Animal Tort Law
Dog Bites
Pet Store Liability
In PetSmart, Inc. v. Eighth Judicial District Court, the Nevada Supreme Court reviewed an issue of first impression—whether a pet store can be held liable for injuries caused by a dog adopted from a pet rescue holding an adoption event in the pet store.
As part of its efforts to help homeless pets, PetSmart partners with independent animal organizations (“rescues”) to hold adoption events at PetSmart stores. Prior to signing an agreement with a rescue, PetSmart reviews the rescue’s status as a charitable organization, confirms it has liability insurance, conducts site visits, and reviews the rescue’s website. If approved, the rescue is provided with a manual outlining PetSmart policies and procedures for cleaning and volunteer dress. The manual does not impose requirements on the adoption program itself. PetSmart’s agreement with the rescue is clear that the rescue is limited to designated areas, is “fully responsible” for its animals, and must follow its own policies and procedures and make the final decisions on adoptions. The agreement also clarifies the rescue is independent from PetSmart and wholly responsible for itself. However, adopters of the rescue’s animals must sign a PetSmart adoption release form, and PetSmart is notified of all adoptions. PetSmart pays the rescue for each adoption. Any animal returned to the rescue can be adopted out again at an adoption event at PetSmart, and the rescue can receive an additional PetSmart payment. PetSmart does not keep track of which animals have had subsequent adoptions.
The case involved a dog that had been previously adopted out by two different rescues and had been returned by adopters on four different occasions for aggression. The last three adoptions of the dog occurred at events held at PetSmart. The rescue described the dog to the adopter as “a gentle giant” and said that the dog had been returned previously due to a “nip” that resulted from teasing. The adopter signed PetSmart’s liability release form and received various PetSmart coupons and an adoption kit.
Two days later the dog attacked the adopter’s husband, causing severe damage. The adopter and husband sued PetSmart and both rescues for negligence, negligent infliction of emotional distress, and respondeat superior. PetSmart moved for summary judgment, arguing that it could not be held liable because it had no ownership or control of the dog. Relying on Wright v. Schum, a landlord liability case, the trial court denied summary judgment and found that PetSmart owed a duty to the adopters, which raised issues of material fact.
PetSmart appealed. Although noting that normally there is no duty to control or warn of another’s dangerous conduct, the appellate court stated there is a duty if the defendant assumes one, including in instances where a landlord assumes the duty to protect others from a tenant’s dog. Reviewing the decision in Wright, the court distinguished the case, pointing out that, there, the landlord knew about the dangerousness of the tenant’s dog and failed to remove the dog from the premises, despite promising to do so, resulting in two additional attacks. Here, by contrast, PetSmart had no knowledge of any aggression, did not agree to prevent further harm, was not involved in the adoption process, and had not watched for repeated adoptions of the dog. Further, the court indicated that the agreement with PetSmart placed sole control of the adoptions with the rescue, and any in-store requirements that PetSmart placed on the rescue were merely ordinary safety precautions, not an assumption of care for adopters once they left the premises. Finding no basis for liability without knowledge of a dangerous propensity, the court issued a writ of mandamus and ordered the lower court to grant summary judgment to PetSmart.
Boarding Placement Liability
In Daily v. Tang, a Connecticut trial court refused to impose dog bite liability on an online company that facilitated boarding arrangements between pet owners and pet sitters. In that case, a dog owner used the online services of the defendant, A Place for Rover, Inc., to place his dog with the plaintiff for boarding at her apartment. While there, the dog attacked the plaintiff, causing her significant injury. The plaintiff sued both the dog owner and A Place for Rover for damages. The plaintiff claimed that A Place for Rover was negligent because it failed to properly screen the dogs, including the dog that attacked her, for “dangerous, vicious and aggressive behavior”; failed to warn her and train her to deal with such behavior; failed to inquire into the insured status of the owner; and failed to warn her of the company’s screening and referral process.
A Place for Rover moved to strike the claim against it, arguing that it owed no duty to the plaintiff and therefore had no liability. In support, A Place for Rover asserted that it was not the dog’s owner, that it did not know of the dog’s alleged propensity, and that the attack occurred on the plaintiff’s own property. It also asserted that plaintiff had not claimed that the company had control over the dog. The plaintiff argued that control was not required to impose a duty on a “pet care company” because the injury was reasonably foreseeable.
To determine whether the defendant had a duty, the court reviewed the common law and the state’s dog bite statute. Under the common law, the court found that only those with control of the dog—owners and keepers—could be held liable. The same applied to the dog bite statute, which imposes strict liability for dog bites on owners and keepers. And even under premises liability, the court found, liability is not imposed on a landlord unless “the landlord knew of the danger posed by the dog and the attack occurs in an area of the premises over which the landlord maintains control.” Finding that the defendant’s role fell into none of these scenarios, the court granted the defendant’s motion to strike.
