Indiana Court of Appeals reinforces shelter duty to inform adopters of dogs’ past attacks
LOS ANGELES, INDIANAPOLIS––Reports from Los Angeles indicate that a recent Indiana appellate decision could have a multi-million dollar impact on a yet-to-be filed case in which a 70-year-old woman is reportedly in critical condition from an attack by a pit bull her son adopted from Los Angeles Animal Services in June 2020.
The Indiana Court of Appeals, in Indianapolis, is two thousand sixty-seven miles, about 31 hours of driving time, and the court systems of seven states distant from having any direct jurisdiction over Los Angeles Animal Services.
Appellate court verdicts, however, tend to have influence wherever similar cases go to trial.
“Dog-laundering” compared to “money-laundering”
Explained Beverly Hills dog attack attorney and Dog Bite Law blogger Kenneth Phillips, without referencing the Los Angeles mauling, “The Indiana Court of Appeals has just held that an animal shelter can be held liable for injuries caused by ‘dog laundering’––concealing a dog’s history of biting people with the goal of adopting out the dog, whether the history was known or ascertainable.”
“Dog laundering,” Phillips opined, “is just like money laundering,” the crime of “moving money from party to party in order to conceal its criminal origins. This is something I have been warning about for at least 15 years,” Phillips said, “and has reached scandalous levels, making the public justifiably wary about adopting a dog.”
Twelve attacks by dogs from L.A. Animal Services in five years
The Los Angeles pit bull attack, revealed on November 16, 2020 by CityWatch blogger Phyllis M. Daugherty, was at least the twelfth disfiguring attack involving a dog either adopted from or in custody of Los Angeles Animal Services since 2016. Two of the attacks were by German shepherds, one by a Cane Corso, one by a bull mastiff, and eight by pit bulls.
Daugherty called it “just one of the latest examples of a dog put up for adoption to the public by L.A. Animal Services after being impounded for a known vicious attack.”
“Horrendous damage done to the mother”
According to Daugherty, the attack “was not reported earlier due to the horrendous damage done to the mother of the adopter, who at last report was still hospitalized and in critical, declining condition.”
Daugherty based her account, she wrote, on “Los Angeles Animal Services documents obtained through a California Public Records Act request.”
The pit bull attack evolved, Daugherty learned, when a brown-and-white “mixed breed with an unknown owner,” so identified because Los Angeles Animal Services does not name dogs by breed, was found running at large on May 25, 2020 after mauling both arms of a 30-year-old jogger.
A pit bull is as deadly by any other name
Despite the lack of breed identification, a Los Angeles Animal Services photo of the dog leaves no doubt that he was in fact a male pit bull, not yet neutered.
Wrote Daugherty, “A note about this dog in Los Angeles Animal Services shelter records,” written soon after impoundment, “reads, ‘If an owner claims, see Senior Animal Control Officer or Officer in Charge. A Potentially Dangerous Animal case needs to be started.’”
Noted a shelter worker, the pit bull “had very soft body language when in Intake and in Receiving, but after he was placed in a kennel, I walked past to look at another dog and he suddenly lunged at me, jumping up toward my face. His body hit the kennel door so hard that he knocked himself onto his back, then quickly rose up again and continually lunged at me until I left.”
“Severity is critical”
Despite that, the pit bull was named O’Gee, urban slang for “Original Gangster,” and was vaccinated, sterilized, and released for adoption after completing a quarantine for observation of any possible rabies symptoms on June 8, 2020.
A shelter staff member gave O’Gee a positive behavioral evaluation on June 13, 2020. A day later, a shelter supervisor gave staff the “okay to give [O’Gee] to regular adopters.”
“O’Gee was adopted from the Los Angeles Animal Services’ Valley shelter on June 18, 2020, and inflicted life-threatening injuries to the owner’s mother on September 26, 2020,” Daugherty recounted.
