Animal Law Update | Civil & Criminal Animal Cruelty Lawyers

Infectious Diseases In Animals And Humans-What Is Your Legal Risk?

By Nancy E. Halpern, DVM, Esq. on April 15, 2013 Posted in Animal, Infectious disease, Legal liability, Public Health

Approximately 1500 pathogenic organisms exist on the planet (that we know of), of which a majority (75%) are transmissible from animals to humans (or visa versa). Some of historic significance include bubonic plague, rabies, and brucella (Ranchers, officials uneasy about brucellosis).

There are other infectious diseases that are not shared between species, but are extremely infectious intra-species, such as classical swine fever (a.k.a. hog cholera), canine distemper, and equine infectious anemia.

Photo courtesy of Simon Howden/freedigitalphotos.net

For more than a century, states have enacted laws to protect animal purchasers from harm resulting from buying an animal infected with a contagious disease at the time of the sale, at least when the seller knew, or should have known, of the infection. With our increasingly global environment, and the risk of infection through animals, vectors and other sources, has increased exponentially. One need only read today’s headlines about the most recent scare about avian influenza (Chinese lab reveals H7N9 source; china-avian-flu), to begin to question what each individual’s legal exposure could be.

Most cases have historically involved the sale of livestock infected with contagious diseases. In those cases, the seller was often accused of knowingly selling infected livestock. More recently, there is growing concern among livestock owners, because routine practices are serving as the basis for lawsuits. The accused conduct, in the two following cases has not before been known to incur the risk of litigation.

In Indiana, the the Wilhoite Family Farm, LLC sued TDM Farms, Inc. (TDM v.Wilhoite) after Wilhoite’s hogs allegedly became infected with a virus that the TDM farm used to intentionally infect their own herd-a routinely used vaccination technique when the particular strain of a virus or bacteria is not available in a commercially available vaccine.

Photo courtesy of James Barker/freedigitalphotos.net

(The disease TDM farm was attempting to control is a highly contagious disease called Porcine Reproductive and Respiratory Syndrome (PRRS the disease, its diagnosis, prevention and control), which causes widespread illness to swine and economic hardship to the farmers whose herds are infected.) Hogs on the Wilhoite farm, located within one mile of the TDM farm, became infected with the PRRS virus shortly after TDM vaccinated their herd. The viruses on both farms are allegedly genetically similar strains. The legal claims against TDM for nuisance, negligence and trespass were upheld by the Court of Appeals of Indiana, finding that the claims were not preempted by the federal regulations governing the use of vaccines in animals (Virus-Serum Toxin Act) or barred by Indiana’s Right to Farm Act. Farmers using this common method of vaccinating livestock must now consider whether that practice will expose them to similar litigation. (PRRS Lawsuit Could Affect Practices)

Photo courtesy of Tina Phillips/freedigitalphotos.net

In another lawsuit involving horses, this one in New Jersey (NJ Thoroughbred Assoc v. The Alpen House) Plaintiff’s, including the New Jersey Thoroughbred Horseman’s Association, Inc., among others, sued Alpen House U.L.C., a corporation that owns and races thoroughbred horses at racetracks throughout North American, for strict liability and negligence for allegedly infecting horses at a racetrack in New Jersey with Equine Herpes Virus-Type 1 (“EHV”). An emerging strain of this common equine virus causes Equine Herpes Virus Myeloencephalopathy (“EHM”), which renders affected horses neurologically impaired, often causing death or resulting in euthanasia. Since it’s first known appearance, in addition to illness and death, EHM has resulted in lengthy quarantines of horse farms, horse shows and race tracks. USDA and other organizations have issued numerous guidelines to help prevent the spread of this disease, for which a vaccine is currently unavailable. ( Equine Herpes Virus Myeloencephalopathy)

In a nutshell, this lawsuit is about the economic harm to certain race horse owners resulting from the State quarantine issued after the disease was diagnosed in New Jersey. Of concern to horse owners is the latent period wherein the infection, while present, has not resulted in clinical signs of disease that would alert anyone that the horse was infectious.

These cases illustrate some of the potential legal liability for those involved in livestock enterprises. More to come on the consequences related to cats and dogs.

