New York Attorney

Thứ Ba, 3 tháng 7, 2012

Large Plaintiff’s award for dog death in Colorado

What is believed to be the highest monetary award in Colorado for the death of a pet comes from the case of Lohre v. Posh Maids where a Denver, CO court awarded the plaintiff $65,000 for emotional distress and negligence surrounding the death of her dog when it was let out by the plaintiff’s cleaning service and struck by a car. The cleaning service employees then left the injured and dying dog underneath the plaintiff’s dining room table where it was still alive and according to their testimony ”whimpering a little”.

Maryland Court of Appeals finds that owners of “pit bull” breed dogs are strictly liable for dogs actions based solely on breed.

In a April 26, 2012 decision[1]which has gotten attention from around the country on both sides of the issue, the Court of Appeals of Maryland has set a dramatic precedent in the world of dog bite litigation by finding that as a matter of law if an owner or a landlord knows or has reason to know that a dog is a “pit bull” or “cross-bred pit bull”, such owner is strictly liable for the actions of the dog and a plaintiff can establish a prima faciacase of negligence without first proving that the dog was dangerous or had a prior vicious propensity, the current standard followed by the majority of states, including New York.

The Court in overturning centuries of common law jurisprudence, held, seemingly with no evidence in the record before it that “[b]ecause of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous”.

Seemingly writing the decision with a result driven agenda and citing cases from every facet of dog litigation, including some with no relevance to proof[2] of instances in which a pit bull type dog has been involved in a dog bite and citing from literature, both scientific and non-scientific (mostly non) the majority of the court creates a new liability standard for the State of Maryland which is troublesome for dogs owners, landlords, municipalities and animal rescues.

The three judge dissent in calling the opinion of the majority “unenlightening” and “unworkable” correctly (in my opinion) points out the fundamental flaws in the decision of the majority. First, there is no definitive test or percentage of “pit bull” ancestry set by the court to allow anyone to determine what is a “pit bull” or “cross breed pit bull”. Secondly, what is a “cross-breed”? The minority recognizes this and correctly utilizes the term “mixed breed” which is any dog with a mixed genetic heritage[3]. Third, the minority points out that the new rule is grounded solely in the unsupported perceptions of the majority about a particular breed of dog, rather than upon properly adjudicated facts showing that the responsible party possessed knowledge of the dog’s vicious propensities. The minority finds that the majority has deliberately transformed a factual question into a legal one in order to create liability and that the decision of the majority is clearly and unfortunately result driven jurisprudence and further accuses the majority of legislating from the bench.

The minority scathingly points out what I suspected to be true as I first read the majority opinion; that there was no expert or factual basis within the record before the court to support a factual finding that pit bulls are inherently dangerous. The minority goes on to state that “[s]uccumbing to the allure of bad facts leads inevitably to the development of bad law”.

The minority points to the inequitable and inevitable conclusion that any other dog, no matter how vicious would be judged by a different standard in imposing liability. This raises an issue regarding the standards to be applied to all other breeds of dogs and the slippery slope which surely will result.

As of the writing of this article it seems that legislation will soon be introduced in Maryland to nullify the court’s decision.

[1] Tracey v. Solesky, Opinion No. 53

[2] Cases include an opinion by the Florida Supreme Court on the use of a pit bull image in attorney advertising.

[3] The minority correctly notes that there are currently over 25 breeds of dog which are commonly mistaken for “pit bulls” and further chastises the majority for ignoring this evidence and relying upon an assumption that all “pit bulls” are inherently dangerous. The author would also note that there is no formal breed of dog called a “pit bull”, such a generalization on part of the majority is indicative of the ignorance of the court as to the genetic history of the very animals that they seek to single out for no reason other than their genetic makeup.

Bill proposed to establish a Central Registry for Pet Abuse in New York State

Senator Mark Grisanti (R-60) has sponsored S.6875 which would amend the state Agriculture and Markets Law to have the Commissioner create and maintain an animal abuse registry for the State of New York. The bill comes after the successful enactment of such legislation in Suffolk and Erie counties and is modeled after the proposals for those counties.

According to a press release from the Senator’s office, five states, including Arizona, Maryland, Florida, Colorado and New York have pending legislation that would create and allow the public access to such a database.

The Third Department sets a new negligence standard, almost.

On April 5, 2012 Hastings v. Sauve, Case No.: 512407 (Kavanagh, J.) was handed down by our Third Department. The facts are as follows: the plaintiff was injured when her vehicle collided with a cow which was wandering on a local highway in the Town of Bangor in Franklin County. The cow was owned by a co-defendant of the defendant farmer who operates a farm adjoining the highway. The cow was being corralled at the farmer’s feed lot prior to being shipped for slaughter when it somehow escaped.

