Showing posts with label animal law. Show all posts
Showing posts with label animal law. Show all posts

Wednesday, January 27, 2021

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0
In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA
Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA
Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.

Sunday, September 13, 2020

Animal champion Barr, J.D. '21, wins scholarship

Abbey and Toby
An alum of my torts class and president of the Student Animal Legal Defense Fund at UMass Law (I'm a faculty adviser), Abbey Barr is one of three first-place national winners of the 2020 Advancement of Animal Scholarships.  The scholarships are awarded by the national Animal Legal Defense Fund (ALDF) for supporting the organization’s mission “to advance the interests and protect the lives of animals through the legal system.”

Here's coverage of Abbey at ALDF; read more at UMass Law.  From hometown Falmouth, Mass., and a graduate of sociology from Keene State College in New Hampshire, Abbey is passionate about animal protection, besides being an energetic collaborator and valuable counsel to her peers.  I look forward to her vibrant advocacy as a member of the bar, and to the difference she's going to make in the lives of many of God's creatures.

Saturday, August 29, 2020

Conservationists battle to curb wildlife trade in wet markets, attorney Venckauskas writes

Prawns at a Marché Kermel in Dakar, Senegal, in February
(RJ Peltz-Steele CC BY-SA 4.0)
Attorney Kayla Venckauskas wrote an overview of conservationists' efforts to curb wildlife trade in wet markets since the emergence of coronavirus.

China's ban has loopholes for research, pets, and medicinal purposes, Venckauskas reported.  Conservationists are pushing for legislation elsewhere, too, for example, Vietnam and Australia.  But some observers argue that tight restrictions will only foster an unregulated underground market.

Based in the Boston area, Venckauskas (Twitter) is the first Rena Roseman Legal Fellow with Mercy for Animals.  She was once leader extraordinaire of the Student Animal Legal Defense Fund at UMass Law, and she seemingly effortlessly aced my 1L Torts classes.  Her piece, "COVID-19 Forces Countries to Reexamine Wildlife Trade in Wet Markets," appeared in the summer 2020 edition of the newsletter of the Animal Law Committee, a division of the Tort Trial and Insurance Practice Section of the American Bar Association.

Read more about wet markets at Mercy for Animals, "What do wet markets and factory farms have in common?," by Hannah Bugga (Apr. 20, 2020).

Wednesday, April 29, 2020

Recent commentaries ponder privacy in license plates, history of animal identity

Two blog entries tangentially related to areas of interest of mine crossed my desk this week.

CC TV (Adrian Pingstone CC0)
Privacy law.  For The Volokh Conspiracy at Reason, UC Berkeley Professor Orin Kerr wrote about the Massachusetts Supreme Judicial Court decision in Commonwealth v. McCarthy, No. SJC-12750, on April 16.  The Court considered the implications of automatic license plate readers under the Fourth Amendment, concluding that there are constitutional consequences, if not resulting in a violation of the defendant's rights in the instant drug case.  Kerr considers the case relative to the Supreme Court's 2018 cell-tower-location decision, Carpenter v. United States, and against the background of his own work on mosaic theory in privacy law (he's not a fan).  In a purely civil context, mosaic theory, born in the national security arena, has long been a key underpinning of personal privacy rights in their encroachment on the freedom of information, an accelerating conflict in the information age.  The commentary is "Automated License Plate Readers, the Mosaic Theory, and the Fourth Amendment: The Massachusetts Supreme Judicial Court Weighs In" (Apr. 22, 2020).

Peacock plumage (Jatin Sindhu CC BY-SA 4.0)
Animal law.  Evolution of animals at law was the subject of an Earth Day commentary for Legal History Miscellany by history Professor Krista Kesselring at Dalhousie University in Nova Scotia.  She traced the historical change in cultural and common law regard for animals from aesthetic adornment, to property of utility, to something, perhaps, at last, with intrinsic value.  The commentary is "Can You Steal a Peacock? Animals in Early Modern Law" (Apr. 22, 2020).  U.S. courts have evidenced a dawning recognition of animals as more than mere personal property, even in a civil context, moving beyond welcome developments in criminal anti-cruelty statutes.  The nascent trend is evident and needed especially in the area of tort damages, in which the valuation of a pet as an item of property fails profoundly to account for real and rational emotional suffering upon loss.  See furthermore the recent: Richard L. Cupp, Jr., Considering the Private Animal and Damages (SSRN last rev. Apr. 2, 2020).  HT @ Private Law Theory.

Saturday, March 23, 2019

RI SPCA officer speaks at UMass Law

Warzycha on RISPCA website
Joe Warzycha, humane law enforcement officer with the Rhode Island Society for the Prevention of Cruelty to Animals (RISPCA), talked to students at UMass Law on Thursday, March 21, about the legal framework underlying animal protection.  In 2018, Rhode Island (my home state) substantially beefed up its animal protection law (see changes summarized at Potter League for Animals), putting Little Rhodey in the "top tier" of Animal Legal Defense Fund ratings by state. Warzycha will soon be taking over leadership of the RISPCA, which is a private, nonprofit entity imbued with the legal authority to investigate and prosecute animal cruelty cases.  Warzycha is a U.S. Marine veteran and former police officer in East Providence, R.I.  He was invited to UMass Law by the Student Animal Legal Defense Fund, a member organization of the Animal Legal Defense Fund, and SALDF officers Kayla Venckauskas, '19, and Barnaby McLaughlin, '19.  The RISPCA is financially self sustaining and depends on tax-deductible charitable donations.



SALDF at UMass Law

Monday, February 25, 2019

Beyond anthropomorphism: Research posits post-humanist animal rights

Tomorrow the UMass Law Review will ceremoniously launch its volume 14.  Included therein is a deep, thought-provoking work on animal rights and welfare by Barnaby McLaughlin, '19, himself a teacher in the English Department at Rhode Island College.  The paper, "A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law," is available online from the law review.  I'm proud to say I was a reader on this project, though it was decidedly one of those I-got-more-than-I-gave scenarios.  I'll take my Ph.D now, please.  Here is the abstract.

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that, 

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .

Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.

This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means.

Sunday, February 11, 2018

UMass Law SALDF hosts speaker to explain service animals and ADA compliance

The UMass Law chapters of the Student Animal Legal Defense Fund (SALDF) and the Asian Pacific Law Students Associations (APALSA) co-hosted speakers including Evan C. Bjorklund, general counsel of the Massachusetts Office on Disability (MOD), in late January for a public event about service dogs and public accommodation laws.  Bjorklund's talk was recorded and produced for air by DCTV educational access.  View the video at DCTV here.
Evan Bjorklund on DCTV: Service Animals and ADA Compliance
UMass Law APALSA is led by Mali Lim, who by day is human services coordinator for community education and diversity for the City of New Bedford, Massachusetts.  UMass Law SALDF officers are Kayla Venckauskas, president; Barnaby McLaughlin, vice president; Kerina Silva, treasurer; and Kseniya Ruzanova, secretary.  Venckauskas was just appointed 2018-2019 editor in chief of the UMass Law Review and McLaughlin 2018-2019 I.T. editor.  Ruzanova is a member of Team 1L Torts.  Yours truly serves as faculty co-adviser for SALDF.