What More You Should Know About Dog Fighting

By Nancy E. Halpern, DVM, Esq. on March 20, 2013 Posted in Animal Cruelty, Insurance, Public Health

I had the opportunity to testify on March 14, 2013, in support of A2379, the New Jersey bill that criminalizes dog fighting, and sets forth penalties for everyone involved in these illegal enterprises, from the dog owners, to fight organizers, gamblers, spectators, and more, described in Justice Long’s post.

Dog fighting does more than harm the dogs subjected to this cruel treatment-it changes public perception about the nature of the types of dogs associated with these enterprises, leading to breed specific bans that do nothing to protect the public or other animals. In fact, breed specific bans lull the public into a false security of safety, and nothing more.

That is not to say that dogs do not attack other animals, including people. The CDC reports that “[a]bout 4.5 million people are bitten by dogs each year. Almost one in five of those who are bitten :a total of 885,000: require medical attention for dog bite-related injuries.”

But aggressive behavior in dogs has far more to do with their socialization and training of dogs than with any “perceived” breed predilection. While, some behavioral tendencies are, at least partly genetic, the best way to prevent aggressive behavior in dogs, is through proper training and care.

Whether you own a dog, considered to be inherently aggressive or not, you should know what

your liabilities will be if your dog bites or attacks an animal or person.

In New Jersey, the relevant statute makes dog owners strictly liable if their dog bites a person, even if the dog never bit anyone. There are some exceptions-if someone is bitten while on your property illegally, you are not liable. However, once your dog is identified as “aggressive dog” your options going forward may be limited. And don’t forget about the potential for the increased cost of insurance, and other costs you may be liable for. As reported by the American Veterinary Medical Association: “The insurance industry estimates it pays more than $1 billion/y in homeowners’ liability claims resulting from dog bites. Hospital expenses for dog bite-related emergency visits are estimated at $102.4 million. There are also medical insurance claims, workmen’s compensation claims, lost wages, and sick leave-associated business costs that have not been calculated.”

Some pointers to keep in mind:

Just because your dog is not a breed commonly believed to be aggressive, does not mean he/she will not be a biter;
Choose your dog with potential behavior problems in mind, especially if you have other animals, young children, and/or are not home for most of the day;
Get as much information as possible about the background of the dog you are considering buying or adopting-information about the sire and dam, if known, former owners, etc.
If you know your dog has aggressive tendencies, take preventive measures to avoid situations that trigger those behavior-dog parks are probably out of the question;
Consult with your veterinarian to get the best preventive care and behavioral training available; and
Contact an attorney to fully understand and minimize your liability.

Stiffer Penalties in Store for Dog Fighters

By Virginia A. Long on March 20, 2013 Posted in Animal Cruelty

Dog fighting has plagued society since the 18^th century with widespread expansion after the civil war. Although unquantified, that expansion has continued through the 20^th century and, after a slackening in the 1990s, has apparently rebounded. According to the ASPCA, there are different levels of dog fighting activity. “Street fighters,” who are often associated with gangs, run dog fights in alleys, on corners and in playgrounds. “Hobbyists” participate in organized fights a few times per year. “Professional” dog fighters breed, sell and fight dogs, turning their miserable endeavor into a big business. Unfortunately, dog fight enthusiasts come from every strata of society, drawn in by money, the thrill of the fight and sadism. As with drugs, it is the consumer of the dog fight, who keeps the street fighters, the lobbyists and the professionals in business.

There is no redeeming social value in dog fighting. It involves the pitting of two animals against each other, sometimes to the death. The dogs literally tear each other apart and are often left critically wounded. The animals that survive are not treated humanely and generally never see a veterinarian. The tragedy for these dogs is not just the grotesque abuse they are subject to in the pit, but as one scholar put it, because “they literally suffer their entire lives.”

Last week, the New Jersey Assembly Judiciary Committee voted to approve legislation (A2379) that would impose stiffer penalties on those engaged in dog fighting. The bill adds “leading a dog fighting network” to the list of racketeering offenses under RICO and subjects such a leader to a second degree conviction, 5-10 years in jail and a $150,000 fine. It also enhances the penalties for dog fighting by imposing longer jail time (3-5 years) and higher fines (up to $15,000) on participants, including observers. The legislation also provides restrictions on the right of those convicted of dog fighting to own animals in the future.

