This survey includes a review of cases involving animal tort and insurance law. Four dog bite cases are included in the review. Landlord liability was considered in one case, with the court refusing to adopt the Restatement approach, which would impose on landlords liability for off-premises injuries. Two cases explored the scope of liability under state dog bite statutes. In one, the court held that a state law enforcement agency had not waived sovereign immunity to a suit under the statute. The second held that the state’s dog bite statute did not apply to an animal shelter. The final dog bite case involved a lawsuit over an attack by a fake service dog against the doctor who provided the letter establishing the need for the dog. The court held that the plaintiffs’ claims were not health care liability claims requiring submission of expert reports to the defendant, thereby allowing the case to proceed.
Two emotional distress cases were also reviewed with neither court allowing the claim. In the first, the court held that emotional distress damages were not available for the death of a pet, even when the plaintiff has suffered minor physical injuries. In the second, the court refused to allow a negligent infliction of emotional distress claim even though the pet was the plaintiff’s emotional support animal. In addition, in that same case, the court held that the corporate negligence doctrine did not apply to animal hospitals. A veterinarian’s liability for wrongfully securing the plaintiff’s permission for a painful procedure used to euthanize a cat was considered in another case, with the court holding that the plaintiff had stated valid claims for fraud, misrepresentation, conversion, trespass to chattels, and intentional infliction of emotional distress.
Damages were also at issue in this survey period, with two courts reviewing issues of first impression. In one, the court held that reasonable veterinary costs are recoverable even if they exceed the reduction in the dog’s fair market value. In the second, the court held that a state provision that allows recovery of exemplary damages for wrongful injuries to animals did not itself create a cause of action, but allowed recovery of those damages based on other claims.
This survey also includes several cases relating to ownership of animals. One court rejected an animal shelter’s claim that expiration of the shelter’s hold period cut off an owner’s title to the impounded animal where the dog had been impounded solely because the dog was with the owner when she was arrested and jailed for a traffic offense. In two divorce cases, the courts applied New York’s newish “best interests” standard, and, in two replevin cases, the courts applied New York’s older “best for all concerned” standard to resolve contested claims of ownership.
The scope of California’s Hayden Act was considered in another case, with the court holding that the law imposes a mandatory obligation on an animal shelter to release animals scheduled for euthanasia to an adoption partner, but also finding that the animal shelter could place conditions on becoming an adoption partner with the shelter. And, in a case involving a private zoo, a court held that violations of state wildlife and animal cruelty laws and the Endangered Species Act could not support a claim for public nuisance.
Several horse cases span the topics of equine activity liability acts (EALAs), liability waivers, and common law negligence. In two cases involving limiting liability for injuries to participants in horse activities, a riding stable was protected from a riding student’s claims arising out of risks inherent in equine activities, while a tree services company could not hide behind its state’s EALA to avoid liability for injury to a person driving her carriage horse past its worksite. Three liability waiver cases demonstrate the enhanced protections that well-written waivers can provide beyond the protections of an EALA and that the degree to which enhanced protections are available vary from state to state. A fourth liability waiver case demonstrates the importance of a well-written waiver in states in which there is no EALA, because in that case the court (albeit a divided one) held that the liability waiver, though detailed, did not actually release the riding stable from liability for negligence. Two more horse cases address common law negligence, one affirming summary judgment against a plaintiff, and the other concluding that any claim of mishandling of a horse required the plaintiff to establish such negligence through expert testimony.
Four insurance cases are also surveyed. The first held that a horse-drawn buggy is not a motor vehicle that triggers the underinsured motorist coverage. The other three involve the question of animal exclusions under homeowners and CGL policies and whether there is a duty to defend and indemnify, all of them together demonstrating that every policy and animal exclusion provision has its own quirks, as do the facts of each case, such that it is a case-specific analysis each time.
In Aviles v. Barnhill, a Connecticut appellate court considered whether a landlord could be held liable for an off-premises injury caused by a tenant’s dog. In the case, the plaintiffs’ and the tenant’s premises had adjoining backyards. The tenant owned a dog that ran to the plaintiffs’ premises and attacked the plaintiffs, causing serious injury. The plaintiffs sued both the tenant and the landlord, with the claims against the landlord sounding in negligence. The landlord moved for summary judgment, claiming that the landlord owed no duty to the plaintiffs for premises liability because the attack occurred off-premises and the landlord was unaware of the dog or a dangerous condition. The plaintiffs opposed the motion, asserting that § 379A of the Restatement (Second) of Torts should apply, which would allow the court to imply knowledge “‘from all of the circumstances existing at the time of the lease,’” including whether the defendant became aware of the activities when the lease was renewed. The trial court initially denied the landlord’s motion for summary judgment, but vacated it upon reconsideration, stating that § 379A had not yet been adopted by Connecticut appellate courts nor did precedent support its application. Finding no common law liability for off-premises injuries, the motion for summary judgment was granted.
Plaintiffs appealed, arguing that the Connecticut Supreme Court recognized landlord liability for off-premises injuries in Giacolone v. Housing Authority and that, even though § 379A was not currently adopted by Connecticut courts, it should be “because it ‘strikes a reasonable balance between concerns over the expansion of landlord liability and the need to hold accountable those landlords who have knowledge of dangerous conditions on their property and who fail to act.’” The court of appeals disagreed, reviewing Connecticut case law and finding no extension of a landlord’s duty to land not under the landlord’s control. As for Giacolone, although the plaintiffs interpreted the case to mean “‘a property owner’s duty under premises liability . . . does not evaporate if that harm crosses the property’s boundary line[,]’” the court rejected that reading, finding that the plaintiffs not only misunderstood the location of the dog attack as being off premises in Giacolone, but also misinterpreted the holding. According to the court, Giacolone is clear that “it is the property lines, and the potential harms within them, that defines a landlord’s duty.” The court of appeals also refused to adopt § 379A because it was inconsistent with Connecticut case law, which consistently followed traditional premises liability principles, and it was constrained from departing from or modifying supreme court precedent.
In Berrier v. Minnesota State Patrol, a Minnesota appellate court determined that the state’s dog bite statute did not apply to state agencies because of sovereign immunity. In the case, the plaintiff was employed at a car dealership. While a state patrol car was being serviced at the dealership, a state police dog, without provocation, attacked the plaintiff, causing her serious injury. The plaintiff sued, claiming strict liability under Minnesota Statutes § 347.22 and negligence. The defendant, Minnesota State Patrol, moved to dismiss the § 347.22 claim, asserting sovereign immunity for strict liability claims. The trial court denied the motion, finding that § 347.22 itself waived the state’s sovereign immunity.
On appeal, the court of appeals reversed, finding no waiver of sovereign immunity under the statute. The court began its analysis by indicating that sovereign immunity did not apply to common law tort claims, but still existed for statutory claims unless expressly waived in the statute. It explained that a statute waives immunity if the state is either explicitly named in the statute or the statutory language is “‘so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.’” If the statute is ambiguous, immunity applies.
The court then turned to the language of the dog bite statute, which states in pertinent part:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable.
The trial court had interpreted “owner” to mean “‘all who own dogs,’” which it deemed encompassed the state because the Minnesota Supreme Court had already determined that the term “owner” could include municipalities as “bodies politic” in Hyatt v. Anoka Police Department. The court of appeals disagreed, stating that, under Nichols v. State, “merely using a broad term that could include the state is not a ‘plain, clear, and unmistakable’ sign that the legislature intended to subject the state to liability.” It was also unpersuaded by the lower court’s reliance on Hyatt, stating that Hyatt addressed municipal, not state, liability and did not consider immunity. Further, prior case law had already determined that the term “bodies politic” did not include the state, and the court in Hyatt did not contradict that. Finding no clear expression of a waiver of sovereign immunity, the court dismissed the strict liability claim but allowed the negligence claim to proceed.