Governmental Immunity
In McKinley v. Gualtieri, a Florida appellate court reviewed whether sovereign immunity bars a claim against a sheriff for negligent handling of a police dog. In this case, the plaintiff was bitten by a police dog while attending an event at a baseball park. The plaintiff filed suit, but the trial court dismissed the complaint based on sovereign immunity.
On appeal, the court examined whether the Florida Tort Claims Act (FTCA) allowed a cause of action under either the state’s dog bite law or common law negligence. The FTCA allows actions against the government to recover tort damages “for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment.” However, the statute does not authorize the imposition of strict liability against the government. Because the state’s dog bite statute imposes strict liability, the court found, a person bitten by an agency-owned dog, like a police dog, cannot maintain an action against the government based on the statute.
The court did find, however, that a person can bring an action under common-law negligence based on the specific terms of the FTCA if a private person would be liable for negligence under the same circumstances. To determine whether the trial court’s dismissal of the complaint was proper, the court proceeded to review whether the defendant owed a duty to the plaintiff. The issue of concern for the parties was plaintiff’s entry into the “zone of risk,” i.e., the danger zone around the dog. The plaintiff asserted that the defendant created a foreseeable zone of risk because the deputy was standing too close to the bystanders with his dog. The defendant argued that the deputy was not moving, so the plaintiff placed himself in the zone of risk by walking too close to the dog. The court sided with the plaintiff, saying that if the sheriff’s view applied, “a deputy could wander through a crowd (or stand still) with a K-9 while the K-9 attacks every person who passes by, and the Sheriff’s Department would be immune from tort liability.”
The defendant’s final argument was that no duty of care existed because the action was a discretionary governmental function under Trianon Park Condominium Ass’n v. City of Hialeah. The defendant argued, because the allegation related to law enforcement and public safety, which was a general duty to the public, the plaintiff was required to plead “a special duty of care,” which he did not. The court stated that the defendant misconstrued the case, confusing actions with no underlying common law duty—here, exercising a “discretionary police power function”—with actions that have always had a common law duty, like safely operating firearms or motor vehicles. Finding police dogs comparable to firearms and motor vehicles, the court concluded that officials have a duty of care when bystanders are within the foreseeable zone of risk. Therefore, the court concluded, even though the decision to patrol the ballpark with police dogs might have been discretionary, the act of doing so was operational and not protected by sovereign immunity.
Sovereign immunity was also at issue in Callaway v. Akron Police Department. In this case, an officer and police dog were in pursuit of an offender who was running on foot through an apartment building. The plaintiff (who was not the offender) lived in an apartment in the building. Although it is undisputed that the plaintiff was bitten by the police dog, the facts as to how she was bitten are in dispute. The police officer asserted by affidavit that the offender had entered the plaintiff’s apartment, refused to come out, and ignored warnings that the dog would be released. When released, the dog entered the apartment and bit the plaintiff. The plaintiff stated in her affidavit that the offender had not entered her apartment, but had run past it and that she had been in her living room when the dog entered without warning and bit her.
The plaintiff sued the police department, the city, and the officer, both individually and in his capacity as an employee, arguing liability under the state dog bite statute. The defendants moved for summary judgment, which the trial court awarded, finding that the police department could not be sued separately from the city and that both the city and the officer were immune from suit. The plaintiff appealed, but only as to the liability of the city and the individual officer.
To determine whether sovereign immunity applied to the city, the court looked to section 2744.02 of the Ohio Revised Code, which sets up a three-pronged analysis. The court first looks to see if the city or its employee caused the damages by an “act or omission ‘in connection with a governmental or proprietary function.’” If it did, the court then determines whether one of the five statutory exceptions applies. If the act or omission falls under an exception, the court then looks to see if a defense exists.
Turning to the case at hand, the court indicated that it was clear that the city was entitled to immunity under the first prong because operating a police department and using a police dog are governmental functions. The court then reviewed the exception asserted by the plaintiff, which would impose civil liability if a statute expressly imposed liability on a political subdivision. Although the defendant argued that the city was a “keeper” of the dog under the dog bite statute, the court determined that the statute was not one that expressly imposed liability on the city; instead, it was merely a general liability statute. Therefore, since the exception under the second prong did not apply, there was no need to determine whether there was an applicable defense under the third prong.
The court then turned to the liability of the officer. The plaintiff first argued that the officer was liable because the dog bite statute expressly imposed liability on the officer. The court disagreed based on its prior determination that the dog bite statute imposed general, not express, liability. Although the court acknowledged that its decision was in direct contrast to the decision of another Ohio appellate court, which found a deputy sheriff liable as a “keeper” under the dog bite statute, the court declined to follow it because its determination of general liability meant the statute was inapplicable. The court did agree, however, with the plaintiff’s second argument, that a fact issue existed as to whether the officer was liable under an exception from immunity for wanton and reckless conduct. Based on this finding, the court reversed the trial court’s judgment as to the officer, but affirmed summary judgment as to the city.