If the Assembly Bill becomes law, it may not end dog fighting altogether but it is a step in the right direction. In addition to imposing penalties significant enough to have a potential deterrent effect on the malefactors, the enactment of the law will have the symbolic benefit of underscoring that our fellow citizens abhor the violence of dog fighting and are aligned against its perpetrators.

Pet Trusts: Protecting Your Pet When You Can No Longer Care For It

By Heather Eshelman McCusker, Esq. on February 25, 2013 Posted in Animal Planning

Image courtesy of dan / FreeDigitalPhotos.net

If your household is anything like mine, you treat your cherished pets like members of the family. If you were to pass away or become disabled, what would become of your pet? While you would like to think that your family or friends would assume a caretaking role in your absence, that is not always a realistic assumption. Nor would they be under any obligation to do so. The unfortunate reality is that many pets end up abandoned when their owners are no longer alive or able to care for them.

Therefore, it may be prudent to incorporate proper care for your pet in your estate plan, to ensure their continued well-being. Forty-six states plus the District of Columbia have enacted pet trust laws. Given the profound bonds of love and companionship between pet owners and their pets, it is no surprise that pet trusts have gained in popularity.

The late hotel magnate, Leona Helmsley, made headlines by providing in her estate plan for a $12 million trust for the benefit of her Maltese, Trouble. The pet trust created by Ms. Helmsley for Trouble was ultimately reduced under New York law as being too excessive. While a bequest to your pet is permissible, it must be done within the parameters of the law. Beware that laws concerning pet trusts differ from state to state.

In New Jersey, a trust may be created for the care of a domesticated animal. The trust instrument names a trustee to carry out the terms of the trust and the intentions of the pet owner. If no trustee is designated or if no designated trustee is willing to serve, a court may appoint a trustee and make such orders and determinations as are necessary to carry out the pet owner’s intent. No portion of the trust’s income or principal may be converted to the use of the trustee or to any use other than for the benefit of the animal designated in the trust.

The New Jersey statute provides that the trust terminates when no living animal is covered by the trust, or at the end of 21 years, whichever occurs earlier. Upon termination of the trust, the trustee must transfer the unspent trust property as directed in the trust instrument (to a human beneficiary, for example), or if there is no such direction, to the estate of the creator of the trust. A New Jersey court may reduce the amount of property transferred to the trust if it determines that the amount substantially exceeds the amount required for the intended use. The amount of any such reduction must be transferred as directed in the trust instrument or, if no directions are contained in the trust instrument, to the estate of the creator of the trust.

Image courtesy of Victor Habbick / FreeDigitalPhotos.net

The trust generally directs the trustee to apply so much income or principal for the benefit of the pet as the trustee deems necessary for the care, feeding, comfort, maintenance and medical treatment of the pet, even though such expenditures may result in the exhaustion of the trust. However, the trust can be customized to meet the particular wishes of the pet owner or needs of the pet. Typically, pet trusts are established under the pet owner’s Will, but they can also be established during the pet owner’s life, in the form of an Inter-vivos or Living Trust.

In this day and age where pets are often regarded as members of the family, pet owners are becoming more mindful of planning in the event of their death or disability. Pet trusts and other estate planning methods can be utilized to protect pets and guarantee their continued care and well-being.

Why is “Moose’s” law important?

By Nancy E. Halpern, DVM, Esq. on February 15, 2013 Posted in Animal Cruelty

New Jersey Assembly No. 3303, also known as “Moose’s Law” was introduced on September 27, 2012, in response to the death of Moose, a dog who was allegedly stolen by an animal trainer who is also a neighbor of Moose’s owner, and who left Moose in a hot car, unattended, which resulted in his death. This bill was drafted in response to concerns that this animal trainer, even if found guilty of animal cruelty, could continue to own and work with other animals. There is no doubt that if the facts about these alleged acts are true, the perpetrator should be punished, and that punishment may include a prohibition on the perpetrators ability to harm animals in the future, either by owning or working with animals, or both. The bill establishes an Animal Cruelty register, which lists every person found guilty or civilly liable of any New Jersey animal cruelty statute, and establishes a list of all employees of all New Jersey animal-related enterprises. Those on the Animal Cruelty register are barred from working at animal-related enterprises, no matter the offense. Notably, in some cases, this punishment seems to lack the balance we generally require in our laws.