In Riad v. Brandywine Valley SPCA, Inc., a Delaware lower court held, in an unpublished opinion, that the state’s strict liability dog bite statute does not apply to animal welfare organizations. In the case, the defendant animal shelter took in an abandoned dog that exhibited fearful and aggressive behavior. Shelter staff worked with the dog until the dog no longer barked or growled, could be leashed without issue, and interacted calmly with staff. The shelter adopted out the dog to a woman, but a few days later, the woman returned with the dog because the dog had been chasing her cats. While the dog was in the lobby, the plaintiff saw the dog and expressed an interest in adopting him. A shelter employee took the dog and the plaintiff to a play area where the plaintiff interacted with the dog without incident. The three returned to the lobby, the plaintiff briefly left, and upon return, reached down to pet the dog. The dog bit the plaintiff. The woman who initially adopted out the dog signed a Return Contract and the shelter retook custody of the dog.
The plaintiff sued the shelter, then moved for partial summary judgment based on the state’s dog bite statute, which provides that “[t]he owner of a dog is liable in damages for any injury, death, or loss to person or property that is caused by such dog . . . .” The court denied the motion, finding that the dog bite statute does not apply to animal welfare organizations like the shelter. In making this determination, the court focused on the intent of the statute, which it described as “to rein in irresponsible dog owners who were keeping vicious dogs as pets by eliminating the ‘one free bite rule.’” The court compared the case to Tilghman v. Delaware State University, which held that the dog bite statute does not apply to working police dogs that are not pets. Although recognizing the differences between this case and Tilghman, the court said the analysis was the same, boiling it down to three questions: “(1) is Defendant an irresponsible dog owner; (2) is Defendant keeping vicious dogs; and (3) are the aforementioned vicious dogs being kept as pets?” The court answered the first two questions in the negative, explaining that the shelter provides for the health and adoption of animals, follows written protocols regarding behavioral evaluations and, if necessary, euthanizes aggressive dogs. As to the last question, the court again found the answer to be no as the shelter’s purpose is to provide welfare before adoption as pets, not to keep the animals as pets. Further, the court deemed applying the dog bite statute to animal welfare organizations like the defendant would be against public policy because it would make the shelter’s work “essentially impossible.” Finding the statute inapplicable to the defendant, the court denied the plaintiff’s motion for summary judgment and granted the defendant’s cross-motion for summary judgment.
In Liebman v. Waldroup, a Texas court of appeals considered whether a doctor’s provision of a letter to a patient to obtain “fraudulent ‘service dog’ credentials” was a health care liability claim requiring the plaintiffs to file an expert report under the Texas Medical Liability Act (TMLA). In the case, the plaintiffs—a couple and their three-year-old daughter—were entering a restaurant when the defendant’s dog, wearing a service dog vest, attacked the child unprovoked, causing her severe injuries. The plaintiffs sued the dog owner and the doctor that provided the dog owner with the letter establishing the need for a service dog. The claims against the doctor—negligence and aiding and abetting—were based on allegations that the doctor, a gynecologist, provided several letters to the dog owner at her request “‘solely . . . for the purpose of avoiding eviction from her apartment’” and stating that she required four service animals based on her “‘generalized anxiety disorder.’” They claimed that the doctor “‘took no steps to ascertain whether [the dog] was actually a service animal, trained to assist her with a disability’” and that the doctor “‘was indifferent to the actual grave risk posed to the community by assisting [the defendant dog owner] in her illegal and tortious conduct.’”
The defendant doctor moved to dismiss, asserting that the TMLA required the plaintiffs to serve him with an expert report within 120 days of his filed answer because their claims were health care liability claims. The plaintiffs contested the claims’ characterization as relating to health care, stating that they had no issue with the doctor’s diagnosis of general anxiety or the need for a service animal, but were claiming that the doctor “‘had no basis and no qualifications to justify his opinions that [the defendant’s] animals were “service animals” and specifically that . . . the animal that attacked and seriously injured [the child], was a service animal, while also offering his unqualified and non-medical opinion regarding [the dog’s] behaviors.’” The trial court denied dismissal, and the doctor appealed.
The appellate court began its analysis discussing the TMLA and set out the elements for a health care liability claim under the statute:
(1) the defendant must be a physician or health care provider; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s conduct must proximately cause the claimant’s injury.
The doctor argued that the second requirement regarding treatment was met, comparing the facts to two cases. The first, Buchanan v. O’Donnell, held that a doctor’s prescription of medication that contributed to the plaintiff’s injury was a health care liability claim requiring an expert report. The second, Monson v. Allen Family First Clinic, involved a letter written by a doctor and sent to the plaintiff’s employer regarding the plaintiff’s ability to work. The plaintiff was fired, and she thereafter sued the doctor for negligence for failing to train staff and prevent disclosure of the plaintiff’s confidential information. Although the plaintiff in Monson argued that her claim was not a health care liability claim, the court held that it was because the letter related to the plaintiff taking time off of work, which was part of her medical treatment. The court in Liebman distinguished both cases from the facts, stating that the facts in the other two cases related directly to the plaintiff’s medical treatment—the drug prescription in Buchanan and the letter limiting working conditions in Monson. Instead, the court agreed with the plaintiffs, stating that their claims related solely to the doctor’s statements regarding the dog’s behavior and the dog’s certification as a service animal. Further, the claims did not allege a departure from the standard of care because, as argued by the plaintiffs, “there is no accepted standard related to when a medical doctor for humans can offer his opinion about the qualifications and behaviors of animals.” The court concluded that the plaintiffs’ claims were not “‘inseparable’ from the rendition of health care.” Instead, the court explained that
the gravamen of the [plaintiffs’] negligence and aiding and abetting claims against [the doctor] is that he had no basis or qualifications to make the statements about [the dog] for the purpose of helping [the plaintiff] avoid eviction and which assisted her in obtaining a service vest for the dog and deceiving the public that [the dog] was a service dog.
Concluding that the plaintiffs’ claims were not health care liability claims, the court affirmed denial of the defendant’s motion to dismiss.
The Wyoming Supreme Court considered the issue of emotional distress in Cardenas v. Swanson. In the case, the defendant, a trapper, had set snares on state land near the plaintiffs’ home. The plaintiffs, a family of four, owned three dogs that frequently ran free on both the state land and nearby private land, returning each evening. One evening, one of the dogs did not return, and the plaintiffs searched unsuccessfully for the dog. The following day, the two children continued the search, taking their other two dogs to assist. While searching, the two dogs became tangled in the defendant’s snares and died. The children tried to release the dogs, with one being physically injured in the process, but were unsuccessful. When the parents arrived, they found the children distraught, with one “‘rolled up in a ball, crying’” and the other “‘crying, apologizing over and over’ for being unable to save the dogs.” Soon thereafter, a neighbor called, indicating they found the previously missing dog dead in a snare. The plaintiffs sued, alleging various claims and seeking emotional distress damages for the children’s injuries caused by witnessing the death of their dogs. The trial court dismissed all claims, except the negligence claim, and the plaintiffs appealed.
The Wyoming Supreme Court considered three issues on appeal: (1) whether emotional injuries are recoverable for property loss; (2) whether the plaintiffs’ minor personal injuries could support a claim for emotional distress damages; and (3) whether the court should adopt a rule allowing recovery of emotional distress damages for property loss if the defendant’s actions were illegal or unauthorized by law. The court rejected each proposition. As to the first issue, the court explained that prior case law had only recognized recovery for emotional injury without a physical injury for intentional torts such as false imprisonment and malicious prosecution, certain constitutional violations, and breach of the covenant of good faith and fair dealing. And, although infliction of emotional distress was a recognized claim, such claims were also limited because negligent infliction requires a familial relationship and the witnessing of serious bodily injury and intentional infliction requires outrageous conduct and severe emotional distress.
