Pit bulls win, victims lose in USDOT & South Dakota Supreme Court rulings

USDOT “guidance” to airlines follows letter of Americans with Disabilities Act 

            WASHINGTON D.C.,  PIERRE, South Dakota––Public safety and pit bull victim advocates on August 8,  2019 suffered a double disappointment,  as the U.S. Department of Transportation and the South Dakota Supreme Court each issued edicts against breed-specific public policy.

Both the U.S. Department of Transportation and the South Dakota Supreme Court,  however,  made clear in their decisions that they were ruling specifically on existing laws based on literal interpretation.

Both the U.S. Department of Transportation and the South Dakota Supreme Court thereby left open the possibility that elected legislative bodies––the U.S. Congress and South Dakota state legislature––might choose to amend the present laws as written.

USDOT rules against Delta Airlines pit bull ban

The U.S. Department of Transportation in a 28-page “Guidance on Nondiscrimination on the Basis of Disability in Air Travel” held that Delta Airlines may not enforce a year-old policy that it does “not accept pit bull type dogs as service or support animals.”

According to the “Guidance,”  signed by U.S. Department of Transportation deputy general counsel James C. Owens,  “The Department’s disability regulation allows airlines to deny transport to an animal if, among other things,  it poses a direct threat to the health or safety of others.  However, the Department is not aware of and has not been presented with evidence supporting the assertion that an animal poses a direct threat simply because of its breed.”

Delta had no chance to present evidence

Owens was apparently able to make that statement only because the Delta policy prohibiting pit bulls was adopted after the comment period had already closed on a draft edition of the “Guidance.”

That left Delta with no opportunity to furnish evidence documenting the need for the policy,  introduced on June 22,  2018,  after “two Delta employees were bitten by a pit bull traveling as a support animal last week,”  the airline said.  This followed the June 2017 mauling of Delta passenger Marlin Tremaine Jackson by an alleged service pit bull aboard a plane scheduled to fly from Atlanta to San Diego.

            (See How the Americans with Disabilities Act has become the “Pit Bull Pushers Act”,  Will lawsuits slow use of dogs as “ambassadors” for dangerous breeds?,  and Pit bull advocate assault aboard jet upstages “support dog” attacks.)

Air Carrier Access Act

Also on June 22,  2018,  the “Guidance” recounts,  “the Enforcement Office issued a public statement indicating its view that ‘a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act.’  The Enforcement Office continues to take the view that restrictions on specific dog breeds are inconsistent with the current regulation.

“As stated earlier,  the ‘Guidance’ continues,  “The Enforcement Office intends to use available resources to ensure that dogs as a species are accepted for transport.  Consistent with existing law,  airlines are permitted to find that any specific animal,  regardless of breed,  poses a direct threat based on behavior.”

According to the June 22,  2018 Department of Transportation Enforcement Office statement, “Under Department of Transportation’s current rules implementing the Air Carrier Access Act, airlines are required to accommodate passengers with disabilities who depend on the assistance of service animals within limits.  Airlines are not required to accommodate unusual service animals, such as snakes,  reptiles,  ferrets,  rodents,  and spiders.

May refuse to carry gerbils, but not pit bulls

“A limitation based exclusively on breed of the service animal is not allowed under the Department’s Air Carrier Access Act regulation,”  the June 22,  2018 DOT Enforcement Office statement said.

“However, an airline may refuse to carry service animals if the airline determines there are factors precluding the animal from traveling in the cabin of the aircraft,”  the June 22,  2018 DOT Enforcement Office statement added,  “such as the size or weight of the animal,  whether the animal would pose a direct threat to the health or safety of others,  whether it would cause a significant disruption of cabin service,  or whether the law of a foreign country that is the destination of the flight would prohibit entry of the animal.”

The “Guidance” also argues against “a categorical ban on animals over a certain weight limit,”  since “Airlines have other means of ensuring safety for large animals aside from banning them outright.”

Delta response pending

The June 22,  2018 DOT Enforcement Office statement notwithstanding,  and despite vehement opposition led by the pit bull advocacy organization Animal Farm Foundation and the American SPCA,  Delta Airlines has continued to prohibit pit bulls from boarding passenger decks as “service” or “emotional support” animals.

