Fall 2004 Edition

Vol.9 – No.2

Special Animal Law Issue

Animal law permeates many areas of the law and many people’s lives including Landlord/Tenant (Leases), Estate Planning (Pet Trusts), Personal Injury (Dog Bites), Matrimonial (Pet Custody), Criminal (Cruelty and Drug Dogs), Municipal Ordinances (Breed-Specific Bans), Environmental Conservation Law (Hunting and Wildlife Conservation), and Disability (Service Animals). As more and more people value their pets, they are demanding more laws to protect them. Animal law has taken on greater significance with many state bar associations and law schools. More than thirty (30) law schools, including Duke, Georgetown, UCLA, Yale and Harvard, now offer at least some animal law courses, including “Pet Custody”. Another reason for animal law having more significance, is the growing awareness that animals have emotions and need protection from abuse and exploitation. Although many people consider pets as family members, there is very little in the law that reflects the role of a pet in the family. In a St. Louis divorce action, the judge ordered that the couple would each have custody of one dog and visitation rights to see the other dog. He also ordered that the dogs would undergo a veterinary evaluation to determine whether they suffered from separation anxiety. A Colorado Springs judge ordered a husband to pay $140 per month in pet support for the family dog. The children were so distraught over the divorce that they needed the pet’s companionship. The California Court of Appeal, 3rd District ruled that a condominium association that banned dogs discriminated against a severely depressed couple by refusing to allow them to have a companion dog as a reasonable accommodation.

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Barking Service Dog Can’t be Excluded from Concert Hall

A quadriplegic woman had a small Shih Tzu/Poodle mix named “Jazz” as a service dog. She frequently attended concerts at the concert hall with the dog and repeatedly explained to employees that he was a service dog. However, after the dog “yipped” at two concerts, hall employees refused to admit him and called the police to have him removed. The woman sued, arguing that the hall violated state and federal disability laws by excluding her service dog. A California District Court judge found for the woman, awarded damages and entered an order requiring the hall to modify its policies regarding persons with disabilities. The hall appealed, arguing that the order was unreasonable and would fundamentally alter its services and facilities. The U.S. Court of Appeals, 9th Circuit ruled that the modification order was necessary because otherwise the plaintiff would be effectively excluded from future performances. Further, it rejected the hall’s argument that modifying its policies would fundamentally alter its services. The court noted that Jazz made noises at two performances but no complaints were made about his behavior as a result of either incident. Because the incidents involving Jazz apparently did not cause any significant disturbance, they could not be used as a premise for the hall’s argument that the ordered policy modification would fundamentally alter its services.

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Service Animals

Under the Americans with Disabilities Act (ADA), businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally permitted to go. The Act applies to all businesses open to the public, including restaurants, hotels, taxis and shuttles, grocery and department stores, hospitals and medical offices, theaters, health clubs, parks, and zoos.

• Businesses may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person’s disability.
• People with disabilities who use service animals cannot be charged extra fees, isolated from other patrons, or treated less favorably than other patrons. However, if a business such as a hotel normally charges guests for damage that they cause, a customer with a disability may be charged for damage caused by the service animal.
• A person with a disability cannot be asked to remove the service animal from the premises unless: (1) the animal is out-of-control and the animal’s owner does not take effective action to control it, or (2) the animal poses a direct threat to the health or safety of others. In these cases, the business should give the person with the disability the option to obtain goods and services without having the animal on the premises.
• Businesses that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.
• A business is not required to provide care or food for a service animal or provide a special location for it to relieve itself.
• Allergies and fear of animals are generally not valid reasons for denying access or refusing service to people with service animals.
• Violators of the ADA can be required to pay money damages and penalties.

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Dog Bite Prevention

800,000 Americans seek medical attention for dog bites each year; half of which are children. Of those injured, 386,000 require treatment in an emergency department and approximately one dozen die. The rate of dog bite related injuries is highest for children ages 5 to 9 years. The rate decreases as children age. Almost two thirds of injuries among children ages four years or younger are to the head or neck region. Injury rates in children are significantly higher for boys than for girls. To prevent dog bites, teach children basic safety around dogs including the following:

• Do not approach an unfamiliar dog.
• Do not run from a dog and scream.
• Remain motionless when approached by an unfamiliar dog.
• If knocked over by a dog, roll into a ball and lie still.
• Do not play with a dog unless supervised by an adult.
• Immediately report stray dogs or dogs displaying unusual behavior to an adult.
• Avoid direct eye contact with a dog.
• Do not disturb a dog who is sleeping, eating, or caring for puppies.
• Do not pet a dog without allowing it to see and sniff you first.
• If bitten, immediately report the bite to an adult.

