Appeals Court Affirms Award of Veterinary Expenses for Injured Dog, but Extends Prohibition of Emotional Distress Damages.

The appeals court affirmed a lower court award of veterinary expenses to owners trying to save their small dog after an unprovoked attack by an unleashed German shepherd.  The Bichon Frisé had severe internal injuries and external wounds requiring emergency surgery to the tune of $8,000. In addition to vet costs, the court also awarded the replacement value of the dog. Because Massachusetts law considers dog personal property, the owner of the German shepherd argued that damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog's injuries. See Irwin v. Degtiarov. The appeals court found that reasonable veterinary costs can be recovered even if they exceed the market value or replacement cost of an animal injured by a dog. Whether particular veterinary costs are reasonable, and whether it is reasonable to incur them, will depend on the facts of each case.  Among the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner's household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue. Once again, the appeals court affirmed that although the owner's affection for the animal may be considered in assessing the reasonableness of the decision to treat the animal, the owner cannot recover for his or her own emotional distress. Nor is the owner entitled to recover for the loss of the animal's companionship. An earlier appeals court case stated that emotional distress damages were not available because in that case the owner did not witness the damage. See Krasnecky v. Meffen.  Despite not being a question in this present case, the court suggests even if an owner witnesses the attack, he or she cannot get emotional distress damages.  The Supreme Judicial Court has yet to take up this question, but this ruling seems to close the door on the possibility of emotional distress damages.

Big Win for Non Human Animals

The Massachusetts Supreme Judicial Court announced today that in an emergency the police can enter private property to protect the lives of non-human animals. The case is Commonwealth v. Duncan , SJC-11373 (April 11, 2014).  The case involves a Lynn woman who let two of her dogs freeze to death outside and fought an animal cruelty conviction by claiming the police had no right to enter her property to rescue the third, still breathing, dog.  The court found that the emergency aid exception to the requirement of a search warrant permits the police in certain circumstances "to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be [an animal] inside who is injured or in imminent danger of physical harm." It moderated that finding with the statement that "the reasonableness of the search must be determined on a case-by-case basis upon consideration of the totality of the circumstances". Massachusetts joins other states in recognizing "a public interest in the preservation of life in general and in the prevention of cruelty to animals in particular.how society values animals". Congratulations to Essex Assistant District Attorney Paul C. Wagoner who did an excellent job arguing this case before the court.

Glickman Turley LLP represents animal welfare nonprofits and others interested in animal welfare.

NY Court finds lack of authority for breed specific prejudice.

In a victory for pit bull dogs, on April 4, 2013,  the New York Supreme Court, Appellate Division, dismissed a judgment from the lower court finding a pit bull type dog dangerous by virtue of its breed.   The case is based on an incident in November 2011, when a pit bull who had a collar on, was wearing a harness and was on a leash was attacked by a German Shepherd who broke loose from its tether.  The dogs fought and both were injured. The pit bull was determined to be a “dangerous dog” and its owner was ordered to pay a portion of the shepherd's veterinary bills even though it remained leashed throughout the incident.  The pit bull's owner appealed. The upper court noted that the law defines a dangerous dogs as a dog that “without justification” attacks a person, companion animal … or domestic animal … and causes physical injury or death.”  A dog shall not be declared to be dangerous if its conduct “was justified because the dog was responding to pain or injury, or was protecting itself [or] its owner…” The Supreme Court stated "The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal.’”  The case is titled  The People of the State of New York v. Diana Shanks.   Glickman Turley LLP can help you protect your dog from breed discrimination. Call us for a consultation: 617-399-7770.