Liability Under Georgia's Dog Bite Law

Recently the Georgia Court of Appeals decided a dog bite case with unusual facts. This case involves whether a dog's medical condition can be a defense in a bite case. The Court held that knowledge of the dog's painful medical condition does not equal notice of vicious propensity to assign liability under Georgia dog bite law. The case is Custer v. Coward, --- S.E.2d ----, 2008 WL 3551225 (Ga.App.) and you can click on the link to read the case. Plaintiffs appealed the trial court's granting of summary judgment in favor of defendants. The plaintiffs' 5-year-old child was bitten by the defendants' dog while the plaintiffs were visiting the defendants, who were also their neighbors. While jumping on the defendants' trampoline, the plaintiffs' child fell onto the defendants' dog who bit the child on the leg and would not let go for a few minutes. The plaintiffs contendeded at trial that the defendants' knowledge that the dog had "Wobbler's Syndrome," a cranial neck instability that causes leg pain, somehow put the defendants on notice of the dog's vicious propensity. Plaintiffs argument is based on testimony surrounding the veterinarian's diagnosis that some dogs with Wobbler's Syndrome become aggressive, most likely from the pain of the condition. However, the court discarded plaintiffs' argument, finding that is no evidence that 'Butkus' had bitten or attempted to bite anyone before the incident. Further, there was no reason for the defendants to believe that the dog's leg condition would make it more apt to attack humans. What do you think? This is an unusual case and could set precedent in other states. This is one of the first cases where the dog has a medical defense for the bite.

2007 State Animal Protection Laws RankingsNovember 13th, 2007

The Animal Legal Defense Fund announces the release of its second annual report ranking every state and the District of Columbia on the relative strength and general comprehensiveness of their animal protection laws. This report, the only one of its kind in the nation, is based on a detailed comparative analysis of the animal protection laws of each jurisdiction, researching fourteen distinct categories of provisions throughout more than 2,800 pages of statutes. The ranking groups states into a top, middle or bottom tier, and includes a listing of the best five and worst five states. "We saw some significant gains by a number of states this year. However, there are still important areas for improvement in every state’s laws, even for those states currently ranked in the top tier," says Stephan Otto, Animal Legal Defense Fund's director of legislative affairs and author of the report. "It is our hope that this report will help draw attention both to the states who are leading the country with their strong animal protection laws, as well as to those states at the lower end of the rankings – states with laws that are plainly incapable of adequately protecting animals. Animals do not vote, but those who love and care about them do, so we encourage lawmakers to take notice and work on improving these vital laws."

Please contact your elected officials and encourage them to support improvements to the laws that protect animals. For additional information, see Model Animal Protection Laws collection and Animal Protection Laws of the USA & Canada compendium. Download the full report (PDF) Download the state rankings map

2007 State Animal Protection Laws Rankings Comparing Overall Strength & Comprehensiveness
Best Five
California, Illinois, Maine, Michigan, Oregon
Worst Five
Arkansas, Alaska, Kentucky, North Dakota, Utah

Top Tier
California, Colorado, Delaware, Illinois, Kansas Maine, Massachusetts, Michigan, Minnesota, Oregon, Rhode Island, Tennessee, Washington, West Virginia, Wisconsin, Vermont, Virginia

Middle Tier
Alabama, Arizona, Connecticut, District of Columbia, Florida, Georgia, Indiana, Maryland, Missouri, Nebraska, New Hampshire, New Jersey, New York, Nevada, Oklahoma, Ohio, South Carolina

Bottom Tier
Alaska, Arkansas, Hawaii, Idaho, Iowa, Louisiana, Kentucky, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Pennsylvania, South Dakota, Texas, Utah, Wyoming

Animal Law Clinic at Lewis & Clark School Wins First Case

Animal Law Clinic at Lewis & Clark Law School
wins first case it takes to trial

This week a Grants Pass jury unanimously found a man liable for shooting and killing a neighbor’s dog. The jury awarded $500 for the value of the dog, $600 in lost wages, $3,500 in emotional distress damages, and $10,000 in punitive damages. The decision, atypical for a jury in southern Oregon, came during the first case taken to trial by the Animal Law Clinic at Lewis & Clark Law School.

