Animal Rights & Dog Bites Legal Research Guide

1. Animal Rights& Dog Bites Legal Research Guide Advanced Legal Research University of Denver Sturm College of Law

2. Table of Contents • Introduction 3 - 6 • Secondary Sources 7 - 21 • Primary Authority 22 – 33 • Practice Materials 34 - 51 • Online Resources 52 - 57 • Conclusion 58

3. Introduction • The following Legal Research Guide provides a roadmap for the law student or practitioner faced with a problem relating to an injury caused by a dog, specifically, a dog bite.

4. Secondary Sources Encyclopedias Treatises American Law Reports Legal Periodicals Restatements Primary Authority Cases Statutes Administrative Materials Practice Materials Looseleaf Services Federal Practice Materials Federal Forms State Practice Materials Online Materials Commercial – LexisNexis Internet Legal Research Introduction

5. Introduction • Animal – • Any living creature other than a human being. • Domestic Animal – • An animal that is customarily devoted to the service of humankind at the time and in the place where it is helped. • Any animal that is statutorily so designated. • Source: Black’s Law Dictionary, 8th Edition (2004)

6. Key Search Terms • Dog • Dog Owner • Dog Bite • Dangerous Dog • Injury • Personal Injury • Liability • Caused by Dog • Running at Large • Strict Liability

7. Secondary Sources Encyclopedias

8. American Jurisprudence • 4 Am. Jur. 2d Animals § 42, What Constitutes “Running at Large” • 4 Am. Jur. 2d Animals § 79, Liability Imposed By Statute — Persons Liable; Joint or Several Liability • 4 Am. Jur. 2d Animals § 88, Acts or Conduct Constituting Intentional Provocation • 4 Am. Jur. 2d Animals § 112, Defense of Person or Property — Defense of Other Animals

9. American Jurisprudence • Through American Jurisprudence, I learned the definition and classification of a domestic animal. Additionally, I learned what constitutes an animal at large as well as liability and actions for injuries to animals or their death.

10. Corpus Juris Secundum • 3B C.J.S. Animals § 333, Injuries by Animals to Persons or Animals B. By Domestic Animals 2. Injuries by Dogs, Statutory Liability • 3B C.J.S. Animals § 342, Injuries by Animals to Persons or Animals B. By Domestic Animals 2. Injuries by Dogs, Contributory Negligence; Assumption of Risk • 3B C.J.S. Animals § 351, Injuries by Animals to Persons or Animals B. By Domestic Animals 4. Actions in General, Generally • 3B C.J.S. Animals § 377, Injuries by Animals to Persons or Animals; B. By Domestic Animals; 4. Actions in General, Damages — Dog-Bite Injuries

11. Corpus Juris Secundum • After looking through another encyclopedia, Corpus Juris Secundum, we know that many jurisdictions hold dog owners strictly liable by statute for injuries caused by their dogs. Often strict liability under a "dog bite" statute is imposed without regard to owner's knowledge of dog's viciousness. In addition, the statute may dispense with the common-law requirement of scienter, or with proof of negligence. Sometimes the removal of the common-law restriction of proving scienter or knowledge of dangerous propensities of dogs, applies only to the actions of dogs specified in the statute.

12. Secondary Sources Treatises

13. Treatises • Matthews Municipal Ordinances § 41.1, Section 19. Dog Bites (Nov. 2007) “General Regulations and Licensing” • Pattern Discovery: Premises Liability § 6.57 (3d ed.) “Animal Attack – Plaintiff to Defendant” Douglas Danner and Larry L. Varn • Pattern Discovery: Premises Liability § 7.56 (3d ed.) “Animal Attack – Defendant to Plaintiff” Douglas Danner and Larry L. Varn • Pattern Discovery: Premises Liability § 15.24 (3d ed.) “Strict Liability” Douglas Danner and Larry L. Varn

14. Secondary Sources American Law Reports Annotations

15. Federal A.L.R. Annotations • 102 A.L.R. Fed. 616 William G. Phelps, J.D. Liability, Under 42 U.S.C.A. § 1983, For Injury Inflicted By Dogs Under Control or Direction of Police. • 171 A.L.R. Fed. 483 Brian L. Porto, J.D. Admissibility of Evidence of Other Crimes, Wrongs, or Acts Under Rule 404(b) of the Federal Rules of Evidence, in Civil Cases • § 4[a] Civil rights Actions - Held Admissible • 91 A.L.R. Fed. 16 Kathleen M. Dorr, J.D. Federal Tort Claims Act: Liability of United States For Injury or Death Resulting From Condition of Premises • § 18(a) Injuries or Disease From Animals — Liability Established or Supportable; Negligence of Government • 84 A.L.R. Fed. 28 Sheila A. Skojec, J.D. Error In Evidentiary Ruling In Federal Civil Case as Harmless or Prejudicial Under Rule 103(a), Federal Rules of Evidence • § 10(a) Cumulativeness of Evidence — Harmless Error

16. State A.L.R. Annotations • 64 A.L.R. 3d 1039 Thomas R. Trenkner, J.D. Liability of Owner of Dog Known By Him to be Vicious for Injuries to Trespasser. • 30 A.L.R. 4th 986 Liability of Dog Owner For Injuries Sustained by Person Frightened by Dog. • 51 A.L.R. 4th 446 Ward Miller, J.D. Modern Statutes of Rule of Absolute or Strict Liability for Dog-Bite. • 64 A.L.R.4th 963 John P. Ludington, LL.B. Who “Harbors” or “Keeps” Dog Under Animal Liability Statute. • 11 A.L.R. 5th 127 Jay M. Zitter, J.D. Intentional Provocation, Contributory or Comparative Negligence, or Assumption of Risk as Defense For Injury By Dog. • 68 A.L.R. 5th 599 Jay M. Zitter, J.D. Liability For Injury Inflicted By Horse, Dog, or Other Domestic Animal Exhibited at Show.