As introduced, A-3303 would require a court to prohibit anyone found guilty of, or civilly liable for, any animal cruelty offense, from future ownership of domestic companion animals or animal-related employment. The bill has been amended to permit, but not require, the court to mandate the forfeiture of owned animals and prohibit ownership for a prescribed time period. That change permits the trier of fact, to take all the relevant facts into consideration when determining if an individual should be prohibited from animal ownership for a limited period of time, or forever.

However, there are remaining concerns about the bill, including:

An individual found guilty or civilly liable for any animal cruelty statute inNew Jersey or any other state will be included on a list developed and maintained by the State.
There is mandatory bar on employment for all those listed from employment at any animal-related enterprise, seemingly, forever. Is a permanent bar on such employment a reasonable result, even if the violation is minor, or a technicality?
How will this impact animal-related industries inNew Jersey?
How many “animal-related enterprises” exist inNew Jersey?
How many people are employed at such enterprises, whether full-time, part-time or volunteer?
What is the turnover of employees at these enterprises?
Who will bear the cost of the establishment and maintenance of this list, and the necessary investigation of each employee’s background?
What is the penalty to animal-related enterprises that do not comply within the prescribed time periods, or update their employee lists as staff changes?
For animal-related enterprises that do not fall under the authority of the Department of Health (e.g., farms, race tracks, zoos), how will enforcement be implemented?
How many animal cruelty cases are filed in New Jersey Courts?
Individuals charged have 90 days before they are fired, regardless of the status of the case.
How many result in criminal convictions or civil liability?
How will the courts provide accurate, timely information to the Commissioner of Health, for animal-cruelty summons issued?

Animal cruelty should be punished, but the remedies set forth in A3303 require further thought before this bill is passed, and would benefit if the discretion to list individuals, or prohibit their employment at animal-related enterprises were left to the Court.

Technical Glitches of Moose’s Law

By Nancy E. Halpern, DVM, Esq. on February 15, 2013 Posted in Animal Cruelty

There are additional technical difficulties with the interpretation and implementation of A-3303, that should be addressed to prevent further confusion.

The bill requires the Commissioner of Health: to establish a list of all employees of all animal-related enterprises, whether full or part-time, paid or volunteers; to track the records of employees of animal-related enterprises for criminal or civil liability for any animal cruelty statute in New Jersey or any other state; and to investigate all criminal or civil complaints of animal cruelty involving anyone employed at animal-related enterprises in New Jersey. Employers of animal-related enterprises must provide the Commissioner of Health with lists of all employees, must provide additional supervision to an employee accused of any civil or criminal animal cruelty offense for 90 days before dismissing that employee, even if judgment has not been rendered by 90 days.

What about self-employed, unlicensed persons working with animals, like the animal trainer at the center of Mooses Law?

It is unclear how A-3303 would impact employers or businesses found guilty of animal cruelty offenses, particularly when the business does not require a state or municipal license to operate. For example, animal trainers are not required to obtain a license to operate inNew Jersey. If self-employed, that trainer could continue to work.

The Wrongly Accused

Further, while the bill specifies that “[a]ny person who is disqualified from employment pursuant to this act shall be entitled to reapply for employment at an animal-related enterprise if the disqualifying conviction or finding of civil liability is reversed,” what happens to a business that is wrongly accused, once it is shut down?

The Department of Health Lacks Authority Over Animal-Related Enterprises

The bill should be amended to be consistent with existing statutory authority granted to the Department of Health (DOH) by the legislature. That would limit “animal-related enterprises” to any “animal rescue organization,” “animal rescue organization facility,” “kennel,” “pet shop,” “pound,” and “shelter,” as already defined by statute. Even with these limitations, based on existing statutory authority, it is unlikely that the DOH has sufficient resources to perform the mandated tasks.

Definitions Should Be Consistent With Those Already in the Animal Cruelty Statute

The definition of “domestic companion animal” should be amended to be consistent with the existing statutory definition “domestic livestock,” to eliminate the inconsistencies the proposed definition creates, and to insure that the protection to livestock mandated by the provision of humane standards of care to domestic livestock is maintained. An amendment of the term “domestic companion animal,” excluding domestic livestock is necessary to prevent confusion and ensure adequate protection of livestock species, owned for any purpose.