The court also considered two cases asserted to support damages for emotional distress without physical injury. The first was Daily v. Bone, which allowed recovery in circumstances where the driver of a car hit and killed a snowmobile driver and witnessed the impact and death, resulting in post-traumatic stress disorder, depression, and agoraphobia, but no physical injury. The court emphasized that Daily only allowed such a claim in the context of an automobile collision and did not otherwise create a negligence cause of action based on mental injury only. The second case, Larsen v. Banner Health Systems, involved a hospital that switched two newborns at birth, separating mother and daughter for forty-three years. The court allowed recovery by the mother and daughter, despite only suffering “great emotional pain, humiliation, anxiety, grief, and expenses for psychological counseling,” concluding that “‘in the limited circumstances where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm.’”
The plaintiffs argued that Larsen applied in the instant case because the Larsen court made clear that “‘the availability of [emotional distress] damages must be limited to plaintiffs who can prove that emotional injury occurred under circumstances tending to guarantee its authenticity.’” Here, the plaintiffs asserted, the circumstances surrounding the dogs’ deaths “authenticate” the emotional injuries of the children. The court rejected this argument, stating that “authenticity is not the determinative factor giving rise to a cause of action for emotional harm” and suggesting that the required factor is breach of a contract that creates a deeply emotional response, which the court found lacking here. The court compared the case instead to Blagrove v. JB Mechanical, Inc., which involved flood damages to a home and destruction of personal property caused by a plumbing contractor. Although the homeowners sought emotional damages without physical injury, the court held that “‘emotional distress damages in connection with property damages are not compensable.’” Applying that rule here, the court held that the plaintiffs could not recover for their injuries.
Turning to the second issue, which asked whether the children’s minor injuries could sustain their claim for emotional distress damages from witnessing the dogs’ deaths, the court held that they could not, based on the traditional impact rule. Under that rule, recovery is allowed for mental injuries only if they are “‘linked to an actual or threatened physical impact [to the plaintiff] caused by the defendant.’” Because the damages in this case arose from the loss of the dogs (property damage) and not the children’s physical injuries, no emotional distress damages were recoverable.
The final issue before the court was whether it should adopt a rule that would allow recovery of emotional distress damages for property loss if the “acts or omissions of the defendant were illegal or unauthorized by law.” The plaintiffs argued that pets should fall into a “property-plus category” because of the emotional attachment owners have to their pets. The court declined to make such a rule, refusing to “draw a distinction between animate and inanimate personal property” and leaving the issue to the legislature.
In Flynn v. Woodinville Animal Hospital, P.S., a Washington appellate court considered whether a negligent infliction of emotional distress claim could stand for the death of an emotional support dog. In the case, the plaintiffs owned a dog that provided emotional support for one of the plaintiffs. They took the dog to Woodinville Animal Hospital for treatment. On instruction of Woodinville, the plaintiffs took the dog to BluePearl Specialty Emergency Pet Hospital for surgery. The dog died shortly thereafter, resulting in insomnia, lack of focus, and depression in the one of the plaintiffs. The plaintiffs sued both Woodinville and BluePearl, alleging negligent infliction of emotional distress. Although Washington courts had already rejected negligent infliction claims based on loss of a pet, the plaintiffs argued that their case was different because the dog involved was an emotional support animal, their dog died and was not merely injured, and the defendants were experts hired to provide a service to the plaintiffs. The plaintiffs also argued that, because emotional support animals were subject to reasonable accommodations by housing providers under the Fair Housing Act, their emotional support dog was a “canine of a different legal pedigree.” The court rejected the arguments, finding no difference in this case and stating that rights established in another legal context do not establish a right for negligent infliction of emotional distress. The court concluded that status as an emotional support animal does not elevate the animal above others in the emotional distress context: “[T]he gravamen is not the degree of the emotional connection between the owner and its animal, but the fact that animals, whether they are pets or emotional support animals, are still considered property—even when there is a profound emotional connection.”
Also considered in Flynn, discussed immediately above, was the question whether the corporate negligence doctrine could apply to an animal hospital. The court held that it could not. The court explained that corporate negligence establishes four nondelegable duties owed by hospitals to their patients: “(1) to use reasonable care in the maintenance of buildings and grounds for the protection of the hospital’s invitees; (2) to furnish the patient supplies and equipment free of defects; (3) to select its employees with reasonable care; and (4) to supervise all persons who practice medicine within its walls.” These duties create in a hospital “an independent responsibility to patients to supervise the medical treatment provided by members of its medical staff.” The trial court dismissed the claim, finding that the corporate negligence doctrine only applied to full-service hospitals that treat humans.
On appeal, the plaintiffs argued that, because veterinary hospitals and human hospitals have similar construction and maintenance codes and because veterinarians are held to the same expectations as doctors, corporate negligence should apply to veterinary hospitals just as it does to human hospitals. The court of appeals disagreed, stating that, despite similar expectations society may have for veterinarians and doctors, the fact remains that animals are considered personal property and therefore are treated differently under Washington law. To demonstrate this difference, the court set out the Washington Supreme Court’s decision in Sherman v. Kissinger, which held that the statutory medical malpractice provision did not apply to veterinarians or veterinary clinics. Further, the case that adopted corporate negligence as a cause of action in Washington, Pedroza v. Bryant, dealt only with human hospitals, and the doctrine has never applied to anything but human hospitals. Although the plaintiff offered case law indicating that veterinary malpractice and medical malpractice claims are treated similarly, the court distinguished the cases, stating that “while physicians and veterinarians are comparable in some respects, this does not change the fact that Washington treats animals as property under the law.” The court concluded that whether corporate negligence should be expanded to animal hospitals is a question that must be answered by the legislature.
In Berry v. Frazier, a California appellate court considered the scope of potential veterinarian liability when a veterinarian wrongfully secured a plaintiff’s consent to a procedure. In the case, the plaintiff cat owner had sought the services of the defendant veterinarian to have her cat humanely euthanized at her home in the backyard. The defendant initially tried to inject a sedative into the cat to allow the plaintiff to say goodbye before a second injection would end the cat’s life; however, the defendant was unable to place a catheter to do so. The cat’s co-owner suggested that the defendant administer an overdose of the cat’s medication, but the defendant said that it would “take too long” and suggested instead an intracardiac injection where fluid would be injected straight into the cat’s heart. After some calming reassurances, the defendant sent the plaintiff and co-owner inside the house and then completed the procedure with his assistant.
The plaintiff later learned that the procedure used by the defendant was “‘extremely painful,’” considered “‘inhumane’” if administered when an animal is conscious, and was illegal under California law “‘unless the animal is heavily sedated or anesthetized in a humane manner, or comatose, or unless, in light of all the relevant circumstances, the procedure is justifiable.’” The plaintiff asserted that the procedure was unjustifiable in her case and that she would have chosen the overdose option if she had known about the “true nature” of intracardiac injection. The plaintiff sued, claiming causes of action for fraud, deceit, intentional misrepresentation, breach of fiduciary duty, conversion and trespass to chattels, and intentional infliction of emotional distress. The trial court sustained the defendant’s demurrer, and the plaintiff’s complaint was dismissed. The plaintiff appealed.
The appellate court went through each cause of action in turn, disagreeing with the trial court’s findings. The court first turned to the claims of fraud and misrepresentation. The defendant alleged that the plaintiff neither stated facts entitling her to relief nor asserted legally cognizable damages as she only claimed deprivation of the right to “‘give the cat a good death’” and was not the “subject or beneficiary of the veterinary care.” In support, the defendant cited McMahon v. Craig, which determined that “a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress” because the veterinarian’s care is directed at the pet, not the owner. The court disagreed, first noting that the plaintiff had sufficiently alleged statements of the defendant that would have affected any animal owner’s decision to consent to the procedure. The court also found McMahon inapposite because it did not consider “a claim of fraud based not on a veterinarian’s malpractice but rather on intentional misrepresentations made to induce a pet owner to consent to an unnecessary, unjustified, and painful procedure.”
