About five million Americans are bitten by dogs ever year. The United States Postal Service, the American Veterinary Medical Association, and the American Academy of Pediatrics sponsor the National Dog Bite Prevention Week in May, and USPS reports that about 3,000 city and rural carriers are bitten by dogs every year. The USPS regularly posts tips about how to reduce dog bite risks.
A significant number of law enforcement officers are also bitten, as the first case below describes. The officer was trying to interview the neighbor of someone who had applied for a gun permit. Failure to train and control dogs is a major problem in our dog-tolerant society. The second case here is far more tragic and must speak for itself.
Thor Gets a Pen and a Muzzle for Attacking Policeman
In Town of Grand Island v. Long, 34 Misc.3d 1221, 2012 WL 384931 (City Court, City of Tonawanda, 2012), one sees a local judge dealing with a dog bite case in a sensible manner. The events took place in Grand Island, New York, but both judges of the Town of Grand Island Court recused themselves due to potential conflicts of interest caused by their prior representations of the defendant or his family. The case was moved a few miles to Tonawanda.
Sheriff Deputy Anthony Yavicoli was conducting a pistol permit investigation on Sunday, January 30, 2011. Thomas Long was one of the neighbors of the pistol permit applicant, and Yavicoli wanted to interview him. Yavicoli pulled into Long�s driveway, got out, and became aware of two dogs, a Labrador that shied away from him and a German shepherd that bit him on the left calf and shin and then both inner thighs. Attempting to get back in his car, he was bitten from behind. He returned to his station, then went to the hospital. The wounds are described by the trial judge:
�Upon examination of his wounds, Deputy Yavicoli discovered he was bleeding and that the bites had broken the skin in all three bite locations. Additionally, his uniform pants were ripped in all three bite locations. He then drove himself to Erie County Medical Center. At the emergency room, the staff cleaned and bandaged the wounds. He was also given an antibiotic, bandages, ibuprofen, and neosporin. After he was released, he returned to the sheriff substation. The deputy received no stitches or shots as a result of the bites. The testimony of the Deputy regarding these bites was supplemented by pictures of the bite marks on the day of the bite.�
Yavicoli took two days off, but the pain continued even after he returned to work. Although he had some scars, he was not seen again by a medical professional.
The trial court determined that the attack on Yavicoli was unjustified and unprovoked. Thor, the German shepherd, was determined to be a dangerous dog, which had caused physical injury. However, in order to consider euthanization, serious physical injury was required. Serious physical injury is defined by New York as �physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.� (Agriculture & Markets Law � 108(29))
There were three other reports of dog bite incidents involving Thor.
The judge said he could not determine by clear and convincing evidence that the injuries sustained by Yavicoli involved serious or protracted disfigurement. The judge cited a prior case where a dog bite tore a hamstring, requiring antibiotics, ibuprofen, and physical therapy for six to eight weeks. This appeared to be more serious than Yavicoli�s injuries, but was not found to involve serious physical injury. (People v. Jornov, 65 A.D.3d 363, 881 N.Y.S.3d 776 (Ct. App. 2009).
The trial court, therefore, ordered the following:
1. Thor was to be neutered, if he was not neutered already.
2. A microchip was to be put in Thor, again if there wasn�t one in him already.
3. Thor was to be evaluated by �a certified animal behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog is responsible for all costs associated with such evaluations and training ordered under this section. This evaluation and training shall be in addition to any other evaluations that Thor has already undergone�.�
4. Thor was to be kept in a secure locked pen when he was outside on the Long premises. �The pen shall be designed and constructed to prevent the escape of the dog, to prevent unauthorized contact with the dog, and to protect the dog from the elements. The pen shall be constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be affixed to posts and to a concrete footing and/or a pad that the dog cannot push through, climb over or dig out under such pen, which is to be no less than 6 feet in height.�
5. When guests visited the Longs, Thor was to be secured in another room away from the guests or in his pen.
6. Thor was to be on a leash and �muzzled (in a manner that will prevent biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration) and handled by someone over the age of 21 years at any time that he is on public premises�.�
7. The Longs were to maintain a $100,000 liability insurance policy for personal injury or death resulting from an attack by Thor. The court required that proof be provided to it of compliance with this requirement.
Thomas Long was also fined $400. Lest it be thought that the neutering was unnecessary, one study found that sexually intact dogs were 2.6 times more likely to bite than neutered dogs.
The insurance coverage could be a problem, since presumably no umbrella policy covered Thor's biting habit. An insurer might be willing to cover, but would probably set a high premium and stipulate compliance with the court's order.