The plaintiff sued the defendants and only pled a negligence cause of action, for some reason failing to bring an action in strict liability, which is the proper allegation in a case involving a domestic animal[1]. The Court therefore affirmed the dismissal which had been granted by the Supreme Court. Such is the typical expected result in cases of this type and would have been an unremarkable result if the Court had not gone on to discuss its “discomfort” with the rule of law that when applied to the facts of the case would not permit recovery by the plaintiffs on a pure negligence claim.

The Court discussed the possible risks to the public that a large animal such as a cow may create when it is allowed to roam in the streets. The Court stated that such risks are “self-evident and not created because the animal has a vicious or abnormal propensity.” The Court went on to note that: “[t]he existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it.”

The Court concluded by stating that “we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.”

Where does this leave the present status of a negligence cause of action in a case involving an animal? The answer is dependent upon which judicial department the action is brought in.

Currently, the Third and Fourth Departments follow a requirement that strict liability based upon an animal’s prior vicious propensities be pled and proven before liability can attach for an injury to person or property caused by an animal. However, the First and Second Departments have adopted an exception to this rule.

The cases of Colarusso v Dunne, 286 AD2d 37 (2nd Dep’t 2001), Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t 2000) and Schwartz v. Armand Erpf Estate, 255 AD2d 35 (1^st Dep’t 1999) carve out exceptions to the strict liability only rule and impose higher standards of care upon property owners in limited circumstances where it is shown that a defendant breached a distinct, enhanced duty as required by the particular circumstances. Interestingly in all three of these cases where the courts imposed such a duty there existed in the facts a danger to small, infant children which should have been reasonably perceived by the defendants.[2]Also significant is that each of the cases involved serious injuries to the children.

Schwartz, the first case to recognize this “enhanced duty” involved a four-year-old child who crawled under an electrified fence at a horse corral owned by the defendants. The boy wanted to pet one of the horses and while the horse was walking towards the barn, the boy was kicked in the head and suffered brain injuries.[3]The Court, in affirming the denial of summary judgment, adopted the reasoning of the Restatement of Torts[4]and applied a common-law negligence standard due to the Court’s finding of a propensity which is normal to a “class” of animal (i.e. a tendency of horses to kick).[5]The Court held that for this enhanced duty to apply a distinct act must exist that the defendant should have done or not done under the circumstances presented. The Court found that even though the horse was properly contained in its corral, the owner had a distinct duty to keep the horse under control and a failure to do so allowed the cause of action for negligence to proceed.

The Court also went further and imposed a duty upon the defendants to take into consideration that where children are present on the property special safeguards must be established as children are inherently curious and have a propensity to examine novel and interesting things without regard for the danger that these things may involve. The Court also distinguished a horse as being more dangerous than a dog or cat due to its sheer size, an issue which was discussed in Hastings. The Court indicated that the defendants could have satisfied their duty by erecting additional fencing and by not merely telling the child to stay away, but also providing the child with a warning of the potential risks.

Relevant to the Schwartz case is St. Germain v. Dutchess County Agric. Soc., 274 AD2d 146 (2^nd Dep’t 2000) where a plaintiff was trampled by a cow that broke free from a handler during a County Fair. The Court held that a negligence standard applied as plaintiff’s expert’s affidavit supported the contention that the class of animal, in this case a young heifer (a female cow who has not yet given birth), was likely to be “spooked” and such a condition should have been known by the defendants.

In Colarusso, the defendant daycare operator permitted his dog to be present around children. The dog was “bear hugged” by the three year old plaintiff and he was bitten in the face by the dog. Upon appeal the plaintiffs abandoned their strict liability theory and advanced solely on negligence. The Court found that an issue of fact existed as to whether the defendant owed a duty to prevent the interaction between the dog and the child.

Finally, in Diamond-Fisher a 20 month old infant plaintiff was allowed to reach for the defendant babysitter’s Siberian Husky’s food bowl while the dog was eating. The resulting bite required 104 sutures. There was no evidence that a vicious propensity existed, however the Court found that where a defendant is babysitting a small child a heightened duty exists to protect that child from potential dangers and held that an issue of fact existed as to the reasonable care exercised by the defendant.

The Third Department discussed and refused to follow the holdings of Colarusso, Diamond-Fisher and Schwartz in the case of Shaw v. Burgesswhich was decided in 2003[6].