The court next turned to the claim for conversion and trespass to chattels. The defendant claimed that his alleged conduct could only support a claim for malpractice and not trespass to chattels. The appellate court disagreed, relying on the decision in Levy v. Only Cremations for Pets, Inc., which had allowed a cause of action for trespass to chattels and emotional distress damages based on a crematorium’s mishandling of animal remains. In Levy, the court based its opinion on the agreement between the pet owner and the crematorium to provide a “‘dignified treatment of pet remains,’ thereby giving ‘emotional solace to grieving pet owners.’” The court found that this case was comparable to Levy because the plaintiff and the defendant “had a relationship predicated on the veterinarian’s agreement to provide for a humane euthanasia of a dying animal (i.e., ‘dignified treatment’ of a dying pet), thereby giving ‘emotional solace’ to a grieving pet owner who has made the difficult decision to euthanize the pet.” Although the defendant tried to argue that the plaintiff failed to state a claim for conversion or trespass to chattels because she had sought euthanasia, which was accomplished, and he did not intentionally harm the cat, the court disagreed, stating that the plaintiff alleged a legally protected right to decide when and how her cat would be euthanized and her consent to the defendant’s procedure was fraudulently induced.
As for the intentional infliction of emotional distress claim, the court again rejected the trial court’s dismissal, which had been based on the plaintiff’s failure to plead extreme and outrageous conduct and her outright consent to a procedure that had been successful and not done in the plaintiff’s presence. However, the appellate court found that the plaintiff had pleaded facts supporting an intentional infliction claim. It stated that the defendant’s conduct was directed at the plaintiff because he knew she wanted a humane death for her cat, but nonetheless “for his own motives and [being] aware of the suffering caused by the intracardiac injection” wrongfully secured her consent for the “unnecessary and unjustifiable procedure” with intentionally misleading statements. Finding no support for the trial court’s dismissal of the plaintiff’s complaint, the court remanded the case, instructing the trial court to allow the plaintiff to amend her complaint.
In Blue Pearl Veterinary Partners, LLC v. Anderson, a Virginia appellate court considered an issue of first impression, addressing whether damages for negligent injury to a dog can include veterinary costs that exceed the reduction in the dog’s fair market value. The court concluded that they can. The case involved a dog whose legs were crushed during a CT scan. The plaintiff dog owner sought $6,782 for “‘necessary treatment and evaluations’” and between $108,855 and $119,055 per year thereafter for the dog’s lifetime “‘for adequate and necessary rehabilitative care.’” The defendant veterinary group sought to exclude evidence of veterinary expenses exceeding $350, the dog’s purchase price, because “‘necessary and reasonable expenses incurred’” from injury to personal property cannot include repair costs exceeding the property’s diminished value. The plaintiff countered, arguing that the rule does not apply to dogs because they are living beings and owners must provide continuing veterinary care, partly to avoid criminal liability; therefore, veterinary costs are reasonable and necessary expenses. The trial court acknowledged the general rule asserted by the defendant, but determined that certain veterinary expenses exceeding the dog’s value could be deemed “reasonable and necessary” by the fact finder.
On review, the court of appeals also acknowledged the general rule regarding damages for repair costs, but noted that “‘the sundry rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered’” and that the rule is “‘a standard, not a shackle.’” It found support in prior Virginia case law for the proposition that a different measure of damages must apply when the damaged property has no market value, such as for damages for a family portrait or an architect’s plans. Having no case law of its own on the issue of pets, the court looked to Massachusetts case law and found a rule it deemed consistent with Virginia law:
“[I]f an animal is injured in such a way that proper care and attention reasonably may be expected to effect a cure,” the “expense properly incurred for this purpose is a part of the damage to the owner, for which he is entitled to compensation” even if that expense exceeds the diminution in the animal’s market value.
Although approving of the rule, the court cautioned that the expenditures must be reasonable, with reasonableness determined by the jury after consideration of factors such as “the type of animal; its age, purchase price, and any special traits or skills; the likelihood of the medical procedure’s success; and whether the medical procedures are typical and customary to treat the injuries at issue.” The court emphasized, however, that damages for emotional distress or mental anguish arising from the animal’s injuries are not allowed.
In Berry v. Frazier, discussed above in section II.D, the California Court of Appeal also considered whether a statute allowing exemplary damages created a cause of action for such damages, an issue of first impression for the court despite the provision being 150 years old. The plaintiff had asserted a violation of California Civil Code § 3340, which states: “For wrongful injuries to animals being subjects of property, committed willfully or with gross negligence, in disregard of humanity, exemplary damages may be given.” The trial court had dismissed the plaintiff’s § 3340 claim because the provision did not create a separate cause of action. With this, the appellate court agreed. The court explained that a statutory cause of action arises only if the statutory language or legislative history shows a legislative intent to create the cause of action. Here, the court explained, neither the statute nor its legislative history sheds light on the legislature’s intent or even defines “wrongful injuries.” Further, in its application, courts have permitted exemplary damages in cases involving intentional conduct, but have never based the damages on § 3340 itself. However, the court noted that, although the plaintiff could not assert § 3340 as a basis for exemplary damages, she could use § 3340 in conjunction with other actions in her pleading that would meet the statutory requirements of being “willful” and “in disregard for humanity.”
The court also rejected other bases for the trial court’s dismissal of the claim for exemplary damages. First, it disagreed that exemplary damages were barred because the plaintiff consented to the euthanasia procedure, pointing again to the defendant’s misleading statements to get that consent. Second, the court disputed the defendant’s unsupported assertion that § 3340 does not apply to veterinarians or to veterinary malpractice cases. It stated that the statute was broadly worded and had the legislature intended to create an exception for veterinarians, it knew how to do so. Finally, the court rejected the proposition that exemplary damages under § 3340 requires compliance with the procedural requirements of § 3294, which deals with exemplary damages for oppression, fraud, or malice. After examining § 3294, the court concluded that the language of the provision dealt exclusively with wrongful conduct against people, whereas § 3340 applies only to conduct against animals. Further, § 3340 has not been amended since enacted in 1872 and was extended to “the killing and slaughter of cattle” in the state Food and Agricultural Code, proving the provision’s continued validity. Noting that none of the cases that have applied § 3340 has required compliance with § 3294 requirements, the court refused to place those requirements on § 3340 now. Instead, the court stated, that is a decision for the legislature.
In Perczak v. Greenhill Humane Society, an Oregon court of appeals reversed a district court’s summary judgment that cut off ownership rights of a dog owner. In the case, while traveling through Eugene on a road trip with her dog, the plaintiff was arrested and jailed for reckless driving and eluding police. Because no one was identified who could care for the dog, Eugene animal control took custody and completed an impound report, identifying the reason for taking the dog as plaintiff’s arrest while the dog was in the car. The defendant Humane Society took custody of the dog pursuant to a contract with the city through a “safekeep,” a custody taken pursuant to an emergency, such as incarceration. Following protocol, the dog was subject to a five business-day hold period because the owner was known, and an impound notice was sent to the jail and to the plaintiff’s last known address. The notice informed the plaintiff of the hold period and redemption fees and stated that the defendant could adopt out or euthanize the dog after the hold period if the plaintiff had not contacted the defendant “‘to preserve [her] ownership rights.’” Because the plaintiff failed to contact the defendant before the hold period expired, the defendant adopted out the dog the following day to an unidentified individual.
