Articles Posted in Animal Law

Yet another incident in the cabin of an aircraft has resulted in severe injuries and potentially permanent disfigurement to an unsuspecting passenger. But, unlike another highly publicized incident where a man was injured while being forcibly removed, Mr. Marlin Jackson suffered punctures to the lip and gum, and was missing large chunks of flesh from his face following a brutal attack by an emotional support dog accompanying a Marine veteran. The dog, a 4-year old, 50-pound Labrador retriever/pointer mix was permitted by Delta to sit on the Marine’s lap in the middle seat, next to Mr. Jackson, who was seated next to the window. The dog allegedly began growling as soon as Mr. Jackson took his seat, and before the plane could take off, the dog lunged at Mr. Jackson, pinning him against the window. According to reports, the dog was temporarily restrained but wrestled free from its owners control again, initiating a second wave of attack. The owner and the animal were then moved to another flight, where the animal was secured in a crate.

This incident raises questions about several sensitive issues. Following the extreme public backlash at United following the forced removal of a passenger, the major airlines are certainly going to be hesitant to take action that could result in similar backlash, and separating a Marine veteran from his service dog could certainly yield such a result. However, airlines have a duty to balance an over-abundance of caution with regard to public appearance with reasonable efforts to ensure passenger safety. Mr. Jackson, as an invitee (one who enters for a purpose relating to the owner’s interests or activities) was owed a duty by Delta to exercise reasonable care to prevent injuries caused by activities conducted on its property. In determining the reasonableness of the actions, courts will measure the actions against the “reasonably prudent person” under the same or similar circumstances. In this case, the “reasonably prudent person” will be other airlines, and applicable policies or procedures in the airline industry. Delta’s own policy on service animals states, “with larger service animals . . . we may need to re-accommodate you if the animal encroaches on other passengers or extends into aisles . . .” What constitutes a larger service animal remains unclear, but it is hard to imagine what animals wouldn’t constitute a large service animal if a 50-pound Labrador mix does not. Moreover, most airline cabins are hardly spacious enough to fit a small carry-on item under the seat, much less a 50-pound animal in someone’s lap. Thus, it is likely that the presence of the animal alone was sufficient to constitute an encroachment on the passengers on either side of the Marine veteran.

This incident begs the question of if the discretion granted to the airline crew is too broad, and if the crew has received proper training for making such determinations. The Delta policies are ambiguous as to what constitutes an encroachment or whether a passenger must complain about an encroachment before the animal is removed, leaving the airline crew with the discretion to make the determinations for each case individually. The theories of Delta’s liability for Mr. Jackson’s injuries are numerous, ranging from premises liability to negligence.

In response to several highly-publicized dog attacks this year, including one that killed a 6-year old kindergartener as he walked to the bus stop, the Atlanta City Council voted to unanimously amend the city’s animal control measures related to dangerous or vicious dogs within the city. The amendment establishes the public safety and administrative procedures for the identification of dangerous and vicious dogs, the policy for subsequently registering dogs that are reported and determined to be dangerous or vicious, and imposes several statutory duties on the owners of such dogs.  The Code of Ordinances for Atlanta can be found here.

The first major change relates to the definition of a “dangerous dog.” §18-115 previously defined a “dangerous dog” as “any dog that according to the records of any appropriate authority: (1) inflicts a severe injury on a human without provocation on public or private property; or (2) aggressively bites, attacks, or endangers the safety of humans without provocation after the dog has been classified as a potentially dangerous dog and after the owner has been notified of such classification.” Under the old ordinance, a dog was only defined as dangerous under the statute if the “appropriate authority” had record of the dog causing severe injury to a human or the dog had been previously designated as potentially dangerous, and the owner was aware of the designation. But, under the amended ordinance a dog is a “dangerous dog” if (1) its teeth cause a “substantial puncture” of a person’s skin without serious injury, (2) it aggressively attacks in a manner that causes a person to reasonably believe the dog posed an imminent threat of serious injury, even where no such injury occurs, or (3) while off the owner’s property, kills or seriously injures a pet animal.