The plaintiff, Donna Zumbrum, owned a yellow Labrador retriever named Miss Lily. Miss Lilly was shot and killed while chasing a deer through defendant Robert Lenander’s property. The parties agreed that the dog darted from Zumbrum’s home and was trespassing on Lenander’s property. Zumbrum’s attorney contended that the appropriate response to the offense should have been a fine from Animal Control rather than a shot from Lenander’s gun. The law, said the attorney, allows persons to shoot dogs only for harassing or killing their livestock, in order to protect property including companion animals, or for threatening or harming people.

The story itself began with an odd twist. Nine months before her dog was killed, Zumbrum received Miss Lily as a gift from her fiancé. On the same day he gave Miss Lily to Zumbrum, her fiancé was murdered.

The Josephine County District Attorney’s office has a history of not pursuing animal abuse crimes. “We are hopeful this jury verdict will send a strong message to the community, including the District Attorney’s office, that the unlawful shooting of animals is not tolerated,” said Laura Ireland Moore, Zumbrum’s attorney who is the Executive Director of the National Center for Animal and law professor of the Animal Law Clinic at Lewis & Clark Law School. “Donna is relieved that Lenander has finally been held accountable for his actions.”

The National Center for Animal Law trains and supports animal law students in order to further the field of animal law and promote legal protections for animals by fostering curriculum development; hosting conferences, competitions, and trainings; providing financial support for animal law students; and developing resources for students pursuing careers in and involving animal law. The Animal Law Clinic provides law students real-world experience in animal protection litigation and legislative efforts.

Officer Hospitalized after Chihuahua Attack

A police officer in Fremont, California, was hospitalized after he was attacked by a pack of Chihuahuas. He suffered severe bite wounds to his ankles. I know that sounds like a Steven Wright joke, but it's true.

SF Chronicle

veterinary malpractice and claims for damages

Using the death of a dog, "Lucky," following a dental procedure as its starting point, the attorney for the owner's of the dog are asking for hundreds of thousands of dollars in a growing trend toward expansive veterinary liability. If the attorney is successful, Lucky's case would join a series of recent court decisions that essentially have treated animals as human under the law. In a reflection of the special place that pets have come to hold in Americans' hearts, U.S. courts are bucking centuries of legal decisions that have defined animals as property. In recent years, courts in New York, Maryland, Texas and about 1/3 of the states in the United States have resolved custody disputes involving pets by deciding what's best for the pet. Judges in 25 states have administered financial trusts set up in pets' names.

And as Lucky's case indicates, there has been another turn in animal law: Courts have begun to take claims of veterinary malpractice seriously. A $39,000 judgment in California recently is generally described as the largest veterinary malpractice award to date. The verdict has been appealed by the defendant veterinarians. The matter is before the Fourth District Court of Appeals, which has one of the more congested appellate dockets in the state. Interested readers can follow the case at the Court's website on-line docket.

Of related interest: A wide-ranging trove of resources on the law and its relation to animals can be accessed through the Animal Legal & Historical Center, a service of the College of Law of Michigan State University.

Washington State Kennel Animal Abuse Trial

I just returned from a wonderful speaking engagement with the American Boarding Kennel Association on March 11, 2008. It was terrific to spend time with a group of people who share my thoughts on the care of our four legged friends. My seminar topic was "Negligence In The Pet Care Industry." I also spoke about negligence in relation to employees and general business approaches in the Pet Care Industry. In relation to that, I would like to share this news with all of you. There is a trial going on in Washington State right now related to alledged abuse of a Jack Russell terrier by a kennel owner. One of my topics was how the Pet Care Industry must develop a "standard of care" that judges and juries can use in determining if abuse or negligence occurs. This article is a perfect of example of why that standard, developed from within our industry, needs to be formalized. Needless to say we all really hate to hear about trials and articles like the one below. Here is the article just in case you haven't run across it already ! Pay careful to the section mentioning "industry accepted" standards. If we had a "standard of care" that is what the defense attorney would be referring to...or maybe the Plaintiff's attorney ! If we had a "standard of care" the Judge would have had a standard to measure the abuse by. Obviously the Judge was confused, but if, as an industry, we had instutited a "standard of care" then the outcome of this case might have been quite different. At least, the Judge would have been well informed instead of confused ! Let's get busy. If your interested in this topic, please email me at PetCareLaw@gmail.com.