These issues of concern should be considered before A-3303 is adopted. While animal cruelty should not be tolerated, this bill proposes a complete overhaul of the penalties resulting from criminal convictions or civil liability for violations of the current animal cruelty statute, without regard to the severity of the violation. In addition to the technical issues highlighted, judicial discretion should be permitted instead of mandating the proposed penalties.

Protecting Your Pets Before, During and After a Storm

By Nancy E. Halpern, DVM, Esq. on February 11, 2013 Posted in Animal Planning, Disasters

Those of us in the emergency response community (I directed theNew JerseyDepartment of Agriculture (NJDA)’s emergency response for disasters involving animals for a decade, as the Assistant and then State Veterinarian), have long known the importance of this message. For more than 20 years, the New Jersey Veterinary Medical Association has worked with the NJDA, the New Jersey Office of Emergency Management, United States Department of Agriculture and many other state and local governmental and non-governmental agencies to make sure that pets are not left behind during evacuations. See Animal Emergency Preparedness. It was with great relief and pride to see that the years of hard work had paid off, and the message to evacuate with your pets, was part of the State’s early warning messaging.

That said, there is more to be done, including some simple steps everyone can take. For example, while Sandy was clearly extraordinarily devastating, people suffer from their own personal disasters and unexpected illnesses daily. Carrying a card in your wallet that lists any pets you have at home, with their location and perhaps some critical veterinary medical information could help save their lives in the event you are incapacitated and cannot even notify others that your pets are home…alone. This is particularly important for those people who live alone and may not have family or friends nearby who could pitch in and help. When advising clients who seek your legal services for estate management, along with discussions about the appropriate use of inter-vivos and testamentary trusts and wills that provide for the care of pets, the use of identification cards are a simple and effective tool that every pet owner should consider carrying.

The basic information on the card should include: name, species, breed and date of birth of the pet; particular medical needs; pet location (home or doggy-day-care) and contact information for people willing to serve as temporary or permanent care-givers. As part of the regular legal services you provide, for pet owners, annual or routine updating of these pet identification cards can be part of your ongoing services. This is important since the number and type of pets change over time, and the interest or willingness of others to care for someone else’s pets may also change.

In addition to these identification cards, fire departments and other emergency response units may be able to provide a sticker you can use to help identify what pets are in your home, so that first responders will be so-informed if responding to an event at your home. Other contingency plans, including provisions to consider in wills and trusts will be the subject of future blogs.

Some Unintended Consequences of “Moose’s Law”

By Nancy E. Halpern, DVM, Esq. on February 11, 2013 Posted in Animal Cruelty

“Moose’s Law” has been amended but still includes a number of provisions of concern.

The bill, as amended provides:

Except as may be otherwise provided by subsection d. of this section, no person who is convicted of, or found civilly liable for, an animal cruelty offense shall:

(1) commence, operate, apply for employment at, or participate in any capacity in, an animal-related enterprise . . .

While there are certainly some offenses against animals that would warrant such lifetime prohibitions, there are other offenses for which this punishment would be excessive.

Violator A who sells a baby chick

For example, if someone were to sell a baby chick or fowl under two months of age to someone for use as a household or domestic pet, that person or business who sold that animal, innocently or knowingly, is civilly liable under the animal cruelty statute. The penalty is payment of a sum of not less than $250 nor more than $500. If enacted, A-3303 would also bar that individual and/or business from working at an animal-related entity for an undetermined period of time. It is unclear if the amended statute would require closure of a business, such as a pet store, or farm supply store for such an offense. Clearly, such a result seems incongruent with the current penalty of a $250-$500 fine.

Violator B who drives with an unrestrained dog in the car

The provisions of A-3303 would also bar a person from working with animals if found civilly liable for animal cruelty if the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) determines that the person transported an animal “in or upon a vehicle or otherwise, in a cruel or inhumane manner.” While there are no regulations to further define what conduct constitutes such illegal transportation, the NJSPCA has recently stated that summons and/or warnings would be written if a person were observed transporting an animal “unrestrained in the back of pick up truck beds, sitting on a drivers lap, or with more than 30% of their bodies protruding out the windows of a vehicle.” Media Statement, NJSPCA Clarifies Unrestrained Animals in Vehicle Controversy, June 9, 2012. Notwithstanding whether the NJSPCA’s interpretation is valid, or would be upheld if legally challenged, a penalty that would bar an individual from working with animals, as a result of such an offense, seems excessive. Allowing for judicial discretion, in such cases, would provide for a case-by-case analysis to determine if an individual poses a danger to animals that would require such a bar on employment.