Veterinarian Malpractice
In Perelman v. Meade, the court reviewed a veterinarian’s liability to a person who adopted from an animal shelter that had contracted with the veterinarian to provide services. In this case, an animal shelter rescued a dog, which was then adopted. As a condition of adoption, the shelter contracted with and paid the defendant, an animal hospital, to spay the dog. After the procedure, the adopter took the dog home from the hospital.
Three months later, the adopter returned the dog to the shelter. The dog was then adopted by the plaintiff. The adoption papers indicated the dog was spayed, but shortly after adoption, the dog exhibited signs of being in heat. The plaintiff took the dog to her own veterinarian, who indicated that the animal shelter’s spaying procedure may have left an ovarian remnant. The veterinarian advised the plaintiff to wait to see if the dog came into season again. Nine months later, the dog did, so the plaintiff returned to her veterinarian who performed exploratory surgery and found that half of the dog’s reproductive tract had been left in the dog. The veterinarian removed the remnants but found that the dog also had an abnormal kidney, which was then removed by a recommended veterinary specialist. Both veterinarians stated that the original spay procedure fell below the standard of care for any veterinarian.
The plaintiff sued the animal hospital that performed the original spay procedure based on negligence, seeking the costs associated with the subsequent surgeries on the dog. The two veterinarians who may have performed the original procedure at the animal hospital were added to the suit, but the trial court granted them summary judgment. The plaintiff appealed.
The issue before the appellate court was whether the veterinarians owed a duty to the plaintiff. The court held they did not, explaining that duty requires a “‘relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.’” Here, the court explained, the relationship was between the animal hospital and the animal shelter, which not only owned the animal at the time of the procedure but had contracted with the hospital. Lacking any relationship with the plaintiff, the defendants owed no duty to the plaintiff as a matter of law. Further, the plaintiff’s arguments that she was a third-party beneficiary of the contract and a foreseeably vested third party were waived because they were not asserted until appeal. Therefore, the court upheld the summary judgment.
Bystander Emotional Distress
Two Connecticut trial courts reviewed claims for bystander emotional distress in connection with the death of a pet to determine whether such a claim was viable. The decisions represent a continuing split in the Connecticut district courts, with some holding that a defendant might be liable for a bystander’s emotional distress over the loss of a pet, and others finding such claims clearly prohibited by current case law.
The court in the first case at issue, Field v. Astro Logistics, LLC, allowed a bystander claim to go forward. Field involved an incident where the defendant’s employee struck the plaintiffs’ dog while driving a motor vehicle. The plaintiffs’ family saw the animal get hit and was with the dog before the dog received care. Plaintiffs sued for both negligent infliction of emotional distress and for bystander emotional distress. Defendant sought to strike the claims as legally insufficient and non-compensable under Connecticut law. The court quickly dismissed the negligent infliction claim, explaining that Connecticut law was clear that such claims were not viable under Myers v. Hartford, which held that noneconomic and emotional distress damages were not available for injury or death to a pet.
However, the court did not dismiss the bystander emotional distress claim, asserting that Myers should not be read as foreclosing such a claim. The court first distinguished the facts in Myers, noting that the case involved only negligent and intentional infliction of emotional distress claims and not a bystander claim because the plaintiff had not witnessed the pet’s death. The Myers court had also chosen not to extend the negligent infliction cause of action to pets because it had not even been extended to close human relationships unless the person had witnessed the injury. The court in Field then noted Myers’ acknowledgement of the special relationship between people and their pets. The Myers court stated:
Labeling a pet as property fails to describe the emotional value human beings place on the companionship that they enjoy with such an animal. Although dogs are considered property [under Connecticut law,] this term inadequately and inaccurately describes the relationship between an individual and his or her pet.
The problem for the Field court, though, was that the first element of the cause of action for bystander emotional distress was that the party alleging the claim must be in a close relationship with the victim, such as a parent or sibling. The court noted that in Clohessy v. Bachelor, which established the factors for bystander liability, the Connecticut Supreme Court refused to define which relationships would be included, instead stating that it “should be limited to those who because of their relationship suffer the greatest emotional distress.” Looking to factors that courts have used to determine what constitutes a close relationship, the court noted the focus has been on relationships that are “‘stable, enduring, substantial, and morally supportive[,] . . . cemented by strong emotional bonds and provid[ing] a deep and pervasive emotional security.’” Absent an appellate directive otherwise, the court stated, it would not limit application of the bystander claim because the relationship to a pet might be sufficient.
The second case, which constitutes the most recent pronouncement on the issue, comes to the opposite conclusion. In Brisson v. These Guys New York Deli Corp., one of the plaintiffs witnessed the defendant run over and kill the family dog. Another plaintiff did not witness the death but arrived immediately thereafter and partially saw the dismembered remains. Plaintiffs sued for emotional distress damages based on negligence, bystander emotional distress, and recklessness. Citing Myers, the court in Brisson rejected any form of noneconomic damages for intentional or negligent infliction of emotional distress based on the status of pets as property. With regard to bystander emotional distress, the court referred to the conflict arising from the language in Myers, but disagreed with the Field line of cases. Instead, the Brisson court found there could be no liability for bystander emotional distress because pets could not be considered “closely related” to the bystander. Citing the factors that the Field court noted for determining which relationships qualified as close, the court focused on language suggesting that the victim must be human, such as the reference to parent or sibling in Clohessy and to the “injured person” in various district court opinions. The court further stated that it was outside the scope of its authority to create a new cause of action for noneconomic damages, despite plaintiff’s assertion that Illinois and Tennessee had already done so. The court concluded, “‘[a] trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.’” As such, the court struck the claims for bystander emotional distress.