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Personal Injury Verdicts and Settlements

$488,000 Won for Clarence Deliveryman. As reported in the Spring 2003 issue of the LegalSurvival.com newsletter, Michael Ranzenhofer won a $88,000 settlement from National Grange Mutual Insurance Company for a 46-year-old Clarence deliveryman, who was injured in a four car chain reaction motor vehicle accident on Route 5 in the Town of Clarence. In July of this year, Mr. Ranzenhofer won an additional $400,000 from Zurich American Insurance Company utilizing the Supplemental Underinsurance Motorist (SUM) provisions of the insurance policy providing coverage for the delivery truck. Prior to the initiation of a lawsuit, Zurich had taken the position that the Clarence deliveryman was not entitled to any additional compensation and that he had already received adequate compensation under the original settlement. Through aggressive prosecution of the claim against Zurich, Mr. Ranzenhofer was able to win an additional $400,000 for a total recovery of just under $500,000. If you have any questions about injuries you or your family have sustained as a result of someone else’s carelessness, please call Mr. Ranzenhofer at (716) 333-5144. Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, New York Trial Lawyers Association, New York State Trial Lawyers Association and Erie County Bar Association Negligence Committee.

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Breed-Specific Bans

What if you were told that you have ten (10) days to get rid of your dog? That’s what pet owners in over 200 cities and towns throughout the United States and Canada are facing that restrict the ownership of certain breeds of dogs. Large, powerful dogs are frequently targeted, including Akitas, Chow Chows, Dalmations, Dobermans, German Shepherds, Great Danes, Pit Bulls, Rottweilers as well as mixed breeds. Cities such as Miami (Florida), Pawtucket (Rhode Island), and Cincinnati (Ohio), ban dogs deemed dangerous or vicious. Other communities place restrictions on owners, such as that they carry liability insurance or muzzle their pets in public. But animal organizations say breed bans don’t keep residents safe because they fail to address the real problem: which is irresponsible pet owners. Currently fourteen (14) states prohibit breed-specific legislation while several cities including Pontiac (Michigan), and Algona (Washington), have recently repelled their bans. Ontario’s Municipal Act gives municipalities the right to ban dog breeds, but only two, Kitchener and Waterloo, have done so.

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Trusts for Pets

The traditional view in the United States has disallowed animals to be the lawful subject of a provision in a will or trust. The Uniform Probate Code, which authorizes a trust for care of a pet and it’s offspring, has been adopted in Alaska, Arizona, California, Colorado, Michigan, Montana, Missouri, New Mexico, New York, North Carolina, Tennessee, Utah, Florida, Iowa, Nevada, New Jersey, Oregon and Wisconsin. Under the Code a trust for the care of an animal is specifically allowed along with the authorization for the courts to appoint someone to enforce the trust. Thus a pet becomes a legally relevant being, one who has income and assets which must be protected within the legal system. The best way to provide for a pet is to create a living or testamentary trust which requires the trustee to make distributions to a human beneficiary to cover the pets expenses, provided that the beneficiary is taking proper care of the pet. The trust provisions should specify the caretaker, trustee, property in the trust, standard of living, distribution of money, remaindermen, identity of the pet, inspection of the pet and funeral arrangements.

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Pets on the Web

• American Kennel Club’s Canine Legislation Department
• Animal Law
• Animal League Defense Fund
• Assistance Dog Laws and Legal Resources
• Digital Dog – provides information regarding dogs, from their care and training, to the variations between purebreeds and mixes from shelters, rescues or breeders.
• Dog Friendly – provides city guides and travel guides for dog owners.
• Dog Watch – has resources to help groups oppose breed-specific legislation.
• National Center for Injury Prevention and Control
• Voices for Pets – tracks animal abuse cases through the court system, advocating for pets and animals who have been victimized.
• National Center for Injury Prevention and Control

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Verdicts for Injuries Caused by Animals

• $906,000 for a stray cat adopted by veterinary office which attacked a customer, lacerating her cornea. (Suffolk County, New York, Supreme Court)
• $300,000 for the widow of man killed by a kick to the head delivered by their son’s horse. She claimed that the son had knowledge of the animal’s dangerous propensities. (San Bernardino County, California, Supreme Court)
• $300,000 for a plaintiff attacked by a Pit Bull with a violent history during an argument with the dog’s owner. (Kings County, New York, Supreme Court)
• $173,789 for unleashed Rottweilers who attacked and dragged a champion runner for half a block before being rescued by a passerby with a shovel. (Scott County, Iowa, District Court)
• $163,000 for a guest who was crawling into the bedroom of a host, who was sleeping, to get luggage when a Saint Bernard bit off and swallowed part of his ear. (Palm Beach County, Florida, Cir. Court)
• $145,000 for a rider impaled by a saddle horn when a borrowed horse reared, lost its balance and fell, landing on her. (Harris County, Texas, District Court)
• $90,000 for a Pit Bull that ran onto a neighbor’s porch and snatched a Yorkshire Terrier from the owner’s arms and killed it. (Jefferson County, Alabama, Cir. Court)
• $46,500 for a totaled pickup truck and injuries after a collision with a cow which escaped from a fenced, but unlocked pasture. (Walker County, Texas, Cir. Court)
• $20,000 for a motorist that was killed after hitting a 1,500-lb. bull in an intersection. The estate claimed it was allowed to roam free. (Nueces County, Texas, District Court)