The plaintiff sued, naming not only the defendant in the lawsuit but also ten unidentified John Does who represented the dog’s adopter but who were never served with the complaint because the defendant refused to disclose the adopter’s identity. The defendant moved for summary judgment, arguing that the plaintiff abandoned the dog under § 4.350 of the Eugene City Code, thereby entitling the city to impound the animal and subjecting the plaintiff to forfeiture. The plaintiff argued that § 4.350 did not apply because she was neither charged with or convicted of violation of the provision. The trial court entered summary judgment for the defendant.
The plaintiff appealed, reasserting her argument that § 4.350 was inapplicable because her dog was taken as a safekeep, not as an abandoned dog. The defendant responded with a new argument, this time asserting that the plaintiff’s failure to respond to the notice of impound constituted abandonment of the dog, which allowed a peace officer to enter the premises to impound an animal under § 4.370(6). The court of appeals rejected the argument, siding with the plaintiff. First, the court explained, the defendant’s argument failed to comport with the facts of the case. Section 4.370(6) states in part: “If there is probable cause to believe that any animal is being subjected to treatment in violation of 4.335 to 4.350, a peace officer, after obtaining a search warrant . . . , may enter the premises where the animal is being held, provide food and water and impound such animal.” Here, the dog was not seized based on a search warrant and probable cause of a violation, but was taken into custody as a safekeep, so the ordinance was inapposite. Second, the defendant’s new § 4.370(6) argument was not the basis for the issued summary judgment and, therefore, could not support its affirmation. Finding no legal basis for the defendant’s claim that the plaintiff “relinquished” her dog by failing to respond to the impound notice, the court reversed and remanded the case to the trial court.
In L.B. v. C.C.B., a New York lower court examined the origin of the “best interests” standard in determining the custody of pets at divorce. The case involved claims of both divorcing spouses for ownership of their two dogs. Before designating the custodial spouse, the court explored the development of the “best interests” standard by New York courts. It indicated that courts had long grappled with the issue of custody because, as chattel, the property rights of the spouses took precedence over their emotional ties to the pet. The view began to change in 1999 with the decision in Raymond v Lachmann, which applied a “best for all concerned” standard in the distribution of a family cat. Considerations in distribution included the cat’s age, life expectancy, and physical and emotional well-being. In 2013, the same standard was applied in Travis v. Murray, but not before an examination of whether a “best interests of the canine” standard should be applied instead. The court in Travis set out a list of questions that should be considered in the distribution, which this court interpreted as including consideration of the “best interest of the pet.” The court also noted that the “best for all concerned” standard had been applied outside the matrimonial context in Finn v. Anderson, a case that noted that “best interests of a pet” might be a valid consideration in distribution.
Despite prior case law carefully avoiding a pure “best interests” standard, the court nonetheless applied “best interests” in this case based on a new statutory edict from the New York legislature that became effective in 2021. Under § 236(B)(5)(d)(15) of the New York Domestic Relations Law, “in awarding the possession of a companion animal, [a] court shall consider the best interest of such animal.” Although the statute does not enumerate factors to consider in determining “best interests,” the court set out its duty:
In determining the best interests of a companion animal under DRL section 236 [B][5][d][15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive.
The court also noted that, in its analysis of “best interests,” the court must “evaluate the testimony, character, and sincerity of all the parties involved.” Applying that standard to the facts before it, the court awarded sole care and custody of the two dogs to the wife.
The same factors indicated in L.B. v. C.B.B. were used by another New York court in Conte v. Conte when establishing ownership and a visitation schedule for a divorcing couple’s dog. In Conte, the husband had left the marital home pursuant to an order of protection issued to the wife. At the time, the wife retained possession of the dog and allowed the husband visitation, but the husband took possession of the dog two months later with the assistance of a state trooper. The husband initially refused the wife visitation, but pursuant to court order, allowed the wife to take the dog for five hours on Tuesdays and Thursdays. The husband refused her overnight visits. The couple returned to court after the husband twice failed to allow visitation per their schedule. In applying the “best interests” standard, the court considered a number of factors, including the wife’s willingness to allow the husband visitation, an ultimately false claim by the husband that the dog was his service dog, and the husband’s angry, but presumed aberrational, response “when he ripped the service vest off of [the dog] and threw the leash to the wife’s attorney.” The court named the wife the dog’s owner and primary caretaker, but allowed a requested visitation schedule that gave the husband four continuous days with the dog each week.
Despite use of “best interests” in the divorce context, two replevin cases continued to use the “best for all concerned” standard. In Cromwell v. Lashley, for example, the court used that standard because it “‘[strikes] the best balance between a strict property analysis and the more extensive interests analysis involved in child custody cases.’” It also stated that consideration of “best for all concerned” includes “‘intangible factors such as why each party would benefit from having the dog in . . . her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or another.’” Similarly, in Pron v. Tymshan, the court added other considerations, including “[r]elevant facts . . . that reflect each party’s ability to meet the animal’s physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet these needs on a daily basis.” Applying the standards, the courts resolved the ownership disputes, with the court in Cromwell placing ownership in the dog trainer who received the dog from the original owner almost three years before and the court in Pron returning possession of a cat to the original owner after having been in the possession of a sitter for over two years.
In Santa Paula Animal Rescue Center, Inc. v. County of Los Angeles, the court reviewed two issues under California’s Hayden Act, a statute that was enacted to increase live release of animals from shelters. The Hayden Act allows shelters to enter into cooperative agreements with non-profit “animal rescue or adoption organizations” and requires the shelters to release shelter animals to these organizations if requested before euthanization. The release requirement does not apply if the animal is “irremediably suffering from a serious illness or severe injury.” At issue in the case was Los Angeles County’s policies of (1) only releasing animals from county shelters to organizations that were pre-approved by the county; and (2) not releasing animals that the shelter determined had behavioral problems.
In the case, two non-profit, no-kill animal organizations sought release of dogs from county shelters. The first organization, Lucky Pup Dog Rescue, was twice denied release of an animal because it was not pre-approved as an adoption partner. The second organization, Santa Paula Animal Rescue Center, Inc., was a pre-approved partner, but was denied release of two dogs because the county had determined that the dogs had behavioral problems. The organizations petitioned for a writ of mandate to compel the county to comply with the Hayden Act. They argued that the county could not place qualifications other than non-profit status on potential adoption partners and could not deny release of an animal scheduled for euthanasia unless the animal was irremediably suffering from a serious illness or injury. The county filed a demurrer, asserting that nothing in the Hayden Act precluded the county from imposing additional standards on its pre-approved adoption partners and, under the law, animals with behavioral problems are deemed unadoptable. In support, the county offered Food & Agricultural Code § 17005(a), Civil Code § 1834.4(a), and Penal Code § 599d(a), saying that the three provisions, when read together, “define adoptable animals, in part, as animals that ‘have manifested no sign of a behavioral or temperamental defect that could pose a health or safety risk or otherwise make the animal unsuitable for placement as a pet.’” It would be “absurd,” explained the county, to transfer animals deemed unadoptable. The rescues argued that the Hayden Act had only three exceptions to release of shelter animals and behavioral problems was not one of them. The trial court sustained the county’s demurrer and dismissed the rescues’ action with prejudice.