Given that Thor had other incidents, the judge has to be regarded as more than fair to Thor. It is also apparent that the owners should check out local obedience classes.
A Tragedy in South Carolina
In South Carolina v. Collins, 2012 WL 469710 (Ct. App. 2012), a boy�s mother wondered where her son was when it was time for dinner. After looking at neighbors� houses, she called the sheriff�s department. Officers found the boy�s body in the yard of Bentley Collins. As the boy�s mother testified, �he was torn to pieces. Pieces.�
Press reports have included the name of the victim and pictures of the victim and Collins, and other details of the case, but I will confine myself here to the legal perspective provided by the court.
Collins was convicted for involuntary manslaughter and three counts of owning a dangerous animal under the South Carolina Code. He was sentenced to five years in prison, followed by five years of probation. He appealed the conviction based on the admission of seven photos of the boy�s body that were taken by a forensic pathologist before he performed an autopsy, arguing unfair prejudice that substantially outweighed probative value. The court described the photos as follows:
�The seven photos admitted are graphic and shocking. They depict a ten-year-old boy's body on an autopsy table after being partially eaten by dogs. The photos are in color. One photo provides an encompassing view of what remains of the boy's upper body. Three close-up photos show the remains of his face. The exposed skull and jaw bone are plainly visible in these photos. Two of these close-ups also show the exposed arm, shoulder, and rib bones, where the flesh was eaten away from the middle of his chest, across his shoulder and down to his elbow, on both sides. One photo shows the left side of the boy's face from the back, again with the exposed jaw bone visible. The remaining two photos are of the body from the waist down, showing his blood-stained shorts and the bite marks on his legs. The pathologist described what the photos show, but seeing the photos draws an intense emotional response and a level of sympathy for the dead child that does not come from the testimony. It is difficult to look at each photo, and the combined effect of all seven is disturbing. The photos that show what remains of the child's face are chilling. The danger of unfair prejudice of the admitted photos is extreme.�
The prosecution�s theory at trial was that Collins �underfed the dogs, and because the dogs were hungry, they became aggressive and attacked the boy for food.� Officers who responded to the scene said they saw no visible food bowls for the dogs. A pathologist supported this argument, testifying:
�There were extensive traumatic injuries consisting of loss of skin and soft tissue in a tearing fashion about the face, the ears, the eyes, the neck, the chest. There was loss of skin and soft tissue with exposure of the bones of both shoulders. Essentially, the humeral bone in the upper arm, both right and left, was exposed from the shoulder to the elbow.�
The pathologist also stated that the ears and nose were completely eaten away. He court summarized additional testimony of the pathologist as follows:
�The State asked the pathologist what led him to conclude the ears and nose were �eaten away.� He responded: �There was a virtual complete absence of the ear structures on the right side and just remnants, shredded remnants of skin and what were probably portions of the ear on the left. They were essentially gone.� Finally, the pathologist said he normally does not take photos of an autopsy, but did so in this case because �[t]his autopsy showed tremendous traumatic injury to this young man. This degree of injury was [as] significant [a] traumatic injury as I've seen. I've never seen an attack by animals of this type....� Thus, before the photos were admitted, the pathologist's testimony conclusively established that the dogs ate the boy.�
A dog behavior expert also testified that the dogs attacked the boy because they were hungry. The behaviorist testified:
�Based on�in ten years going back on reports that I've noted on dog bites and dog attacks and deaths caused by dogs this is the worst case I've ever seen. I worked for the sheriff's office for over a decade, and I have never seen something so gruesome.�
The court concluded that the testimony was enough, that the probative value of the photos was minimal and the danger of unfair prejudice high. The court concluded:
�These gruesome photos have an overwhelming capacity to lure the jury into declaring guilt on the emotional basis of sympathy for the boy and his mother and horror at the sight of the boy's body. This is the unfair prejudice that substantially outweighs the probative value of the photos. We recognize that the photos add a visual element not present in the testimony of the witnesses. However, this visual element does far more to create a danger of unfair prejudice than it does to add probative value.�
The appellate court reversed and remanded for a new trial.
Although the dogs might have been hungry in this case, a study of dog bite patterns in children concluded that dog attacks of children are usually motivated by aggression, not hunger. The researchers also found that attacks on children more often involve bites to the head and neck region than is the case with adults. Some severe cases resulted in decapitation.
Conclusion
As a dog owner, I believe that owning a dog involves responsibilities, serious responsibilities. Perhaps because they adapt to us so easily, we have a tendency to assume that aside from putting out food and allowing them to relieve themselves, we have no obligations to them. In a society where toys and gadgets increasingly require no assembly, come ready to go as soon as removed from the box, it seems to be a great shock to many people that dogs are independent thinking animals that need to be trained to be good citizens in our increasingly complex social environments. Training takes time. I believe that if you don�t have the time to give, don�t get a dog.