“The attack is described as ‘both arms.’ Severity is ‘critical.’ Circumstance was ‘unprovoked,” Daugherty continued. “The record states that there had been ‘prior bites’” since the adoption.
“This dog is a big safety issue”
The adoptive owner told investigators that O’Gee “had attacked his nephew not too long ago and snapped at his mother yesterday,” according to another Los Angeles Animal Services internal memo that Daugherty obtained.
The adoptive owner requested that O’Gee be euthanized.
About six hours after the attack, Los Angeles Animal Services general manager Brenda Barnette authorized immediate euthanasia, on veterinary advice that “This dog is a big safety issue for staff.”
The potentially pending lawsuit will probably not be filed until the outcome for the victim now reportedly in critical condition is established and a reasonably full reckoning of her cost of care and rehabilitation can be made.
This may be several years from now.
Was adopter adequately advised before signing “bite waiver”?
If and when the case goes to court, it will probably hinge upon whether Los Angeles Animal Services adequately advised the adoptive owner about O’Gee’s history, including the severity of his May 25, 2020 unprovoked attack on the jogger.
A Los Angeles Animal Services employee stated in a brief memo that “I advised him about the behavior and he [the adoptive owner] understands that he will have to sign a bite waiver,” but a waiver of the right to sue another person or other legal entity is only valid when the full circumstances leading to the request for a waiver have been revealed and explained.
The October 15, 2020 Indiana Court of Appeals ruling will not be binding on a California court, but as the most recent appellate court ruling in a parallel case, it is likely to be cited and to be influential.
Grieg the Gordon setter
Summarized Katie Stancombe a day later for The Indiana Lawyer, “In 2014, the Clinton County Humane Society received a dog named Grieg,” a Gordon setter, “who was surrendered by his owner,” after seven years, “for not getting along with another dog in the household. Within the following year, Grieg was adopted out and returned by three separate owners, all of whom experienced aggression from the dog.”
A January 2, 2015 Facebook posting by Clinton County Humane Society volunteer Rick Ploughe, a humane society volunteer, said “Grieg was adopted from our shelter seven years ago to someone out of state, and as the contract required, they brought him back here instead of rehoming him.”
Grieg lunged at the 2-year-old son of his second adopter, Amy Dirks, on two occasions. The second time, on February 16, 2015, Grieg bit, “causing the child significant injuries,” according to the written Indiana Court of Appeals decision.
Grieg was “a nice boy”
The family surrendered Grieg to Marion County Animal Control.
Marion County Animal Control eventually returned Grieg to the Clinton County Humane Society.
Grieg was again adopted, for the third time in his eight-year life, but the second adopter returned Greig for lunging at him.
“In December 2015,” the Indiana Court of Appeals decision continues, “Darcie Kurtz, the transport coordinator at the Low Cost Spay & Neuter Clinic Animal Shelter in Brownsburg [Indiana], visited the Clinton County Humane Society. She encountered Grieg and contacted Rosie Ellis, the founder and president of [the] Southside [Animal Shelter, Inc]. Kurtz asked Ellis if she could transport Grieg to Southside to be considered for adoption. Kurtz told Ellis that Grieg was ‘a nice boy.’”
Prior history not fully disclosed
Mark Brown and family adopted Grieg, his fourth adoption, on December 31, 2015.
“No one at Southside told Brown about the alleged lunging incident involving Grieg’s former owner,” the Indiana Court of Appeals found.
But Brown signed a waiver stating, in part, “The undersigned agrees that the health and history of this animal is unknown and for that reason the adopter releases the Southside Animal Shelter and all its representatives from all liability, claims and damages should the animal become ill or die, and from any situations that may arise by reason of the animal’s actions, toward the person or property of the adopter or any other person.”
On January 16, 2016, Grieg attacked Brooke Brown, six, inflicting facial injuries that required surgery and left permanent scarring.
To this day, Grieg is the only setter of any sort to have inflicted an injury serious enough to be included in the ANIMALS 24-7 log of fatal and disfiguring dog attacks, covering more than 10,600 incidents involving dogs of 209 different breeds and mixes.