Rescue Doctrine
In Samolyk v. Berthe, the New Jersey Supreme Court reviewed the issue of whether to expand the common law rescue doctrine to the rescue of a dog. Under the rescue doctrine, a defendant is liable for harm caused not only to a victim whose life is imperiled by the defendant’s wrongdoing, but also for the harm caused to the victim’s rescuer.
In this case, the defendants’ dog fell into a canal near their home. Responding to the defendants’ calls for someone to rescue their dog, the plaintiff jumped in. Although the dog was removed safely by the neighbors’ son and friend, the plaintiff was found unconscious on a dock, allegedly suffering from neurological and cognitive injuries resulting from her attempted rescue. Responding to briefing on whether the plaintiff had raised a cognizable claim, the trial judge stated that “he was not empowered ‘to start defining what level of property is worth risking a human life.’” On appeal, the intermediate appellate court considered Restatement (Second) of Torts § 472 and other state case law that extended the rescue doctrine to the rescue of property. Although finding the argument persuasive and questioning why the doctrine is limited to the rescue of humans, the court nevertheless refused to expand the doctrine in recognition of its role as an appellate court.
Plaintiff then appealed to the New Jersey Supreme Court, turning again to Restatement § 472 and the case law of other states as the reason to extend the rescue doctrine. After reviewing the development of the doctrine in New Jersey, the court agreed that the doctrine had never been expanded beyond the rescue of humans and was unpersuaded to do so here. The court stated:
[W]e decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life.
However, the court did state that the rescue doctrine would apply in a situation where a rescuer took a preemptive act that saved property in the mistaken belief that it would save a person (as, for example, if a rescuer tried to lessen the impact of a fire thinking people were inside the building but later finding they were not). Thus, in this case, had the rescuer tried to rescue the dog after seeing a young child rushing toward the edge of the dock to get to the dog, then the rescuer’s claim might have been actionable. However, since that was not the case here, the court stated there was no claim.
Ownership
In Roark v. Fuselier Veterinary Services, a Louisiana appellate court reviewed an ownership dispute between a dog owner and a rescue. In this case, the dog, which was indisputably owned by the plaintiff for seven years and was microchipped, escaped from the plaintiff’s backyard when a falling tree knocked down the plaintiff’s fence. Five weeks later, the dog was picked up and taken to an animal shelter, and five days after that, the dog turned up in a private veterinary clinic located 50 miles away in another parish.
The defendant was a non-profit dog rescue based in Virginia working with the veterinary clinic. Almost a month after the dog was first picked up, the defendant asked the clinic to scan the dog for a microchip in accordance with the rescue’s policy. The defendant then contacted the plaintiff, indicating that the dog was alive, but not offering to return the dog. The plaintiff sued, seeking return of the dog. The parties agreed that the rescue would transfer neither ownership nor possession without leave of court. However, seven months later, when the dog had still not been returned to the plaintiff, the plaintiff moved for summary judgment. The motion was granted, and the plaintiff was deemed the dog’s owner. The defendant appealed, seeking ownership of the dog and expenses for the dog’s care.
The appellate court affirmed the trial court’s order. The court’s analysis began with a review of two statutory provisions. First, under Article 526 of the Louisiana Civil Code, “[t]he owner of a thing is entitled to recover it from anyone who possesses or detains it without right.” Second, under the state’s Revised Statutes, dogs are considered personal property. The defendant argued that the plaintiff lost title to the dog under the local ordinance, because the dog had no collar and the plaintiff failed to collect the dog within five days of delivery to the shelter. The problem for the court, though, was the language of the ordinance, which allowed adoption or euthanasia after five days for “a dog that cannot be identified, including a dog that wears no collar.” Although the dog at issue here had no collar, explained the court, the owner was not unidentifiable because of the microchip.
Yet the court did not rest its conclusion on that analysis, despite it using those facts to question why the dog had not yet been returned by the rescue. Instead, the court focused on the ordinance, which it described as a “criminal misdemeanor ordinance.” The court noted that its language did not explicitly place ownership of the dog in the shelter, the clinic, the rescue, or even the good Samaritan that took the dog to the shelter in the first place. Because the dog had neither been returned home nor euthanized, the court considered the dog to still be property of the owner. As such, under Louisiana law, the dog’s ownership could not be transferred by anyone other than the owner.