Shaw involved a fact pattern where the defendant owner failed to restrain his dogs at his property while a prospective purchaser was viewing the property, despite a warning from his realtor to have the dogs contained when showing the property. The plaintiff (the prospective purchaser), who was bitten by one of defendant’s dogs, was unable to show a prior vicious propensity and instead argued that the realtor’s warning gave rise to an enhanced special duty which, the plaintiff contended, would give rise to liability under a theory of common law negligence. The Court declined to follow the plaintiff’s argument and affirmed the dismissal of the complaint.

Interestingly, the Shaw case contained a dissent by Justice Peters who stated that under the fact pattern presented in Shaw, the negligence cause of action should be reinstated. Justice Peters was on the panel in Hastings, yet did not write a dissenting opinion as to the negligence issue, but instead joined in the unanimous decision that the Court should not disturb the present rule of law. Is this due to the fact that Shaw involved dogs (Companion Animals) versus Hastings which involved a Domestic Animal? Should different standards and higher duties of care be imposed on keepers of Domestic Animals with the often difficult to prove strict liability standard imposed on persons who harbor Companion Animals? Should all incidents involving animals where a person was merely negligent be actionable? Should we only apply a negligence standard when children are involved?

Undoubtedly members of the plaintiffs’ and defense bars have differing views. However, whether the pure “strict liability standard” followed by the Third and Fourth Departments or the “enhanced special duty negligence standard” followed by the Second and First Departments is legally correct, this issue should be taken up and resolved by the Court of Appeals as there is clearly a split between the Departments and some uncertainty as to when and what circumstances give rise to the enhanced special duty standard.

[1] Remember “Domestic Animal” (Ag and Markets §108(7) is not a “Companion Animal” (Ag and Markets §350(5).

[2]Apparently, the First Department will not find an enhanced duty and refuses to impose liability under common law negligence where a defendant merely fails to ensure a gate is shut and an animal escapes, causing injury, see, Williams v. City of New York, 306 AD2d 203 (1^st Dep’t 2003).

[3]Having grown up in an agricultural community, I ask “where were the parents?” Unfortunately, a question that cannot be resolved by the courts.

[4] §518

[5]It should be noted that the Third Department has expressly declined to follow this “class of animal” theory under the Restatement of Torts and has instead held that a particular breed of animal is alone insufficient to raise an issue of fact as to whether or not such animal has vicious propensities. See, Bard v. Jahnke, 16 Ad3d 896 (3^rd Dep’t 2005) and its progeny.

[6]Shaw v. Burgess, 303 AD2d 857 (3^rd Dep’t 2003), for a similar holding as to Domestic Animals, see, Bard v. Jahnke, 16 AD3d 896 (3^rd Dep’t 2005)

Federal Attorneys and Sotheby's Agree to Keep Designated Information Confidential in U.S. v. A 10th Century Cambodian Sandstone Sculpture

Image courtesy of officeclipart.com.

Attorneys for both Sotheby's and the United States have signed a stipulation dated June 29 to keep designated information confidential. Published on July 2 in the forfeiture case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's, the stipulation says that relevant documents can be kept secret in pleadings and hearings if the information reveals Sotheby's:

potential, current, or past clients,
any consignment agreements or sales,
proprietary aspects of the auction house's compliance program, and/or
its sales strategies.

The stipulation allows Sotheby's to mark such information "CONFIDENTIAL," and the government may challenge the designation.

Specific documents that are to be kept confidential include a "Family Agreement" and a "Sales Agreement for Works of Art" supplied by Decia Ruspoli di Poggio Suasa, the reported consignor of the Cambodian sculpture to Sotheby's.

Meanwhile, lawyers for the United States may request that Sotheby's produce non-confidential documents with confidential information redacted. At the conclusion of the case, secret information shall be returned or destroyed according to the terms of the stipulation.

The U.S. Attorney for the Southern District of New York petitioned a federal district court in April to seize and forfeit the temple statue, alleging that it was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia." Sotheby's filed a motion to dismiss the claim in June. A hearing on the motion is currently scheduled for September 27.

Given that the forfeiture case is a public matter launched by federal officials and not a lawsuit between private parties; given that the case involves alleged violations of the federal customs law rather than violations of terms of a private contract; and given that compliance methods with respect to public laws on import and/or penal matters are at issue in the case as opposed to trade secrets, the stipulation will perhaps be the subject of debate by observers of the case.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Chủ Nhật, 1 tháng 7, 2012

When is a Bargain Not a Bargain? New York Lawyer Explains the Three Keys to a Plea Bargain

Riddle me this Batman, and so I thought I knew what a bargain was until I met some assistant DAs who had other ideas very different than my own. Bargains are always very personal opinions. They are when a buyer meets a seller, and thinks (believes) he is getting the better end of the stick.