Delta in a prepared media statement said only that it “continuously reviews and enhances its policies and procedures for animals onboard as part of its commitment to health,  safety and protecting the rights of customers with disabilities.  In 2018,”  the statement added,  “Delta augmented its policies on service and support animals to reinforce our core value of putting safety and people first,  always.”

Flight attendants want crackdown on “emotional support” animals

The Association of Flight Attendants,  a labor union representing nearly 50,000 flight attendants at 20 airlines,  on July 23,  2019 asked the Department of Transportation––for the second time in two years––to change rules that allow “emotional support” animals to fly in passenger cabins with as little restriction as the Americans With Disabilities Act allows airlines to impose on actual trained service dogs.

The first Association of Flight Attendants appeal to the Department of Transportation,  issued in September 2018,  mentioned a membership survey finding that 62% of flight attendants reported working a flight during which an emotional support animal caused a disruption in the cabin,  and that 53% of the disruptions included aggressive or threatening behavior by the animal,  including snapping at flight attendants.

South Dakota continues to allow “one free bite”

The South Dakota Supreme Court decision published on August 8,  2019 proceeds from South Dakota being a “one free bite” state instead of a “strict liability” state.

The difference is that in a “strict liability” state,  a dog owner is responsible for any and all damage done by the dog,  absent significant extenuating circumstances,  for example a finding that the victim of a dog attack was attempting to break into the owner’s home when mauled.

In a “one free bite” state,  the owner is responsible for dog attack damages only if the attack occurred through demonstrable negligence of a known risk.

In practice,  this usually means that the dog had previously shown dangerous behavior by biting someone else.

Campground attack

The South Dakota case brought before the state Supreme Court originated on the morning of August 9,  2015 at a campground in Newton Hills State Park in Lincoln County,  about 25 miles south of Sioux Falls.  A pit bull killed a bichon frise at the same location ten months later.

Plaintiff Darlene May Ridley was walking in the park,  summarized Bob Mercer of the Capitol News Bureau,  when “A pit bull named Meadow broke from her collar at a campsite and bit Ridley, causing various injuries,”  including “fracturing one of the woman’s fingers.”

The injuries required emergency room treatment.

Ridley sued defendants Susan Tribble-Zacher, Harry Podhradsky and Sioux Empire Pit Bull Rescue Inc.,  the apparent source of the pit bull,  but Circuit Judge Douglas Hoffman dismissed the lawsuits,  holding that the attack could not have been foreseen.

“Dogs are presumed tame and docile”

Ridley appealed,  contending that the dangerous nature of a pit bull should have been recognized,  that more precautions should accordingly have been taken to prevent the attack,  and that therefore Hoffman should have allowed a jury to decide the case.

“The law in South Dakota does not support any such breed-specific standard of care,”  wrote South Dakota Supreme Court chief justice David Gilbertson.  “We instead recognize that ‘[d]ogs . . . are presumed tame and docile and the burden is on [a] plaintiff[] to show otherwise,’”  as retired former South Dakota Supreme Court chief justice Robert A. Miller wrote in the 3-2 majority opinion that decided the 1997 case Tipton v. Town of Tabor.

Wolf hybrids held to be not predictably dangerous

In Tipton v. Town of Tabor the South Dakota Supreme Court held that it was not foreseeable that two wolf/German shepherd hybrids kept by Kenneth Holland would maul four-year-old Crystal R. Tipton when she wandered near their pens on November 12,  1990.

Holland,  who was uninsured,  was sued for damages,  but declared bankruptcy.  The Tipton family then sued the Town of Tabor for having allowed Holland to keep the wolf hybrids.

Concluded Miller,  “I concede these are wild animals.  But wild is not synonymous with inherently dangerous.  Further,  I believe it incumbent that owners of wild animals must take special care in their handling.  I disagree however,  in establishing the principle that knowledge of the existence of a wild animal within a community,  even though well-caged,  imputes actual knowledge of a dangerous condition to all public officials.”

Gilbertson was joined in the 3-2 majority against Ridley by justices Mark Salter and Steven Jensen.  Retired Justice Glen Severson and Justice Janine Kern dissented.

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