By broadening the definition of a “dangerous” or “vicious” dog, the amendment reduces the burden on victims of dog attacks to establish the owner’s duty to the victim. In a negligence claim, the victim (plaintiff) must prove that the owner (defendant) owed a duty to the plaintiff, breached the duty owed, and the breach caused the plaintiff’s injuries. Under the negligence per se legal doctrine, a statute can establish a standard of conduct for breach of a duty where the victim is a member of the class the ordinance is designed to protect, and the injury caused by the owner’s conduct is the type of act the ordinance was meant to protect. Importantly, this doctrine creates a presumption that the owner owed a duty to the victim and breached that duty, which drastically increases a victim’s chances of recovering for her injuries. Moreover, because the amended ordinance designates a dog as dangerous if a person “reasonably believes” the dog poses an imminent threat of serious injury, a victim could establish a per se duty and breach of duty without the occurrence of any previous attack.

In Georgia, dog bite law used to require that the victim prove the following: (1) that the animal was dangerous or vicious; (2) that the owner knew that the animal was dangerous or vicious; and (3) that the owner carelessly managed the animal or let it run free. This established law became known as the first bite rule which meant that every dog was entitled to one free bite before being labeled as a dangerous or vicious dog under Georgia law so as to establish liability and fault against the owner. Technically, a victim had to prove a prior bite by the dog to show the jury that the dog was dangerous and vicious.  However, as of today, the Supreme Court of Georgia, in a unanimous decision, held that victims of a dog attack need not prove evidence of a prior actual first bite by the dog to establish liability under O.C.G.A. 51-2-7.

In Steagald v. Eason (Ga. SC S16G0293), a father and mother allowed their son (Eason family) to bring home a pit bull as a pet.  The parents required that the son build a dog pen in the back yard.  The son did so, and the pit bull came to live at the home.  On the first day that that pit bull was in the backyard, it growled and snapped at the mom as she tried to feed the dog. Later that same day, the dog growled, barked and snapped at the father as he extended his hand close to the dog.  About a week later, the son was playing with the dog in the back yard and the dog was not confined to the dog pen, although he was on a lead.  A female adult neighbor just happened to walk into the back yard through the gate and approached the dog and extended her arm.  The dog jumped at the neighbor, bit her arm, and latched onto it.  The neighbor tried to run away but slipped and fell down.  While she was down on the ground, the dog bit and latched onto her right leg.  According to the case facts, the woman sustained serious injuries as a result of the attacks.

At some point in time, the woman filed suit against the Eason family for medical bills, injuries and pain and suffering against the parents under O.C.G.A. 51-2-7 which allows for damages against an owner or keeper of a “vicious or dangerous animal.”  The neighbors set forth that the pit bull was dangerous and vicious under the code section as the dog was involved in two snapping incidents against the parents a week before the actual dog bite as proof that the Eason family knew the pit bull had a propensity to bit and attack without provocation.  The Court of Appeals noted that the evidence did not indicate any prior attacks on people or animals and that snapping amounted to “merely menacing behavior” and affirmed summary judgment for the Eason family.

The American pit bull terrier, better known as the pit bull, has an extensive background of unprovoked attacks on animals and humans alike.  Some are deadly.  Unfortunately, that was the case yesterday when a pit bull (and a border collie that is missing) attacked two children on Cerro Street in Atlanta as the children were walking unattended to school.  There were actually three children but only two were attacked.  The young boy who passed away from his injuries was Logan Braatz (6) and the injured girl was Syari Sanders.  The news story regarding the attack seemed to imply that the boy was beyond help at the scene. The young girl is still treating at the hospital and was listed in stable condition.

Fulton County Animal Control arrived at the scene as did the police.  The story implies that one dog was shot by officers and that one dog is still missing.

Typically, a pit bull will attack at the most vulnerable part of the body, be it human or dog, and that is the neck.  The strength and pounds per square inch (PSI) of a pit bull bite is off the charts. Once a pit bull has attached, it is very difficult to get the dog to release. In some attacks, folks have positioned a wrapped up thick bath towel and moved it in position of the pit’s mouth to replace the animal or human that is being attacked.

50062_dog_biteMy client was 37 years old, recently separated, and a manual laborer who was in the wrong place at the wrong time.  Initially, my client was working on his wife’s car in the street when he decided to take a break and chat with his neighbor.  A short time later, the neighbor’s wife opened the front door and my client could see and hear that she was yelling at her two dogs to keep back from exiting the front door.  She was successful the first time.  Subsequently, she opened the door to walk down and give her husband a sack lunch.  However, this time, the two dogs rushed out the front door.

The dogs headed straight for my client who was in the street.  As he saw two rushing dogs, he attempted to jump up on the trunk of another neighbor’s car.  On his third attempt, the white (female) dog nipped at his pant leg which caused my client to slip and fall to the asphalt below squarely on his right elbow.  As he was down on the ground, he noticed that the second (male) dog was about to bite his face so he threw up his left forearm in defense which was promptly bitten by the black dog.  It took the owners over fifteen (15) minutes to get both dogs back into the house.  According to my client, the dogs were growling at the owners as well during this process.