The court also reviewed each party’s request for damages, which the trial court had not addressed. The rescue sought reimbursement of reasonable expenses incurred prior to the dog’s return to the plaintiff. The plaintiff sought damages for loss of enjoyment of life and property and emotional distress caused by the rescue’s actions. In discussing both instances, the court viewed the rescue’s actions unfavorably. Regarding the rescue’s request, the court indicated that not only should the reasonableness of the rescue’s costs be taken into account, but specific scrutiny should be given to those costs incurred after the plaintiff offered veterinary records to show his care for the dog. With regard to the plaintiff’s claims, the court noted especially the rescue’s board minutes that not only indicated a split board vote on whether to return the dog to the plaintiff at all (a majority voted not to return the dog), but also showed that the board had considered whether it should even review the plaintiff’s vet records. The court ordered the trial court to consider to what extent the rescue’s failure to return the dog after learning of the plaintiff’s ownership caused the plaintiff damages.
Equine-Related Injury
Claims Limited by Equine Activity Liability Acts
In Roby v. Churchill Downs, Inc., the Kentucky Court of Appeals held that Kentucky’s equine activity liability act (EALA), called the Farm Animals Activity Act (FAAA), did not preclude negligence claims by a person bitten by a horse because the FAAA, though generally limiting the liability of farm animal activity sponsors, expressly exempts injuries resulting from horse racing activities. In this case, Roby was the guest of a horse owner on Kentucky Derby Day and was walking in the stable area along the backside of the track when a horse bit her on the breast and seriously injured her. She sued, but the trial court granted summary judgment in favor of the defendants. On appeal, the Kentucky Court of Appeals concluded that the exemption to the FAAA for horse racing activities applied and therefore Roby’s claims were not statutorily barred and could proceed. The FAAA exemption broadly defines “horse racing activities” as “the conduct of horse racing activities within the confines of any horse racing facility licensed and regulated by [statute], but shall not include harness racing at county fairs.”
Here, racing was taking place, and the bite was from a horse on premises for the express purpose of escorting racehorses to and from the track for races. To the appellate court, if this was not “the conduct of a horse racing activity,” the exception allowing these claims to proceed would be narrowed to a point of uselessness. Likewise, the general statutory immunity to liability for the “stabling of horses” did not apply here because if it did, then the exemption to limited liability for horseracing would be rendered meaningless; instead, the exemption negates statutory immunity for activities that are otherwise immunized under the FAAA.
Turning to the question of whether a duty of care existed, the appellate court ruled that the racetrack and the trainer both owed Roby a duty of reasonable care under common law premises liability principles because they invited or ratified her presence on the premises, and she was injured during an activity on premises. Thus, Roby’s claims could proceed.
In Dennin v. Post, another case involving equine-caused injury, the plaintiff was taking a riding lesson when a panel of plywood fell to the ground and spooked her horse, which in turn threw her to the ground. She sued her riding instructor, the instructor’s landlord, and the property owner, but they pointed to New Jersey’s EALA, the Equine Activities Act (EAA), as granting them immunity from suit.
In evaluating the motion to dismiss, the federal district court first looked to the purpose and scope of the EAA, which is to limit claims for risks that cannot be effectively eliminated, and to preclude recovery for injuries from those risks. Consistent with most EALAs, the EAA identifies inherent risks such as, among other things, the propensity of a horse to behave in ways that result in injury and the unpredictability of a horse’s reactions to sounds, sudden movements, and unfamiliar people or things. The EAA goes on to say that participants assume these risks, and assumption of risk is a complete defense and bar to suit.
Importantly, however, there are exceptions to these broad protections for facility operators, and the court concluded that one of these exceptions could apply in this case on the facts pleaded. That exception is for acts or omissions that constitute negligent disregard for a participant’s safety that then cause injury. The facts of this case fell in between two hypotheticals with clear opposite outcomes: on the one hand, negligent failure to repair a stall door is actionable under the statute, while on the other hand, injury from a horse that spooked at a loud noise and ran into a stall door is not actionable. Here, the plaintiff alleged that the loud noise resulting in otherwise non-actionable horse behavior was caused by otherwise actionable negligence. Thus, the plaintiff’s complaint plausibly alleged an exception to the statutory protections against liability, and survived the motion to dismiss.
Negligence
In Nasserziayee v. Ruggles, which involved a horseback riding injury, the federal district court denied a second summary judgment motion on remaining gross negligence claims after previously dismissing the negligence claims due to a liability release. In this case, a minor child was injured in a fall from her horse on a Utah trail ride. Relevantly, the liability release her parents signed included extensive language regarding recommended helmet-wearing, and an agreement that the trail ride operator had offered a helmet.
The court’s prior ruling allowed the gross negligence claim to proceed in light of evidence that helmets were not provided and that the trail guide encouraged the horses to go faster even though the riders were inexperienced.