The court of appeals reversed the dismissal, holding that the county had no discretion to withhold animals that it determined had behavioral problems or were unadoptable or untreatable, although the county could place additional requirements on its adoption partners. The court addressed the release issue first, examining the statutory provisions relating to release and euthanasia. It found that § 31108(b)(1) imposed a mandatory duty of release because the provision states “shall . . . be released.” The court also agreed with the appellants that the Hayden Act only provided for three exceptions to the release, each of which provides for euthanasia instead: animals suffering from serious illness or severe injury under § 17006; newborn animals without a mother under § 17006; and owner-relinquished animals under § 31108.5 that have a “‘history of vicious or dangerous behavior documented by the agency charged with enforcing state and local laws.’” The court found support for its interpretation in the Hayden Act’s legislative history, which showed that an early version of the statute did contain language that would have allowed the county to exclude from release those animals it considered unadoptable or untreatable, but the language was “excised in a later draft, never to resurface.” The court also rejected the county’s argument that § 17005, which sets out a policy that no adoptable or treatable animals be euthanized, limits animals subject to mandatory release as only those that are adoptable or treatable. The court stated:
Imposing upon the County a mandatory duty to release dogs to adoption or rescue organizations is not incompatible with the general policy against euthanizing adoptable and treatable animals. Rather, we read the Hayden Act as providing the County access to additional resources, through cooperation with animal adoption and rescue organizations that focus on animals traditionally kept as pets, to determine whether dogs may be adoptable or treatable, and to prevent overuse of euthanasia, even in circumstances where the animal might not be adoptable or treatable. Rescue and adoption organizations may be better equipped to determine whether a dog is in fact adoptable or treatable, to treat those dogs that can be treated, or to rescue and care for dogs that cannot be safely adopted as pets. That the Legislature has permitted the County to form cooperative agreements with animal rescue and adoption organizations demonstrates its intent for these entities to work together to prevent the greatest number of animals possible from suffering euthanasia.
The court concluded that, based on the plain language and legislative history of the Hayden Law, the county had no discretion to withhold from mandatory release animals that were deemed by the county to have behavioral problems or were otherwise deemed unadoptable and untreatable.
Moving to the second issue, the court reviewed whether the county could place additional requirements on potential adoption partners other than non-profit status as set out in § 31108. The court first looked at the language of § 31108, which states that animals shall be released “to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organization.” Based on this language, the court described the appellant animal organizations claim as “posit[ing] that the Hayden Act essentially deferred to the Internal Revenue Service which organizations should qualify as adoption or rescue organizations.” The court disagreed, noting that the placement of the language referencing the Internal Revenue Code relates to the word “nonprofit,” not the phrase “animal rescue or adoption organization,” and the appellants did not provide support for any other reading of the language. The court stated that, because the Hayden Act is silent as to what constitutes a qualifying organization, the county had discretion to make that determination. The court also found support in § 31108 itself, which states that the county “may” enter cooperative agreements, which suggests the county has discretion. The court ultimately held that the county could place additional conditions on prospective adoption partners, stating that giving discretion to the county makes sense because it “facilitates the safe and appropriate placement of dogs.”
In Animal Legal Defense Fund v. Olympic Game Farm, Inc., the Washington Supreme Court received a certified question asking whether violations of state wildlife and animal cruelty laws and the Endangered Species Act could establish a claim for public nuisance in the absence of a legislative designation as a public nuisance, interference with use and enjoyment of property, or injury to public health and safety. The court held that they could not. The court’s analysis began with the statutory definition of nuisance, which is:
unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
Public nuisance “is a type of nuisance that ‘affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal,’” and can only be pursued by a private party where there is special injury. In addition, some specific actions constituting public nuisances are statutorily identified.
In analyzing the case law, the court found that an actionable nuisance required some injury or unreasonable interference with the use and enjoyment of private property, including loss to a neighborhood’s property values or the residents’ peace of mind, or some interference with public property, such as blocked waterways. Although a statutory violation can constitute nuisance per se, to be a public nuisance it must be shown that the violation occurred and that the action is a nuisance in all circumstances as declared by statute or case law. As for the certified question, though, none of the asserted statutory violations of animal cruelty or animal protection laws declared the actions to be nuisance per se, nor did any case law that interpreted them. Further, the certified question itself indicates that there is neither interference with the use and enjoyment of property nor a threat to public safety. Therefore, the court concluded that the answer to the question is no, unless the court changed the definition of public nuisance to include violations of animal protection laws.
The Animal Legal Defense Fund (ALDF) argued that the court’s reading of case law was too restrictive and that Washington law included cases expansively defining public nuisance to include activities unrelated to infringement of property, public health, or safety. The court disagreed, distinguishing each case offered. ALDF then argued that the activity in the case—operation of the defendant’s private zoo—was a nuisance because it infringed on the public property of wildlife. The court again disagreed, stating that there is no proof that the animals in the zoo came from the wild or was there any law suggesting that the public could use wildlife as they see fit, had any individual property rights to it, or even had a right to access the zoo’s private property. The court ultimately rejected ALDF’s view, stating: “Where the statutory framework and case law do not support a claim, none exists. We decline to expand the scope of nuisance any further.”
Chief Justice González concurred to emphasize his view of the changing nature of nuisance. He stated:
[T]he world has changed much since the days when King Henry II, Kukulkan, and the Great Khan were young. Now, the private use of land has profound potential to harm our ecosystem and the various species we share it with. It may well be time to heed Justice Douglas’s call to consider whether those places and things threatened with environmental catastrophe should have standing in court to sue for their own injuries. . . .[]
The common law evolves. People who would not have had the ability to come to court in the 12th century through much of the 20th century are now recognized as entitled to petition for redress of grievances, to demand equal justice under law, and to be heard. As the law recognizes new injuries it may also be called on to recognize new remedies.
In the Eleventh Circuit case Fahey v. Kolcun Tree Care, LLC, a tree services company could not use the Georgia EALA to shield itself from liability when an injured horse carriage driver sued the company for negligence after her carriage horse spooked and injured her. Consistent with EALAs across the country, Georgia’s EALA protects a specified subset of people from liability for injuries caused by the inherent risk of animal activities. At issue here was the statute’s catch-all phrase “any other person” in the list of who is protected: “an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock professional, an owner of a livestock facility, a llama activity sponsor, a llama professional, or any other person, which shall include a corporation or partnership.” Here, no other facts were in dispute, such that if the tree services company was in fact within the group of protected persons, it would have escaped liability: the carriage driver was a participant engaged in an equine activity, and her injuries resulted from the inherent risks of animal activities.
Although the plain and ordinary meaning of the words “any other person” could encompass a tree services company, the court explained that the words must be read in the context of the entire statute. In so doing, the court concluded that the phrase does not apply to a tree services company. The canon of interpretation ejusdem generis provides that when words of specificity (“equine activity sponsor, equine professional . . .”) are followed by words of general import (“any other person”) that are more comprehensive, the general words are to be viewed as relating only to the same kind of matters that were more specifically stated (an affiliation with equine and other animal activities). Moreover, if the catchall phrase were so broad as to include all persons of any characteristic, the words of specificity would be rendered unnecessary and mere surplusage, an interpretation that courts seek to avoid. Finally, the statute’s codified statement of intent of limiting liability to those involved in equine activities, livestock activities, and llama activities indicated that only those involved in such activities are granted protection under the law. Therefore, a tree services company is not immune from suit for negligence just because the injured party happened to be engaged in an equine activity at the time of the incident and injury.
In Molnar v. Tenacity Farm, Inc., an injured riding student’s negligence claims against the riding school and its instructor were barred by Michigan’s EALA, and her claim under the EALA for “willful and wanton disregard for the safety of the participant” also failed on the facts of the case. The plaintiff successfully and safely completed her first lesson on a horse assigned to her because it was especially gentle. Before her second lesson, the plaintiff was charged with retrieving the horse from a larger pasture to a smaller pasture. However, because neither she nor the instructor closed the gate between the pastures, another horse that was being led by the instructor broke free from the instructor and rushed through the gate after the plaintiff and her horse, kicking the plaintiff and breaking her leg.