My client drove himself to the hospital where his injuries were cleaned, a tetanus shot was provided and an x-ray was taken of the right elbow.  Fortunately, there were no fractures or stitches and the dogs were later found to be vaccinated against rabies.  Yet, the pain continued and worsened in his right elbow and left triceps area.  My client went back to the same hospital about a month and ten days later as fluid and swelling in his right elbow was causing limited range of motion and pain.  At the second visit, the hospital performed another x-ray, provided another prescription and discharged my client. The prescriptions were never filled due to the cost and over the counter NSAIDs were purchased.

I am an admitted dog lover.  From a review of my pictures as a toddler to the present, it is clear that dogs have been and still are a large part of my life.  My wife just reminded me that I should also mention that she brought a cat (Ollie) into my life and he has been a good family pet as well. 😉

The last three dogs that I have adopted over the years have all been rescue dogs.  The first dog, Griffin, was found on Griffin Street in The Bluff – a rough and tough part of Atlanta – as I was working on a real estate project back in 1999.  The second dog, Roscoe, was found as a pup snoozing in the middle of a dirt road on a large farm in Valdosta.  The third dog, Rudy, was found (and purchased) on the side of Tara Blvd in Jonesboro as I saw a developmentally disabled teenager carrying the pup by his neck as I was driving back to the office from a pre-trial conference in the State Court of Clayton County.  Unfortunately, the first two dogs have succumbed to cancer.  Yet, both dogs lived past the age of 14 and were provided a good home, a big yard and lots of cold water.  And, yes, the value of the lives of these two dogs was profound and inestimable to me.

I get many phone calls to my office from strangers regarding animal law in Georgia.  These calls range from dog bites to veterinarian/day care malpractice/negligence.  A great majority of the phone calls revolved around the concept of the monetary value of the loss of the life of a pet due to alleged veterinarian/daycare negligence relating to diagnosis or treatment, among other areas.  I always felt bad to deliver the bad news to these owners when I would tell them that in general, Georgia law viewed dogs as the personal property of the owner and not worthy of anything more than market value plus reasonable expenses incurred to cure the animal and that the intrinsic value of the pet to the owner was not relevant.  In most cases, this method of determination of value made such cases too expensive to pursue.

Here we go again. Yet another story in the news about an errant owner of one pit bull (this one named Rambo) who terrified, mauled and permanently disfigured a child in Douglas County, Georgia. The sordid details indicate an owner who had been cited on numerous occasions (10 to be exact) for allowing an unleashed Rambo, who had a previous history of an attack, to roam the Douglas County neighborhood at will. Rambo rushed at an eight year old neighborhood child named Dakota Holt, bit him in the face and knocked him to the ground causing catastrophic injuries that necessitated past plastic surgery and eventual reconstructive surgeries. It is estimated that the child will require ten (10) additional surgeries to repair and correct his disfigurement. It has also been reported that Dakota has sustained past, present and possibly future emotional trauma.

The Douglasville City Council previously voted against an ordinance specifically aimed at pit bulls a year ago. The ordinance would have required that owners of pit bulls register their animals and keep them confined or face a fine of $500.00. Apparently, dog owners and the Humane Society battled against the ordinance as it singled out specific dog breeds on the basis of previous attacks. The irony of the incredulous position of the Humane Society is not lost upon me.

I think Douglas County and the State of Georgia need to progressively push the envelope on the issue of protecting Georgia citizens from dangerous dog breeds. I have seen owners of pit bulls in and around Greater Atlanta walking their trophy dogs. I don’t think some of these owners would be deterred by a fine of $500. The proposed Douglas County ordinance lacked teeth. A toothless lion is still a toothless lion.

So here is a proposal. Enact legislation that is either county specific or state wide that would require owners of dangerous breeds to purchase a policy of insurance that insures the owner for the conduct of the animal. The requirement to acquire such insurance would apply irrespective of whether the owner owned a home or rented an apartment. Failure to adhere to said law would result in mandatory community service, a fine over several thousand dollars and jail time for repeat offenders. Not only would the insurance industry be happy with a new source of revenue but the public at large would be ensured that man’s best friend does not morph into man’s worst enemy in terms of unfunded medical liabilities arising from such attacks.
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