In this new summary judgment motion, the trial court concluded that the plaintiff had put forth sufficient evidence to create a genuine issue of material fact to allow trial on the gross negligence claim regarding helmets and regarding urging participants to ride faster. On the question of helmets, although the plaintiffs’ evidence was thin in the face of significant contrary evidence that helmets were provided, the court reasoned that this did not eliminate the factual dispute because a reasonable inference still could be drawn that no helmets were provided. The fact that the signed liability release stated that helmets were offered did not resolve whether they were, in fact, offered. As to whether riders were encouraged to go faster, the plaintiffs offered a witness who would testify that the guide instructed riders to “quicken the pace,” after which the guide left the minor child and returned to find her fallen and injured. One could reasonably infer from this evidence that the guide’s statement was the but-for cause of injury.
The court rejected the defense’s argument that the plaintiffs’ contractual assumption of the risk barred the gross negligence claim because the liability release’s assumption-of-risk language was limited to only risks inherent to horseback riding, and the alleged negligence here was not inherent to horseback riding. Likewise, implied non-contractual assumption of risk did not bar the claims because there was evidence that the injury was caused by the gross negligence of the trail operator and not by risks inherent to the activity.
Although the court allowed the gross negligence claims to proceed to trial, it granted judgment on the claim of intentional infliction of emotional distress because no reasonable factfinder could find that the alleged misconduct rose to the level of outrage required under Utah law to sustain the claim, given that not even malicious or illegal conduct that might warrant punitive damages is enough to meet that standard.
In short, evidence that seemingly barely created disputed issues of fact circumvented both a liability release and statutory immunity, allowing the plaintiff a path to potential recovery.
In the Kansas case of Taylor v. Wachter, an injured plaintiff’s extensive experience with horses and her status as an independent contractor foreclosed her premises liability claims. Taylor was an employee of small animal veterinarian Dr. Hough, but at the time of her injury, she was not acting in the course of her employment. Instead, she and her husband were helping Dr. Hough on Dr. Hough’s personal property with vaccinating and deworming Dr. Hough’s personal horses. Taylor and her husband developed the plan for vaccinating and deworming a group of horses that all three knew had had little human contact and were more nervous than usual. The plan involved a method her husband had used many times before: loading four horses into a horse trailer, Taylor’s husband restraining each horse’s head with a halter and lead rope, and Taylor administering the injections and dewormer while standing outside of the trailer on its running boards/fenders. However, one of the horses reacted violently to the injection, and Taylor fell while trying to get off the fender, breaking her leg.
Taylor sued but lost on summary judgment, and the Kansas Court of Appeals affirmed. The first claim of negligent failure to warn of a dangerous condition on the property was foreclosed in light of Taylor’s extensive prior experience with horses, the lack of any defect in the trailer, and the fact that she knew she was free to leave after learning of the dangers faced with this group of horses. The dangers were open and obvious, and Taylor had personal prior experience with such dangers.
Taylor’s second claim of failure to provide adequate facilities for vaccinating and deworming the horses likewise failed. Taylor was an independent contractor to Dr. Hough and thus was owed no such duty of care. Further, it was Taylor’s husband and not Dr. Hough who devised the method for completing the work (which likely increased the risk of injury), Taylor was not there in her capacity as an employee, and she knew she was free to leave. Even so, Taylor did not allege that any of the claimed defects on the property actually contributed to her fall. Property defects such as poor fencing and gates may have contributed to the decision to use the horse trailer, but the trailer’s condition did not pose a hazard.
Liability Waivers
In the unpublished Vermont Supreme Court case Lenter v. Clover Acres Livestock Veterinary Services, LLC, an experienced endurance trail ride competitor unsuccessfully sued an event sponsor and the veterinarian who was treating her horse. The horse had experienced a seizure during veterinary treatment and rolled onto the competitor’s leg, breaking it. Before the competition, the competitor had signed a liability release that broadly released the event sponsor and anyone assisting with the ride from all liability associated with the competitor’s participation in the ride. To get around this liability release, the competitor argued that her injury was the result of veterinary negligence that was not an inherent part of competitive trail and endurance riding.
As the trial court and the appellate court both agreed, (1) the release form was sufficiently specific to include the claims at issue; (2) it was not limited to actual riding but instead included all claims for injury “arising out of or in connection with [the competitor’s] participation in this event”; and (3) the veterinarian certainly was within the group of people “assisting or connected with the ride” even if not specifically referenced by job title, particularly given frequent veterinary checks integral to these kinds of competitions. It was irrelevant that the veterinarian charged for her services. Moreover, even though the release did not identify “negligence” by name in the release language, the language was sufficiently specific to demonstrate intent to waive negligence claims when it referred to “any and all rights, claims, or liability for damages” and “any and all injury to [the competitor or the competitor’s] property or those arising out of or in connection with [the competitor’s] participation in this event” and further included “from any cause whatsoever.” In short, the experienced competitive rider could not avoid the liability release that barred her suit.