Showing posts with label dog bite law. Show all posts
Showing posts with label dog bite law. Show all posts
Wednesday, 7 March 2012
Saturday, 3 December 2011
An Overly Friendly Dog Pushes Over a Guest: Is Suing Owners of Goosers a New Profit Center in Personal Injury Law?
My dog sometimes gets rambunctious and runs between the legs of guests. We can generally control this, and try to warn people to be on their guard on entering our house. Being a lawyer, I suppose I have always had in the back of my mind the question of whether I might be liable if somebody falls down and breaks a hip.
A recent decision by an appellate court in New Jersey provides some perspective on this issue for those of us who have overly friendly dogs. The fact that the dog�s owner was not liable in this particular case should not lead people who own �goosers,� �bumpers,� and �running through you� dogs to believe that they can never be liable when such demonstrations of interest or affection get out of hand.
A Longstanding Friendship
Rochelle Puzzutiello and Gail Wurster became close friends in 1995. They spoke on the phone daily and frequently spent nights at each other�s homes. Puzzutiello moved to Florida in 2004, but they continued their phone conversations nearly every day. Puzzutiello returned to New Jersey for holidays and kept her apartment in Audubon.
Wurster was diagnosed with cancer in early 2009 and Puzzutiello made plans to return to New Jersey as soon as Wurster was out of surgery. On March 23, 2009, Puzzutiello�s brother, Joseph Ezzi, drove her to Wurster�s home. On entering the house through the back door, Wurster�s dogs were at her feet and neither seemed excitable or unruly to Puzzutiello, and they remained calm while she unpacked.
The visit progressed without incident until Puzzutiello tripped over the younger dog, named Lucy, who weighed about forty pounds and was described by Puzzutiello as �lovable� and �very gentle.� The fall fractured Puzzutiello�s ankle. The incident was described by Wurster to an investigator as follows:
�The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking.... The dogs were overly excited I guess[ ] to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall.... I knew she was injured seriously.... I want to say again that I felt terrible about this accident. I feel that it was the action of my smaller dog, Lucy when she placed herself between [plaintiff's] legs that caused her to trip.�
Trial Court Grants Summary Judgment
The trial court granted summary judgment to the defendant, stating:
�These are dogs. These are dogs that are walking around in their owner's home, their owner's back from the hospital, sitting�recovering from surgery. This is a family friend who's been in the company of the dogs many, many times. Whether the theory of liability here is that ... defendant should have known that the dogs were especially excitable and had a duty to protect the plaintiff by putting the dogs in some other room or controlling them or otherwise preventing them from causing this injury to the plaintiff[,][t]his is not a dog bite case. This is not a dog jumping on somebody. This is not a dog walking in an unruly fashion. This is a dog in a house with its owner, with its friend, the plaintiff, who as the plaintiff is walking moves between [plaintiff's] legs and causes her to trip....
�The court finds as a matter of law that under those factual circumstances, the defendant had no duty of care to place the dogs somewhere other than in the living room. The plaintiff came to meet with [defendant] and while the court ... feels badly that the plaintiff was injured, the court can find no duty of care on the part of the owner who was recovering from abdominal surgery, who was in her house, who was with her dogs. The�sadly, the plaintiff tripped. She tripped over a dog that was walking around in a room that the dog lived in.�
Appellate Court Reviews the Facts and Law
Puzzutiello appealed, arguing there was a genuine issue of material fact and that summary judgment should not have been granted. The New Jersey appellate court noted that when �there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a �genuine� issue of material fact�� under New Jersey evidentiary rules (quoting Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 666 A.2d 146 (1995)).