Employees testify in dog abuse trial
Thursday, March 13, 2008 6:04 AM PDT
By Amy M.E. Fischerafischer@tdn.com

On the first day of their boss's animal cruelty trial Wednesday, several Dog Zone employees testified about what they witnessed Aug. 27 at the Longview dog day care that left a Jack Russell terrier injured and smeared with blood, feces and urine.Kyle Merwin, who worked at the Dog Zone in the second-floor grooming area until last fall, said he heard yelping, cursing and a loud thud coming from a closed room in which defendant Doug Kalberg had taken a 3-year-old dog named Catcher.Wednesday in Cowlitz County Superior Court, Merwin told Judge Stephen Warning he saw Kalberg leave the room dangling Catcher off the ground by the dog's leash and go downstairs, where Merwin then heard Catcher "screaming" and squealing as if in pain.Merwin told Judge Stephen Warning he stood on a grooming table so he could see what was happening downstairs."He had his hands around Catcher's neck," the young man testified. Kalberg, on his knees, slammed the little dog's head against the concrete floor three times and slapped the side of Catcher's head, Merwin said. Then Kalberg pushed the dog, which was squirming on its back, into the corner of the kennel, he said."When it was in the corner, his feet weren't moving," Merwin said. "Not dead, but just laying there. He gave up."Kalberg, 53, is on trial for one count of first-degree animal cruelty for his alleged violence against Catcher. He also is being tried for two counts of misdemeanor animal cruelty for two other alleged incidents involving two other dogs. He has waived his right to a jury.The judge listened to more than three hours of testimony Wednesday by six Dog Zone employees, former and current, and Jennifer Comin, the Jack Russell's owner.In his opening statements, defense attorney Kevin Blondin said the evidence would show his client used "industry accepted" dog training techniques to control Catcher after the dog bit him during a grooming appointment. Kalberg held Catcher on his back using a maneuver called an "alpha roll," intending to help Catcher work through his "tantrum," Blondin said.Blondin also implied that Kalberg may be a target for disgruntled employees who admitted they had a poor working relationship with him.Deputy Prosecutor James Smith said Kalberg let his anger get the better of him, and he crossed the line into what the state considers animal cruelty.In her testimony, Dog Zone employee Jennifer Cassiday said Kalberg didn't seem to comprehend the seriousness of the situation when he spoke to her the following day, Aug. 28.Cassiday said she told Kalberg he made a bad choice and there likely would be consequences."At one point he had told me that 'dogs don't have rights,'" said Cassiday.Jennifer West, another former employee, accused Kalberg of hurting her two dogs when she brought them to work (employees regularly bring their dogs to the Dog Zone).West said Kalberg yanked her German Shepherd by the dog's deformed leg on Dec. 23, 2006, while trying to prevent the dog from leaving an enclosure.The dog was "crying and screaming," said West, who worked at the Dog Zone three years. "He didn't let her go until I said, 'Don't hurt my dog.' He got a couple inches from my face and screamed, 'Do your damn job.'"A current employee, Walter "Buddy" Walls, testified that on June 15, Kalberg grabbed another of West's dogs by the cheek and shoved it with his foot while herding it into a kennel.Judge Warning concluded the day with a tour of the Dog Zone, at 602 California Way, to better understand the building's layout with respect to where employees when they saw and overheard the incident with Catcher.The trial continues today at 9 a.m. and is expected to finish this afternoon.