Animal Insurance Law
Horse vs. Automobile Personal Injury
In the New York case of Saddlemire v. Hunsdon, a nighttime escape by horses from their boarding facility resulted in a collision with motorcyclists. After the motorcyclists sued the horse farm operators, the operators attempted to pass liability on to the horses’ owners by adding them as third-party defendants. The trial court rejected this effort, granting summary judgment, and the appellate court affirmed. As the appellate court explained, under New York law, the fact that a horse wandered unattended on a road and caused damage to a person or vehicle creates only a rebuttable presumption that a horse owner was negligent. Liability can be imposed against a person only when their conduct contributed to the injury.
Here, the horse owners did retain care, custody, and control of their horses on the property and performed various chores on the property in exchange for rent, including occasionally helping with fence repair and inspection. Nevertheless, this exchange of rent for services did not create a duty or a contractual obligation on the part of the horse owners to repair or maintain the property. Instead, the farm operators retained control of the premises and historically assumed the responsibility for property repair. Even if the horse owners had such a duty, they were merely present on the farm the day of the accident, and the property owner did not submit anything beyond speculation to satisfy the court that there was disputed evidence of fact demonstrating negligence. Thus, the horse owners were dismissed from the case, leaving the farm operators to defend against the plaintiff’s negligence claims.
Equine Mortality Insurance Policy
Greenbank v. Great American Assurance Co. is a case previously reviewed in these pages but which has likely reached the end of its life with this Seventh Circuit decision affirming summary judgment in favor of the equine mortality insurance company, which treated the insured horse back to health rather than euthanizing it as the owner said should have happened. Thomas was a $500,000 show horse that, months after Greenbank purchased him, became very ill. Eventually, the insurance company, per its right under the policy, assumed possession of the horse and moved it to a veterinarian of the company’s choice. Thomas was diagnosed with a deep lung abscess and life-threatening laminitis in his feet. Ultimately, although two veterinarians stated that euthanasia was up for discussion, the then-treating veterinarian recommended less drastic treatment first, which, if successful, would mean that euthanasia was not necessary but that the horse’s show career was over. Performed over Greenbank’s objection, the treatments were successful, and the horse returned to health, though not to the level of soundness required for shows. Greenbank sued over the refusal to euthanize (and pay out under the mortality coverage for the horse’s $500,000 purchase price), among other things.
At its core, this case highlights the critical difference between a mortality insurance policy and a loss of use insurance policy. As the Seventh Circuit explained, there was no covered cause of loss here because the horse did not die and there was no “authorized humane destruction,” which required the insurer’s consent or a veterinarian’s opinion that immediate destruction was imperative for humane reasons. Nor was there any unreasonable withholding of insurer consent to euthanize because there was no evidence that it was necessary or that the insurer was required to authorize it.
The Seventh Circuit plainly explained that Greenbank’s concern for the horse’s loss of use as a show horse was not a contractually supported basis for euthanasia under the policy. Indeed, there is a separate insurance policy—a loss of use policy—for this specific purpose that Greenbank could have purchased and which would have protected her against the loss of use (and value) of a horse that does not die or otherwise require euthanasia.
Duty to Defend Under Special Event Policy
In a Wyoming insurance coverage case involving a horse wagon accident at a rodeo, Sheehan v. T.H.E. Insurance Co., the federal district court ruled that the rodeo’s insurer had no duty to defend the wagon driver and owner under the rodeo’s coverage for volunteers or its special events endorsement. In a prior case, passengers in the wagon sued its driver and owner after they were injured when the wagon overturned during the rodeo. The excess insurer for the wagon driver and owner provided a defense in that lawsuit. In this case, the excess insurer sought to recoup its defense costs from the rodeo’s insurer, which had denied coverage for the underlying suit.
The core question was whether the wagon driver and owner were insureds either as volunteers or under the special event endorsement. The district court answered in the negative. As for whether they were entitled to coverage as volunteers, the facts prevented coverage under the express terms of the policy because (1) the injured parties—members of the rodeo’s board—were also volunteers; and (2) the wagon driver and owner received compensation for their work in the form of valuable advertising.
Under the special events endorsement, coverage was available to those providing an animal to the rodeo for its use in the event, but only to the extent that the rodeo itself was negligent. Here, the underlying incident did not arise from the rodeo’s negligence. The excess insurer for the driver and wagon strained the facts to imply negligence on the part of the rodeo, and the court did not buy it. The excess insurer argued that a day prior to the accident, one rodeo board member, who was also a passenger, confronted the driver and told him to slow down. From this fact, the excess insurer argued that other board members should have observed the dangerous operation of the wagon and were negligent in nevertheless choosing to ride, and that this negligence is imputed to the rodeo. This was not enough to establish even a possibility that the rodeo had a duty or breached it as to its individual board members, even if it was factually possible to say that a board member may have been negligent. There was no factual or legal basis to argue that a single member’s negligence could be imputed to the rodeo, or that it caused the incident. The rodeo’s insurer thus was not obligated to reimburse the excess carrier for defense costs.