The appellate court, in a decision written by Judge Linda Baxter, provided its own summary of the facts, stating:
�[W]e conclude that Lucy moved between plaintiff's feet as plaintiff was returning to the sofa. However, there is no evidence in the record warranting a conclusion that Lucy, the dog that tripped plaintiff, was in any way unruly, excitable or out of control on the day in question. Plaintiff herself described Lucy as a �gentle� and �lovable� dog, and plaintiff acknowledged that she had never had any concerns about Lucy during any of the numerous occasions she had visited defendant. Although plaintiff stated that defendant's other dog Gabby was a �jumper,� the record is devoid of any evidence remotely suggesting that Lucy, who was the cause of plaintiff's injury, had ever acted in a manner that endangered plaintiff or anyone else. Nor was there any indication that on the day in question, Lucy had been doing anything other than sitting at defendant's feet prior to the moment when the dog apparently stood from that position and began to follow plaintiff back to her seat on the couch. We reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion.�
The court noted that Puzzutiello was not claiming that Wurster should have put the dogs in another room, only that Wurster should have warned her the dogs were unruly or excitable. The court noted that while liability might have applied for a dog bite, there was no bite here. The court noted that the question was whether landowner liability applied, but a �host has a duty to warn a social guest of a dangerous condition on the property only when the host has actual knowledge of a dangerous condition of which the guest is unaware.� Here, Puzzutiello had been to Wurster�s home many times and �was familiar with defendant�s dogs, their demeanor, and the fact that they could move, and were frequently �in the say� and �wanted to be the center of attention.��
The court elaborated:
�[P]laintiff here knew a dog was present and that the dog might move from where it was sitting. Because plaintiff was aware of the dog's presence in the home, and in the specific room where plaintiff was situated, defendant had no duty to warn her that the dog might move, as this was a readily observable condition of which plaintiff had knowledge. Moreover, in light of plaintiff's concession that Lucy had been acting 'fine' during plaintiff's entire visit, there was nothing about the dog's behavior that could have triggered any duty on the part of defendant to warn plaintiff that she should be especially careful about the dog. We therefore conclude that under the facts presented, there was no duty to warn plaintiff, who was a social guest, that the dog Lucy posed any danger to plaintiff.�
The appellate court concluded that the trial court had not erred in granting summary judgment, and affirmed.
One would like to know if the two remained friends, or if the real defendant was an insurance company, but nothing outside of the court record seems, at least so far, to have reached the media.
Different Facts Might Produce Different Results
Those of us with friendly pets should recognize that there might be circumstances where summary judgment would not be granted. If you know your dog has a tendency to push people over, and the guest does not know this, you have a duty to give a warning. Although the situation is not identical to a bite, liability might still attach. Don�t assume that an injury will always be overlooked, either by a litigious guest or a court.
Although the facts of this case involved a plaintiff visiting the defendant in her house, one could easily imagine an overly rambunctious dog at a dog park causing an injury to another user. A google search for "over friendly dog" + "personal injury" suggests that a number of lawyers specializing in dog bites now devote a portion of their practices to representing plaintiffs injured by overly friendly dogs.
If you have such a dog, it�s probably worth asking your insurance provider about the extent of your coverage for pet incidents. Bites are usually covered in general homeowners� policies, but your insurer may not have thought about the fact that a friendly dog can sometimes be as injurious as an aggressive dog.
Puzzutiello v. Wurster, 2011 WL 5169432 (Ct. App. 2011)
A recent decision by an appellate court in New Jersey provides some perspective on this issue for those of us who have overly friendly dogs. The fact that the dog�s owner was not liable in this particular case should not lead people who own �goosers,� �bumpers,� and �running through you� dogs to believe that they can never be liable when such demonstrations of interest or affection get out of hand.
A Longstanding Friendship
Rochelle Puzzutiello and Gail Wurster became close friends in 1995. They spoke on the phone daily and frequently spent nights at each other�s homes. Puzzutiello moved to Florida in 2004, but they continued their phone conversations nearly every day. Puzzutiello returned to New Jersey for holidays and kept her apartment in Audubon.
Wurster was diagnosed with cancer in early 2009 and Puzzutiello made plans to return to New Jersey as soon as Wurster was out of surgery. On March 23, 2009, Puzzutiello�s brother, Joseph Ezzi, drove her to Wurster�s home. On entering the house through the back door, Wurster�s dogs were at her feet and neither seemed excitable or unruly to Puzzutiello, and they remained calm while she unpacked.
The visit progressed without incident until Puzzutiello tripped over the younger dog, named Lucy, who weighed about forty pounds and was described by Puzzutiello as �lovable� and �very gentle.� The fall fractured Puzzutiello�s ankle. The incident was described by Wurster to an investigator as follows:
�The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking.... The dogs were overly excited I guess[ ] to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall.... I knew she was injured seriously.... I want to say again that I felt terrible about this accident. I feel that it was the action of my smaller dog, Lucy when she placed herself between [plaintiff's] legs that caused her to trip.�
Trial Court Grants Summary Judgment
The trial court granted summary judgment to the defendant, stating:
�These are dogs. These are dogs that are walking around in their owner's home, their owner's back from the hospital, sitting�recovering from surgery. This is a family friend who's been in the company of the dogs many, many times. Whether the theory of liability here is that ... defendant should have known that the dogs were especially excitable and had a duty to protect the plaintiff by putting the dogs in some other room or controlling them or otherwise preventing them from causing this injury to the plaintiff[,][t]his is not a dog bite case. This is not a dog jumping on somebody. This is not a dog walking in an unruly fashion. This is a dog in a house with its owner, with its friend, the plaintiff, who as the plaintiff is walking moves between [plaintiff's] legs and causes her to trip....