In a circumstance where there is both a state EALA in effect and a signed liability waiver, a horse facility and instructor generally enjoy immunity from liability. To get around this immunity, in addition to alleging negligence, a plaintiff often will allege willful and wanton misconduct because those claims generally are not waivable in a liability waiver and not barred by statute. That is what this Molnar plaintiff did here. The Michigan Court of Appeals quickly dispensed with the negligence claim, affirming the trial court’s summary disposition because all parties fit squarely within the statutory framework, implicitly concluding that the circumstances involved injury caused by an inherent risk of an equine activity and noting that it does not matter that the horse that caused the injury was not the horse with which the plaintiff was engaged in activities. As for the claim for willful and wanton conduct, the Michigan Court of Appeals again agreed with the trial court that there was no genuine issue of material fact in the absence of any such conduct. The evidence indicated that plaintiff had done well and safely in her first lesson, and, at the start of this second lesson, she had no difficulty retrieving the horse into the smaller pasture. While the problems of the gate not being closed and the instructor’s loss of control of the second horse might be considered negligence on the instructor’s part, they certainly were not willful, in the sense of an intent to harm, or wanton, in the sense of being so reckless as to infer an intent to harm. Therefore, in the end, the plaintiff’s claims were summarily dismissed, without recovery.
The Michigan Court of Appeals case Britten v. Circle H Stables, Inc. emphasizes the importance of the protections that liability waivers add beyond those given in state EALAs, and it highlights the variations in state law when it comes to cases involving horse-related injuries, EALAs, and liability waivers. In Britten, the Michigan Court of Appeals concluded that the state’s EALA permitted a liability waiver to prospectively waive a plaintiff’s claims for willful and wanton conduct, thereby abrogating the common law rule that a person cannot contract away exposure to liability for his willful and wanton misconduct.
Like most EALAs across the nation, Michigan’s EALA grants immunity to certain equine professionals from liability for injury or death to a participant that resulted from an inherent risk of an equine activity, subject to exclusions. Under the Michigan EALA, one of the exclusions from immunity is if the equine professional acts or fails to act in a manner that constitutes willful and wanton disregard for the participant’s safety. The Michigan EALA goes on to permit an agreement “‘in writing to a waiver of liability beyond the provisions of [the EALA],’” which is an express statement approving of liability waivers that may not be so common among other states’ statutes. In reviewing the statute’s legislative purpose together with recent legislative history, the Michigan Court of Appeals concluded that the statement expressly allowing liability waivers to waive liability “beyond the provisions” of the EALA demonstrated the legislature’s intent to permit waivers of liability under each of the scenarios that would otherwise be exempt from the statute’s grant of immunity. As a result, nothing in the statute carved out the willful and wanton conduct exemption from the same treatment. Therefore, the Michigan statute permits waivers of claims for willful and wanton conduct, something not readily available elsewhere. This case re-emphasizes that the same case may have different results under different state EALAs, and that, while an EALA grants limited immunity, a well-drafted liability waiver can extend much greater protections to equine professionals.
In the Texas case of Green v. Lajitas Capital Partners, LLC, a resort’s liability release barred the injured plaintiff’s claim of negligence causing her injury during a trail ride in which she fell from her horse. The two sides’ wildly different descriptions of events is a common theme in such cases: on the one hand, the trail guide testified that when the resort’s water sprinklers activated and spooked the horses, most of the horses turned suddenly and sped up for a few steps, causing the plaintiff to fall from her horse; on the other hand, the plaintiff described her horse as having “bucked wildly” and “violently” throwing her to the ground.
In her lawsuit, the plaintiff alleged that the sprinklers were a “dangerous latent condition of the land” that the resort negligently failed to guard against and failed to properly warn against, a claim that if proven would not be barred by the Texas EALA but would be barred by an enforceable liability waiver. Having signed a liability waiver, the plaintiff argued for its inapplicability on the grounds that the waiver applied only to incidents arising from “elements of nature” and that it was not sufficiently specific to be enforceable.
As to the waiver’s specificity and “conspicuousness,” the Texas Court of Appeals began by quoting large sections of the thoroughly detailed agreement, demonstrating that the terms of the agreement contained headings and contrasting type with bold and underlined words to emphasize key points which, in this instance, plaintiff had also initialed. It thus rejected her argument regarding conspicuousness. The court further concluded that the liability waiver was sufficiently specific with respect to releasing plaintiff’s negligence claim. While a release must specify the type of claims being released, it need only “mention” a claim to an extent that the parties’ intent is clear, even if the actual name of the claim (such as “negligence”) is not used. This liability waiver contained the word “negligence,” and more, in the language releasing liability. Finally, the court rejected plaintiff’s attempt to argue that the man-made cause of her accident, water sprinklers, was not contemplated in the liability waiver. Dissecting the language of the waiver, the court concluded that it was clear that the release language alternately released liability arising either from “‘elements of nature’” or “other incidents caused by unfamiliar sights, sounds, or sudden movements.” The liability waiver even expressly provided an example of a condition subject to the waiver: “‘man-made changes in landscape.’” As such, plaintiff could not escape the enforceability of her liability waiver, and her claim failed.
In the California case of Browne v. Foxfield Riding School, a horse-riding school’s liability waiver did not protect it or its instructor against the plaintiff riding student’s negligence claims because the waiver did not include a release of claims for negligent conduct. California does not have an EALA, and so liability waivers are of particular import. The twelve-year-old riding student, through her mother, sued the school and the instructor for ordinary and gross negligence following a horse-riding accident while the student was attending the school’s summer sleepaway camp. Evidence was disputed as to how much of a beginner or not the student was, but on the third day of riding lessons, she joined a group for jumps in the cross-county field. On her second jump, the horse that she was riding bucked, and she was thrown, resulting in a spinal injury requiring surgery.
Plaintiff alleged, with expert testimony at trial, that her riding instructor had increased the risk to plaintiff beyond the risks inherent in horseback riding. In California, the primary “assumption of risk” doctrine limits the duty owed to others in recreational activities to the duty not to act in a manner that increases the risk of injury over the risk already inherent in the activity. Here, the student’s mother signed a thorough and detailed liability release that spelled out the dangers of riding a horse, that doing so always carries risk of injury, that horses are unpredictable, that they assumed these risks and waived any claims against the school and its instructors, agreeing to pay all medical bills associated with any resulting injury. Following plaintiff’s case-in-chief at trial, the trial court granted nonsuit on the negligence claim, finding that the liability waiver released plaintiff’s negligence claim. The gross negligence claim went to the jury, which returned a verdict in favor of the riding school.
On appeal, a divided division of the California Court of Appeal reversed the nonsuit of the negligence claim, explaining that the liability waiver was indeed thorough but it only released liability for risks inherent to horseback riding. In the majority’s view, the waiver was focused on inherent risks and did not clearly or expressly apply to negligent conduct or waive all liability. The waiver did not mention or indicate that the stated release and assumption of risk also applied to negligent conduct of the school or conduct that increased the risks inherent in horseback riding. The dissenting judge criticized the majority opinion, arguing that it was clear to the child’s mother of the risk of injury, and that the riding school had a reasonable expectation that it would not be the subject of a negligence claim, in keeping with the purpose of the law of contracts to “protect the reasonable expectation of the parties.” The dissent posited the question of how could a reasonable person read the agreement and not expect that every activity that the student participated in was covered by the release. If that were the case, according to the dissent, the mother’s signature on the form was of little effect.
In the Kentucky Court of Appeals case of Rieff v. Jesse James Riding Stables, Inc., a riding stable’s release was a valid pre-injury release because it clearly waived liability for all conduct short of gross negligence by indicating that all claims are released except for claims for gross negligence. The absence of an express reference to negligence did not defeat the enforceability of the release. Rather, it was an express release from all claims but gross negligence; it was virtually impossible to interpret the release to do anything other than protect against all claims but gross negligence; and the hazards at issue were specifically mentioned in the release and therefore clearly contemplated.