Dog Bites and Attacks
In Santiago v. Costanzo, a homeowner’s insurance policy excluded coverage for injuries caused by a dog that had previously injured its owner. The dog had bitten its owner three years before the incident at issue in this case while they were “wrestling,” and the incident was investigated by the local county board of health. In the incident at issue in this case, a friend of the owner was looking after the dog and invited the plaintiff over to the home, and the dog attacked the plaintiff, causing severe injury. The dog owner sought coverage under his homeowner’s insurance policy, but the insurer denied the claim, citing the policy exclusion for dogs that had a prior history of causing bodily injury as established through the records of a local regulatory body.
Affirming the trial court’s ruling, the court of appeals rejected arguments that the coverage exclusion was ambiguous and that there should be coverage here because the person previously injured was the dog owner/insured. As the court explained, a “person” by its plain meaning includes any person injured by the dog, including the insured. The court of appeals also rejected the contention that the exclusion did not apply because the dog owner was the “cause” of his own injury in the earlier incident when he was roughhousing with his dog. The owner conceded that the dog’s teeth were the mechanism of his injury, and under the plain meaning of “cause,” this is “cause,” regardless of efforts to superimpose into the policy notions of degree of fault or the extent to which the owner’s conduct contributed to his prior injury.
In the unpublished Kentucky case of Jones v. Nationwide General Insurance Co., a minor child was visiting the dog owner’s home to play with children living there when the dog bit him. The homeowner’s insurance policy contained an exclusion of coverage for bodily injury caused by certain breeds of dogs, including certain pit bull breeds—which included the dog in this case—that are “owned by or in the care, custody, or control of an insured.” At issue here was whether the homeowner actually owned or had care, custody, or control of the dog, such that the exclusion applied and precluded insurance coverage. The trial court found on the evidence that he did, and, on appeal, he contended that evidence was insufficient to support the trial court’s findings.
The appellate court rejected this argument because the evidence was not only sufficient, it was substantial. Although the homeowner did not sign the dog’s adoption papers, he and his partner both spoke to the insurer’s investigator in terms of joint ownership and joint responsibility for the dog’s care, and the homeowner himself was listed as the contact person in the dog’s veterinary records. Immediately post incident, the records overwhelmingly reflected the homeowner asserting and taking responsibility for the dog. These assertions only appeared to change when insurance coverage became an issue. On the record, the appellate court easily found that the homeowner was an “owner” as defined in Kentucky’s strict liability statute for vicious dogs, but even if he was not, there was no question the dog was in his “care, custody, or control.” As such, coverage was excluded, and the insurer had no duty to provide coverage for medical payments or liability.
Poitra v. Short, a Minnesota case, involved exclusion of coverage for the homeowner’s two-year-old grandchild severely injured by the homeowner’s dog, an Alaskan Malamute. There was no question that the homeowner’s insurance excluded coverage for injuries to the grandchild as a resident relative of the insured. Rather, the child’s parents argued that the resident relative exclusion was void against public policy because the Minnesota Supreme Court previously abolished the common law immunity for intrafamilial torts, and that allowing the insurance resident-relative exclusion to persist would circumvent the policy behind abolishing the common law immunity. The state supreme court rejected this argument, explaining that “abolishing judicially created immunities is fundamentally different than requiring insurers to provide coverage for resident-relatives that their insureds injure.” “In the former, we are eliminating common-law hurdles of our own creation. In the latter, we would be stepping into contracts between two parties and invalidating otherwise agreed-upon exclusions.” The court left it to the legislature to balance the competing public interests.
Property Damage from Animals
In the federal case of Auto-Owners Insurance Co. v. Bank, bats colonized a South Carolina homeowner’s attic and produced copious amounts of guano, damaging the home. The homeowner’s insurer denied his claim on the basis that the bat guano was a “pollutant” and subject to the pollution exclusion under the policy, citing a court decision from another state. The policy at issue excluded “pollutants,” the contract definition of which included “waste.” The parties disagreed whether “waste” included animal waste, with the homeowner arguing that the pollution exclusion was intended to exclude only industrial pollution and did not unambiguously exclude animal waste.
The federal trial court agreed with the homeowner that the policy was ambiguous and thus construed the provision in favor of coverage. While a common-sense understanding of waste includes animal excrement, the court found that, when the entirety of the insuring agreement was read in context, this might not have been the intended definition. The policy’s list of examples of pollutants indicated an intention to describe and include environmental harm from manufacturing or industrial pollution. Additionally, the policy as a whole was structured to have separate provisions addressing exclusions related to animals (neither of which included bats), raising doubt that the pollution exclusion provision was meant to cover animal waste. As a result, the insurer failed to meet its burden of showing that the policy unambiguously excluded bat guano from coverage, resulting in the ambiguity being resolved in favor of coverage.
The homeowner’s corresponding bad faith claim for unreasonable denial of coverage survived summary judgment because evidence was presented that, in initially denying the claim, the insurer cited a “supreme court case” without specifying or acknowledging that the precedent was from a different state, and the insurer failed to acknowledge the existence of contrary precedent until the homeowner filed the lawsuit.