�The court finds as a matter of law that under those factual circumstances, the defendant had no duty of care to place the dogs somewhere other than in the living room. The plaintiff came to meet with [defendant] and while the court ... feels badly that the plaintiff was injured, the court can find no duty of care on the part of the owner who was recovering from abdominal surgery, who was in her house, who was with her dogs. The�sadly, the plaintiff tripped. She tripped over a dog that was walking around in a room that the dog lived in.�
Appellate Court Reviews the Facts and Law
Puzzutiello appealed, arguing there was a genuine issue of material fact and that summary judgment should not have been granted. The New Jersey appellate court noted that when �there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a �genuine� issue of material fact�� under New Jersey evidentiary rules (quoting Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 666 A.2d 146 (1995)).
The appellate court, in a decision written by Judge Linda Baxter, provided its own summary of the facts, stating:
�[W]e conclude that Lucy moved between plaintiff's feet as plaintiff was returning to the sofa. However, there is no evidence in the record warranting a conclusion that Lucy, the dog that tripped plaintiff, was in any way unruly, excitable or out of control on the day in question. Plaintiff herself described Lucy as a �gentle� and �lovable� dog, and plaintiff acknowledged that she had never had any concerns about Lucy during any of the numerous occasions she had visited defendant. Although plaintiff stated that defendant's other dog Gabby was a �jumper,� the record is devoid of any evidence remotely suggesting that Lucy, who was the cause of plaintiff's injury, had ever acted in a manner that endangered plaintiff or anyone else. Nor was there any indication that on the day in question, Lucy had been doing anything other than sitting at defendant's feet prior to the moment when the dog apparently stood from that position and began to follow plaintiff back to her seat on the couch. We reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion.�
The court noted that Puzzutiello was not claiming that Wurster should have put the dogs in another room, only that Wurster should have warned her the dogs were unruly or excitable. The court noted that while liability might have applied for a dog bite, there was no bite here. The court noted that the question was whether landowner liability applied, but a �host has a duty to warn a social guest of a dangerous condition on the property only when the host has actual knowledge of a dangerous condition of which the guest is unaware.� Here, Puzzutiello had been to Wurster�s home many times and �was familiar with defendant�s dogs, their demeanor, and the fact that they could move, and were frequently �in the say� and �wanted to be the center of attention.��
The court elaborated:
�[P]laintiff here knew a dog was present and that the dog might move from where it was sitting. Because plaintiff was aware of the dog's presence in the home, and in the specific room where plaintiff was situated, defendant had no duty to warn her that the dog might move, as this was a readily observable condition of which plaintiff had knowledge. Moreover, in light of plaintiff's concession that Lucy had been acting 'fine' during plaintiff's entire visit, there was nothing about the dog's behavior that could have triggered any duty on the part of defendant to warn plaintiff that she should be especially careful about the dog. We therefore conclude that under the facts presented, there was no duty to warn plaintiff, who was a social guest, that the dog Lucy posed any danger to plaintiff.�
The appellate court concluded that the trial court had not erred in granting summary judgment, and affirmed.
One would like to know if the two remained friends, or if the real defendant was an insurance company, but nothing outside of the court record seems, at least so far, to have reached the media.
Different Facts Might Produce Different Results
Those of us with friendly pets should recognize that there might be circumstances where summary judgment would not be granted. If you know your dog has a tendency to push people over, and the guest does not know this, you have a duty to give a warning. Although the situation is not identical to a bite, liability might still attach. Don�t assume that an injury will always be overlooked, either by a litigious guest or a court.
Although the facts of this case involved a plaintiff visiting the defendant in her house, one could easily imagine an overly rambunctious dog at a dog park causing an injury to another user. A google search for "over friendly dog" + "personal injury" suggests that a number of lawyers specializing in dog bites now devote a portion of their practices to representing plaintiffs injured by overly friendly dogs.
If you have such a dog, it�s probably worth asking your insurance provider about the extent of your coverage for pet incidents. Bites are usually covered in general homeowners� policies, but your insurer may not have thought about the fact that a friendly dog can sometimes be as injurious as an aggressive dog.
Puzzutiello v. Wurster, 2011 WL 5169432 (Ct. App. 2011)
Subscribe to:
Posts (Atom)