I negotiate regularly. It is an art and a science. Most matters in this country are handled by plea bargaining. Over the course of my life I have gotten bargains. I have also had some people look to sell me things with prices way over what they were worth. I am a seeker of value. When something is or is not worth it, I'll be the first to let you know. I flatly refuse horrible deals.

So when is a bargain NOT a bargain:

1. When you are "paying" too much.

Nobody likes to pay too much for anything, even a crime. Paying too much can mean a few different things within the area of criminal law. Settling on a deal with either (a) too many charges (offenses), OR (b) charges that are at too high a level, OR (c) sentencing positions (recommendations) that are too harsh. This paying too much must always be based upon the charges, nature/circumstances of the offense, your potential defenses to the crime, and/or your past history.

2. When you are NOT fully informed of your Future Obligations (conditions).

Maybe your obligations will extend beyond the surface (beyond the written condition). Everything will not always be spelled out. Your lawyer needs to fill in the blanks, and help you read between the lines.

example one: If you are being evaluated or assessed (mentally or chemically) you will also need to follow through with recommendations. So you better ADD that in, that's another obligation (the follow through).

example two: All the terms and conditions of either a CD (conditional discharge) or Probation can have
additions and deletions (better read them carefully). Time periods can vary from months to years.

3. If the Judge is NOT going along with it.

S/he has to agree with the deal (the offer) or the deal is going nowhere. It's NO deal if it can never be consummated. Judges are always the third party to every deal. A prosecutor or ADA that makes me an offer must make one that is going to go through. I always want to know if the Judge is going to agree or is the Judge going along with a range. Will they agree to no greater than the PSI, or no greater than 30 days, or no greater than ________ blank.

Three very simple reasons that a deal (bargain) is NOT a bargain.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer: Exposure and the Law

As a DWI defense and PI (personal injury) lawyer people ask me my opinion on legal (and sometimes non legal) matters almost daily. It suits me perfectly for I am quite opinionated. It is either part of my character or it is in my nature but I have thoughts on many subjects. I like to think and express. I have views on restaurants, businesses, philosophies, paradigms, and even Tilapia, see my blog on Tilapia and adjectives:

http://ithacadwi.blogspot.com/2012/06/of-tilapia-and-adjectives-undervalued.html

Being Exposed

I like to use specific words to help people understand their situations. Words can either cloud or clear their view or perspective. I believe the first place to start a discussion about a problem or issue people are facing is to look at their EXPOSURE.

Exposure means what are they facing or potentially being subjected to? Whats lies in the distance or the near future for them? What should they expect, and when should they expect it? In other words, a person charged with a crime has to consider "their" openness.

1. Exposure is Always Personal

Two people can be facing the exact same criminal charges, and be exposed to vastly different things. How does that work? Because if one has a prior history of criminal and/or drug activity their exposure is greater than the unblemished first timer. Punishments ratchet up not down within the system. It is believed that if someone "continues" the same course or a bad direction of behavior that s/he must be dealt with more severely.

NOT just the Personal Past but those with a Personal Future

Exposure as being personal is not merely about where they have been, it also encompasses where they will be going. In other respects those with or desiring special licenses (doctors, lawyers, nurses, pharmacists), certifications (teachers), security clearances (government industries), positions of trust (banks, financial institutions), employment, military duty, educational opportunities, and permissions/privileges must take into consideration their present or future situation.

2. Exposure Follows a Direction

So punishment normally follows a path, we go from a set of Court Conditions to more extensive (harsher) conditions/obligations to Probation Supervision (monitoring) to County Jail (local) to State Prison or a combo of those things. Things usually go from bad to worse before they get better. There are creative options, such as rehabilitation and/or treatment programs that may jump you off this dead end track.

3. Exposure is Always Dual, it is always a Charge (crime/offense/level) and a Recommendation

People tend to focus on only half of a plea offer. They only focus on what charge is being offered. The basis of any plea bargain is two distinct things. A plea to a charge, AND a range of sentencing or a recommendation of sentencing to the Court/Judge.

NOTE: NYS has wide punishment ranges on just about everything (offenses/crimes) including violations (like speeding tickets). There are some mandatory things but by and large the Judge has great discretion.

The District Attorney's recommendation can state, no greater than a PSI (pre-sentence investigation) or what probation feels is an appropriate punishment or course of action. It can state no greater than 6 months in jail, or just probation, or a conditional discharge. Most judges will give the People's (the DA's) recommendation as part of a criminal plea bargain great weight in sentencing.

What punishments, penalties, fees, fines, programs, obligations, discomforts you will face are as important a consideration as the charge itself. Remember that ultimately the Judge will decide your fate, your penalty, and what you owe to set the balance scales right.