The injured plaintiff also took issue with the fact that a part of the waiver’s language could be construed as signing a release of liability for her children, who were also on the ride, and not for herself in her individual capacity. But the court declined to read that sentence fragment out of context. On review, the court concluded that the sentence was not ambiguous and was not capable of being interpreted as signed on behalf of her children only and not herself as well. The sentence itself states she is a party to the agreement, and later in the document she lists her name as one of the individuals for whom the waiver was signed, among other indications in the document that demonstrated that she in her individual capacity is included in the group of participants to whom the waiver applied. Plaintiff’s own deposition testimony confirmed that she knew that if she did not sign, she would not get to ride; in other words, this waiver was for her too, not just her children. The liability waiver withstood review on appeal, but it provides a good reminder when drafting liability waivers to ensure clarity about identifying the parties and the capacity in which they are signing, particularly when a liability waiver is intended to apply to more than one person at a time.
In Garcia v. Mountain Creek Riding Stable Inc., the Third Circuit affirmed the grant of summary judgment against an injured rider claiming negligence on the part of a trail ride operator. The plaintiff, who did not speak English, participated in a trail ride with her family. While the trail operator gave verbal riding instructions and her son was translating for her as a general matter, her son did not translate those instructions because she was distracted and busy putting on boots, though her husband gave some instruction based on personal experience. The operator also had participants sign a liability waiver written in English, which her husband signed for her. On the ride, the plaintiff’s horse went off trail, began running, and eventually reared up causing her to fall and sustain injuries. On review of summary judgment, the Third Circuit explained that because there was no evidence that the horse had a dangerous propensity, and because plaintiff was not alleging intentional misconduct, the operator could be liable only if it was negligent in “failing to prevent the harm.” To the court, the evidence did not demonstrate a failure to prevent the harm because the plaintiff had a translator available to receive instructions; she received some instruction on horse handling; she demonstrated some understanding of how to control a horse; and, finally, there was no evidence the operator did anything to cause the horse to run.
In Jacob v. Wainwright, the New Jersey court of appeals held that, for the plaintiff to prevail on her claim of negligence against the person handling the horse that injured her, she must present expert testimony to establish the applicable standard of care regarding horse handling. In this case, the plaintiff was injured while attending a horse show. She was near the defendant who was holding a horse and “shanking” (pulling up and down) the horse’s lead to get its attention. The horse appeared to be fidgety, and it was standing on pavers with steel shoes on its front hooves. Hearing a commotion, plaintiff turned, only to find the horse falling on top of her and injuring her leg. At trial, following the plaintiff’s case in chief, the trial court dismissed plaintiff’s complaint for lack of an expert on horse handling because the average juror would not know from common knowledge whether the defendant had mishandled the horse, noting that the average person would not know whether it was negligent to have a steel shod horse standing on pavers, or whether shanking was appropriate. The New Jersey court of appeals agreed, analogizing to many other contexts where experts are required to establish negligence of professionals in specialized professions or occupations. It explained that knowledge of horsemanship has become too far removed from the days when horses were commonly used such that the average juror today would not possess such knowledge. The court of appeals also affirmed the trial court’s ruling declining to apply the doctrine of res ipsa loquitor to the facts. Just because the horse fell on plaintiff does not mean someone was negligent, because there are numerous reasons other than negligent conduct that could explain the fall.
In Harper v. State Farm Mutual Automobile Insurance Co., a Delaware trial court held, as a matter of first impression under Delaware law, that a horse-drawn buggy is not an “uninsured motor vehicle” for the purpose of obtaining uninsured motor vehicle coverage after an insured’s vehicle collided with the buggy. As the court explained, the plain meaning of motor vehicle simply does not include a vehicle pulled by a horse as opposed to being powered by a motor, nor do Delaware’s UM/UIM laws require a different result.
In the New Jersey court of appeals case of Ruch v. Morales, the appellate court held that a landlord’s insurer had a duty to defend and indemnify the landlord in a dog bite case against the landlord and one of its renters, on the basis that the animal exclusion in the policy was inapplicable. Individuals bitten by a renter’s three dogs that had escaped the rental premises sued the alleged dog owner, and also sued the property owner and managers for negligence in failing to maintain safe fencing, failing to enforce the property’s “no dog policy,” and failing to require removal of dogs with a known history of biting another. The property owner’s insurance carrier denied coverage under its policy on the basis that the policy contained an animal exclusion clause excluding coverage for claims relating to a “Designated Animal” either owned by the insured or for which the insured was responsible.
The trial court agreed with the insurer, finding no duty to defend or indemnify on the basis that the property owner was “responsible” under the alleged facts. However, the court of appeals did not agree. As the court of appeals explained, the insurer had a duty to defend because the claims asserted arose out of the property owner’s ownership of the premises, namely allegations of failure to maintain the fence and failure to enforce its lease against the dog owner. Such claims are “potentially covered claims” and therefore triggered the duty to defend. Furthermore, the court of appeals held that the designated animal exclusion did not apply because the term “responsible” was ambiguous, subject to more than one possible interpretation, and therefore the interpretation that supports coverage must apply. Specifically, the property owner interpreted the exclusion to apply only to animals for which the owner was “responsible” in the sense that it was obligated to care for it, which it was not. Consequently, the insurer was required to provide a defense.
In Missy J, LLC v. Westchester Surplus Lines Insurance Co., yet another landlord was sued for injuries from a dog on its premises. The landlord sought coverage under its commercial general liability (CGL) policy but was denied on the basis that the animal exclusion provision applied. This time the insurer prevailed. In this instance, the animal exclusion provision excluded coverage for injury that resulted from an animal simply existing or being present on the insured’s premises, not just for injury from an animal that the landlord owned or used in its operations.
The California Court of Appeal case of Dua v. Stillwater Insurance Co. involved the question of whether a homeowner’s insurer was obligated to defend her in a dog bite case, the answer being “yes.” In the underlying case, the third-party plaintiffs sued the homeowner for injuries to themselves and their dogs after two pit bulls owned by the homeowner’s boyfriend bit them while on a public street. The plaintiffs alleged that the dogs lived at the homeowner’s home and that she knew that her boyfriend’s dogs were dangerous, and the attack was therefore reasonably foreseeable and she had a duty to prevent it. The homeowner’s insurance company denied that it had a duty to defend because the policy had an animal liability exclusion precluding any duty to indemnify, and the underlying complaint alleged that the two pit bulls lived in the homeowner’s home, triggering the animal liability exclusion. The homeowner settled the underlying lawsuit and sued the insurer for bad-faith breach of contract and breach of the duty of good faith and fair dealing. She argued that the insurer had a duty to defend because the true facts, contrary to the underlying complaint, were that her boyfriend was not living with her at the time of the attack, the attack did not occur on her property, and the dogs were not under her care, custody, or control at the time of the attack. Such facts would trigger a covered claim. She therefore argued that the plaintiffs could have amended their complaint to allege a covered claim, thus resulting in a duty to defend.
In agreement with the homeowner, the court explained that just because there is no duty to indemnify does not mean there is no duty to defend. An insurer’s duty to defend is broader than the duty to indemnify, applying to claims that potentially seek damages that are within policy coverage, even if groundless, false, or fraudulent. Because facts outside the complaint and known to the insurer, if they had been pled, would have triggered coverage, the insurer had a duty to defend. It does not matter that ultimately the homeowner may face no legal liability under the true fact that she was not the dogs’ owner; in other words, the plaintiff’s claims were frivolous. That fact does not negate the duty to defend. As a result, the Court of Appeal reversed the grant of summary judgment in favor of the insurer on these bad-faith claims.