Violator C who cruelly beats a pet.

Should Violator A, B, and C be treated equally under the law, if Mooses Law is passed?

On the Status of New Jersey’s Animal Cruelty Statute

By Nancy E. Halpern, DVM, Esq. on February 11, 2013 Posted in Animal Cruelty

Animal cruelty laws in New Jerseyare due for a check-up, better, a complete overhaul. The original statute, adopted nearly 150 years ago, was intended to protect animals, mostly horses, against abuses at a time when horses were relied on for transportation and field work. At least two recent New Jersey State-directed investigations have concluded that the law needs to be updated, the statutory language, currently ambiguous and vague, has to be modernized; and enforcement must be updated to require enforcement by professional law enforcement instead of the current enforcement which falls “in large part to a group of private citizens (the Society for the Prevention of Cruelty to Animals, hereinafter “SPCA”) that, since the 1800s, has had the authority to carry weapons and make arrests but is not under the supervision of the Attorney General or County Prosecutors.” See New Jersey Animal Welfare Task Force Report, November 2004; State of New Jersey Commission of Investigation, Societies for the Prevention of Cruelty to Animals, December 2000. Following the publication of these reports, many bills have been introduced, in an attempt to modernize the statute, but few proposed amendments were adopted, so little has changed. Currently, more than 36 bills were introduced in the current legislative session, that directly or indirectly amend parts of New Jersey’s Animal Cruelty Statute. Minimal oversight by the State Attorney General was mandated in January 2006, requiring both the NJSPCA and all county societies to submit quarterly reports of law enforcement activity reports and an annual audit of all its financial transactions to the State Attorney General. Also, all “humane law enforcement officers” were required to take a mandatory nine-day training course subject to the approval of the New Jersey State Police Training Commission, and those SPCA humane officers who carry firearms had to complete the Basic Firearms Course under the supervision of the State Range Master.

These amendments do nothing to correct the ambiguous, vague and ill defined terms in the statute that describe unlawful conduct. There are no regulations to further define the meaning of these terms, except for the standards for Humane Treatment of Domestic Livestock provided by the State Board of Agriculture and the Department of Agriculture. The confusion that results from the lack of meaningful standards was exemplified earlier this year, when the State Motor Vehicle Commission and NJSPCA, misinterpreted the statute to provide legal authority to the NJSPCA to issue “[s]ummonses and/or warnings…when motorists are observed transporting animals in such a manner that will or could cause harm to the animals or others. Animals being transported unrestrained in the back of pick up truck beds, sitting on a drivers lap, or with more than 30% of their bodies protruding out the windows of a vehicle are examples. NJSPCA Press Release, Clarifies Unrestrained Animals in Vehicle Controversy, issued June 9, 2012.

A few states expressly prohibit the unrestrained transportation of dogs in the back of pick-up trucks, but New Jersey’s statute is typically vague on these prohibitions. Compare Connecticut’s statute (“No person operating a pick-up truck, as defined in section 14-1, on a public highway of this state shall transport a dog in the open rearward compartment of the pick-up truck unless the dog is secured in a cage or other container or otherwise protected or secured in such a manner as to prevent the dog from being thrown or falling or jumping from the pick-up truck.)” with New Jersey’s statute N.J.S.A. 4:22-18 ( “A person who shall carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner, shall be guilty of a disorderly persons offense and punished as provided in subsection a. of R.S.4:22-17.”).

No matter how well-meaning the NJSPCA is, the law should adequately inform citizens, residents and visitors to the State what conduct is prohibited pursuant to the animal cruelty statutes. This will become even more important, should any one of at least three proposed bills be adopted that mandate the seizure of animals owned by individuals who are found guilty or plead guilty to any civil or criminal violation of the animal cruelty statutes. See, A-3303 (as originally introduced).

If New Jersey is concerned about animals, the animal cruelty statute and the way in which those laws are enforced, should be updated.