danger Scale and Why Dogs Bite People).

The Nebraska State Legislature amended the dog bite statute sometime after that court decision was rendered. The Legislature inserted the word “injury” into the dog bite statute. An “injury” is not an intentional injury, a vicious injury, an accidental injury — it is simply something that produces suffering. The Legislature made this amendment because the lawmakers obviously did not agree with the Court’s prior decision, which limited the statute to vicious actions by a dog.

Despite the clear meaning of the word “injury,” however, this Supreme Court pretended that it was so ambiguous that it required clarification through the legislative materials created at the time that the law was being considered. These materials are referred to as expressing “legislative intent.”A court looks at legislative intent when the legislature’s statute could mean one thing or another thing. It is a legal rule, however, that the court will never consider the legislature’s intent if a statute is clear. That would be unfair to the public, which has access to the statutes, not the lawmakers and their materials.

When the dog bite statute was amended, the Nebraska State Legislature’s written materials did not specifically refer to or repudiate the court’s prior decision. For that reason, in the case of Underhill v. Hobelman the court took the position that the Legislature somehow agreed with the prior decision. Therefore the court said that the prior decision would continue to be the law, despite the amendment which added the word “injury.”

As I indicated above, the prior decision said that the dogbite statute did not apply to actions that were playful and mischievous. Dog bite victims in Nebraska therefore can recover for the first bite only if the insurance defense lawyer cannot show that the actions of the dog were playful or mischievous.

Remember, the Nebraska Supreme Court was interpreting only the dogbite statute of that State. The laws of other states are not affected by this.

If the State of Nebraska enacted the Model Dog Bite Statute, this would not have happened. Therefore I suggest that the people of the state contact their lawmakers and tell them that the statute needs to be amended again, using the wording of the Model Dog Bite Statute. I will testify before the Legislature if it will help to get a proper law passed — I have done this before, and it has helped in other states.

Written by Kenneth Phillips

February 1, 2010 at 11:25 pm

Ohio Eases Restrictions On Dog Bite Cases

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The Supreme Court of Ohio has ruled that a dog bite victim may pursue claims under both the state’s dog bite statute (R.C. 955.28) and a hybrid of the scienter and negligence causes of action, which the court calls “common law negligence.” In a case which involved the canine-inflicted scalping of a little girl, the insurance company for the dog owners had convinced the trial judge that the dog bite victim had to choose between these two remedies, which lead to different measures of legally-awardable damages. The court clarified that both legal theories can be pursued in the same court case.

Unfortunately the court failed to take the opportunity to untangle the dog bite law itself. Ohio’s scienter-negligence hybrid conflates (or “tangles”) the requirements of the common law or scienter cause of action with the general negligence cause of action. The hybrid requires proof of the following elements: (1) the defendant owned or harbored the dog, (2) the dog was vicious, (3) the defendant knew of the dog’s viciousness, and (4) the dog was kept in a negligent manner after the keeper knew of its viciousness.

On a positive note, the court ruled that punitive damages may be awarded in the hybrid action. As a result, dog bite victims in Ohio have a greater chance at recovering not only compensatory damages such as medical bills and pain and suffering, but also punitive damages in cases of egregious conduct on the part of the defendant.

Written by Kenneth Phillips

January 7, 2010 at 9:38 pm

Posted in Civil Cases

Beware the Co-Worker’s Dog!

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Your co-worker’s dog (or other animal) can be doubly dangerous because the worker’s compensation laws might prevent you from recovering the full amount of your damages if the animal injures you.

That defense has been raised in the horrific chimp-mauling of Charla Nash, whose hands, nose, lips and eyelids were ripped off by a co-worker’s chimpanzee several months ago. The attorneys for the chimp’s owner, Sandra Herold, have asserted that Nash’s multi-million-dollar claim be governed by the worker’s compensation laws because both Nash and Herold were working with the chimp, which was used to promote their employer’s business.

In almost all cases, the existence of a workers compensation remedy does not hurt an injured employee’s dog bite claim, because the employee is allowed to proceed against both the workers compensation insurance as well as the dog owner’s insurance. When the dog owner is a coworker, however, two problems can arise: first, the right to proceed against a coworker might be eliminated by the workers compensation law, and second the homeowners insurance of the dog owner may exclude coverage for work-related incidents.

Therefore employers who allow workers to bring their dogs to the job site or office are inadvertently increasing not only the risk of harm to their employees, but also the degree of harm. The presence of dogs creates the opportunity for dog bites and therefore raises the risk of harm. Additionally, the fact that the injury might be considered work related means that the injured employee could be prevented from collecting all that the law provides otherwise, which thereby increases the degree of the harm.

Written by Kenneth Phillips

December 3, 2009 at 8:22 pm

Mass. Courts Increasing Civil and Criminal Liabilities of Pit Bull Owners

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Two court decisions in the State of Massachusetts this year have significantly raised the stakes for pit bull owners and those who allow pit bulls to reside upon their premises. These cases will influence other courts throughout the USA.

In one decision, the state supreme court ruled that if a pit bull is on the premises, officers executing a search warrant do not have to observe the “knock and announce rule.” In Commonwealth v. Santiago (2009) 452 Mass. 573, the Massachusetts Supreme Court justified an exception to the “knock and announce” rule for the execution of a search warrant where, among other factors, on the premises to be searched was a pit bull–an animal the court stated was “known to be dangerous and aggressive”–that could be used to confront the officers. Id. at 578.

This week, the mid-level appellate court rendered a decision that has broad implications in the civil law pertaining to pit bulls. The court held that a dog that mounts a person can be considered dangerous, and the fact that a landlord knows that a pit bull is on his or her premises can support a finding that the landlord had scienter.

In Nutt v. Florio (2009) ___ , No. 08-P-81, October 19, 2009, the Massachusetts Appeals Court overturned a summary judgment in favor of the defendant landlord, against a plaintiff child who was a residential tenant at the landlord’s premises, and who was bitten by a pit bull owned by another tenant. The landlord had prior knowledge that the pit bull ran loose on the premises, behaved aggressively, and had mounted the child and his mother several times.

The Appeals Court held that the landlord’s knowledge of these facts — including that the dog was a pit bull — was sufficient to raise an issue to be decided by a jury. Regarding the dog (named “Tiny”) being a pit bull, the court said:

While the defendants may not be held strictly liable by virtue of Tiny’s breed, knowledge of that breed and its propensities may properly be a factor to be considered in determining whether the defendants were negligent under common-law principles.

Written by Kenneth Phillips

October 21, 2009 at 6:20 am

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