Case Update 3.15.08

A Cowlitz County Superior Court judge this afternoon found Dog Zone owner Doug Kalberg not guilty of animal cruelty on all three counts.Judge Stephen Warning said he couldn’t say beyond a reasonable doubt that the owner of the Longview dog day-care business intentionally inflicted “undue pain” on the Jack Russell terrier Kalberg is accused of abusing Aug. 27 at the Dog Zone.However, Kalberg’s attempt to “correct” the dog when it behaved aggressively at a grooming appointment did result in a hemorrhage to the dog’s eye, the judge noted.“Which leaves the question of whether or not he acted not merely negligently, but criminally negligently,” Warning said. “I guess the answer is I’m just not sure, which means I find Mr. Kalberg not guilty.”Warning said he heard no evidence of criminal conduct in testimony regarding the two misdemeanor charges against Kalberg. A former Dog Zone employee had accused her boss of deliberately hurting two of her dogs.

Public Opinion Sways Military - Marine Dog Goes Home

The US Airforce is the governing agency for canine recruits. In a precedent setting decision this Christmas the canine partner, Lex, of a fallen Marine, Dustin Lee, will be allowed to retire early with Dustin's family. This isn't the first time a working military dog has been allowed to retire early, but it doesn't happen that often. Everytime it does happen, especially when public opinion has ushered in the decision, we come a step closer to broad legal acceptance of animals as family members, instead of objects we own. It is the mighty weight of public policy that swings the pendalum. Although Lex is still "fully functional" (Marine lingo for - still able to perform his military job), the military has approved early adoption/retirement for Lex so he can go to live with Dustin's family. In keeping with other cultural trends, this is still one more indication of more wide spread legal recognition of the importance of pets in our lives and families. More importantly, it is an indication that in the fartherest reaches of our society, the military - not long on sentiment - has openly recognized this relationship. For all of us animal lovers and especially dog lovers, the article is below - just in case you haven't already seen it. Happy Holidays !

SAVANNAH, Georgia (AP) -- Marine Cpl. Dustin Jerome Lee and his German shepherd, Lex, scoured Iraq for roadside bombs together, slept next to each other and even posed in Santa hats for a holiday photo.

Lex, the bomb-sniffing dog, is going to live with the family of Marine Cpl. Dustin Jerome Lee, who was killed in Iraq. When a mortar attack killed the 20-year-old Marine in Falluja a few months later, Lex, whimpering from his own injuries, had to be pulled away, Lee's father was told. That strong bond compelled the slain Marine's family to adopt 8-year-old Lex even though the military said he still had two years of service.
The family lobbied the military for months, launched an Internet petition and enlisted the aid of a North Carolina congressman who took their case straight to the Marine Corps' top general.
On Wednesday, the Marine Corps finally announced Lex could go home to Lee's family. It is the first time the military has granted a dog early retirement to be adopted by someone other than a former handler. "We knew that's what Dustin would have wanted out of this," said Jerome Lee, the slain Marine's father. "He knew that we would take care of Lex and love him, just like our own."

Lee's family from Quitman, Mississippi, is scheduled to pick up Lex from the Albany base December 21, exactly nine months after the fatal attack. Though some shrapnel remains lodged in his back, Lex has otherwise recovered from his wounds and has been serving alongside military policemen at the Albany base since July. "It is extraordinary," said Col. Christian Haliday, commander of the Marine Logistics Base in Albany, Georgia, where the dog is based. "As far as we know, it's the first time that a waiver of policy of this nature has been granted."
Officials at Lackland Air Force Base in San Antonio, which trains dogs for all service branches, confirmed it is the first case of its kind.

Lee joined the Marines after graduating from high school in 2004. His father said his drive to become a dog handler came from Lee's mother, who worked with search-and-rescue dogs for their local emergency management agency when Lee was a boy. After finishing his military police and dog handler training, the young Marine headed to Albany. Lee adopted his first canine partner, Doenja, from the military and sent him home to Mississippi last year when the 11-year-old dog began losing his sight and had to retire. Lee formed an equally strong bond with his new partner, Lex. The military has more than 1,700 dogs that work alongside American troops, including about 260 in the Marines. Their bomb-sniffing skills have been in high demand in Iraq and Afghanistan.

U.S. Rep. Walter Jones, R-North Carolina, said he discussed the Lees' case with Gen. James T. Conway, the Marine Corps commandant. "The way I look at this, dogs are being trained every day to be a part of the armed forces," Jones said. "This family gave their son for their country. This is a small gift back to them."

Copyright 2007 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.