“Fraud and constructive fraud”
Marion County Animal Control retrieved and euthanized Grieg, after the Southside Animal Shelter declined to take him back. The Southside Animal Shelter refunded the adoption fee paid by the Brown family.
Wrote Stancombe for The Indiana Lawyer, “The Browns then sued Southside, the Clinton County Humane Society, Indianapolis Animal Control Services [the umbrella for Marion County Animal Control] and Marion County Animal Control, alleging they were negligent.
“Brown also added claims that Southside committed fraud and constructive fraud when it represented that Grieg’s history was unknown on the adoption release.”
Again according to the Indiana Court of Appeals decision, all three defendants filed for summary judgement against the Brown family.
“Not our dog” say shelters
The Southside Animal Shelter argued that “it was not liable for Brooke’s injuries because it was not Grieg’s owner or keeper at the time of the incident, because Mark had released Southside from liability by signing the adoption release, and because Southside did not commit fraud when it told Mark that Grieg’s history was unknown.”
Indianapolis Animal Control Services and Marion County Animal control likewise contended that they were “not liable for Brooke’s injuries because neither was Grieg’s owner or keeper at the time of the incident, because of a lack of proximate cause, and because of governmental immunity.
The Clinton County Humane Society also held that it was not liable for Brooke’s injuries because it was not Grieg’s owner or keeper at the time of the incident.”
All three shelters on December 11, 2019 won their motions for dismissal before the Marion Superior Court.
Shelter “had a duty to inform”
The Browns “appealed only the trial court’s grant of summary judgment for Southside,” continued Stancombe. “The Indiana Court of Appeals ultimately reversed for the Browns, holding that Southside, as the owner and/or keeper of Grieg, had a duty to inform the Browns of Grieg’s ‘vicious characteristics’ so far as it knew, or to the extent such knowledge was ascertainable by the exercise of reasonable care.”
Concluded the Indiana Court of Appeals, “Because Southside had a duty to inform the Browns of Grieg’s past bite history, and because there are issues of material fact regarding whether Southside breached that duty or proximately caused Brooks’ injuries, the trial court erred when it granted summary judgment in favor of Southside. Accordingly, we reverse and remand for proceedings consistent with this opinion.”
The material outcome of the case against Southside Animal Shelter brought on behalf of Brooke Brown will now be adjudged by Marion County Superior Court.
The Indiana Court of Appeals ruling relied, in part, on precedents established in Hosmer v. Carney et al., 1920, and Artificial Ice & Cold Storage Co. v. Martin, 1935.
A dog is not a horse
Both of these cases involved dangerous behavior on the part of horses. Although the legal issues pertaining to liability and responsibility for warning others of risk are similar, there are differences too, to which legislation has not yet caught up.
Specifically, unlike horses, dogs are carnivores. Many dogs kept mostly as pets today are directly and relatively recently descended from lines bred for centuries to hunt, guard, and fight.
Horses are kept outside, or in barns and stables, where they have little exposure to people other than their handlers and caretakers. Dogs are routinely and normally brought into homes, into proximity to children.
Even when horses were to be found working in various ways on every city block, like the horse who killed ice hauler Benjamin Earl Martin, triggering the 1935 precedent-setting case, horses were usually not turned over to people who were not believed to have previous experience handling horses. Horses in urban situations were almost always harnessed, or tethered if not actually being ridden, were usually blinkered, and no one took horses to run off lead in public parks.
Dogs, by contrast, are often adopted to people who have little or no previous experience with dogs, who typically expect to be able to take their dogs into the presence of other people, including children and strangers, who cannot reasonably be expected to recognize or respond effectively to whatever hazards a dog may present.
And the same agencies that often rehome dangerous dogs are typically also quick to encourage dog owners to allow their dogs to run off leash, with little if any regard for whatever other animals and people may be there.