17. Secondary Sources Legal Periodicals

18. LegalTrac • “There Are No Bad Dogs, Only Bad Owners: Replacing the Strict Liability Standard in Dog Bite Cases” Lynn A. Epstein, Animal Law, Spring 2006 p. 129 • “Woman May Seek Punitive Damages For Dog Bite, Manhattan Court Finds” Mark Fass, New York Law Journal, May 2006 • “Establish Liability for Dog Attacks” Kenneth Phillips, Trial, Sept. 2005 v. 41.9 p. 74(1) • “Torts – Dog Bites” Steven P. Bann, New Jersey Law Journal, May 2002 v. 168.6 p. 53(1)

19. LexisNexis • “Tort Law in Action and Dog Bite Liability: How the American Legal System Blocks Plaintiffs from Compensation” Hilary M. Schwartzberg, Connecticut Law Review, Feb. 2008, 40 Conn. L. Rev. 845 • “On Redefining the Boundaries of Animal Ownership: Burdens and Benefits of Evidencing Animals’ Personalities” Geordie Duckler, Animal Law, 2004, 10 Animal L. 63 • “Torts: Smith v. Ruidoso: Tightening the Leash on New Mexico’s Dogs” Anna Sibylle Ehresmann, New Mexico Law Review, Spring 2002, 32 N.M.L. Rev. 335 • “Is There (And Should There Be) Any “Bite” Left In Georgia’s “First Bite” Rule?” Cindy Andrist, Georgia Law Review, Spring 2000, 34 Ga. L. Rev. 1343

20. Secondary Sources Restatements

21. Restatements • Restatement of the Law, Third, Torts: Liability for Physical Harm, § 23 • (d) Statutory Strict Liability In the Absence of Scienter. • In about half of all jurisdictions, statutes exist that impose strict liability in dog cases even in the absence of scienter. Almost all of these statutes are limited to dogs; many of the statutes are limited to the special problem of dog bites, but other statutes apply to a broader range of injuries and harms brought about by dogs. While it is relevant to acknowledge these statutory strict-liability arrangements, it remains appropriate for the Restatement to adhere to a scienter standard for strict liability, even for dogs. For common-law purposes, a categorical distinction between dogs and all other animals is not justifiable. Nor is there justification for categorically distinguishing, as do many of the statutes, between dog bites and all other categories of dog-caused harms; yet to impose strict liability, without regard to scienter, to the full range of physical harms that may be caused or occasioned by the activities of dogs is also difficult to justify. Courts in states whose dog statutes are written in broad terms have struggled in ascertaining what limits to place on the scope of strict liability. Yet the Restatement, although not accepting these statutes' general position on strict liability in the absence of scienter, can still draw lessons from particular positions the statutes take on related issues.

22. Primary Authority Cases

23. Key Numbers from West’s Descriptive Word Index Animals Actions Animals Running at Large, Injuries by or To, Anim 55 Personal Injuries Cause by Animals, Anim 74(1-9) Civil Liability Personal Injuries by Animals, Anim 66 – 74 Animals Parties Personal Injury Caused by Animals, Anim 74(1) Provocation As Defense to Liability, Anim 71 Dogs Injuries Caused by Dog, Anim 53, 68 To Other Animals, Anim 81 To Dog, Damages, Damag 39, 113, 139 Cases

24. Key Numbers from West’s Descriptive Word Index • The Key Numbers from West’s Descriptive Word Index provided me with an enormous amount of information. The Key Numbers make it easy to trace the history of a case, statue, administrative decision or regulation to determine if there are recent updates, and to find other documents that cite the particular document you are working with.

25. Primary Authority Statutes

26. Federal Statutes • United States as Defendant, 28 U.S.C.A. § 1346 • Where child was member of class which base regulation governing control of dogs was designed to protect, dog owner was member of class upon whom duty of protection was imposed and violation of regulation was proximate cause of child's injuries when she was bitten by dog because it was direct and immediate cause without which accident would not have occurred, owner's conduct comprised negligent acts or omissions done within scope of his employment and government was liable for child's injuries. • Civil Action for Deprivation of Rights, 42 U.S.C.A. § 1983 • Town police chief was not liable under § 1983 for federal negligent supervision claim brought by pitbull dog owner after police officer shot and killed pitbull that escaped from residence and ran toward officer and police canine as they were attempting to track a fleeing suspect. • Creation of Remedy, 28 U.S.C.A. § 2201 • It was appropriate for federal district court to exercise jurisdiction over insurer's action seeking declaration that it was not liable under homeowners policy for injuries inflicted by insureds' dog, even though matter raised novel issue of state law, and insurer could have filed declaratory judgment action in state court or intervened in injured party's state court action against insureds • Exclusiveness of Remedy, 28 U.S.C.A. § 2679 • Infant's claim against United States under Tort Claims Act for injuries sustained when she was bitten by United States park police officer's dog was deemed to have been timely filed, under Tort Claims Act where she filed her state claim against officer within applicable New York limitations period.

27. State Statutes • Injuries to be Reported – Penalty for Failure to Report – Immunity from Liability, C.R.S.A. § 12-36-135 (2008) • Civil Actions Against Dog Owners, C.R.S.A. § 13-21-124 (2008) • Cruelty to Animals – Aggravated Cruelty to Animals – Neglect of Animals – Offenses, C.R.S.A. § 18-9-202 (2008) • Unlawful Ownership of Dangerous Dog, C.R.S.A. § 18-9-204.5 (2008)

28. State Statutes • After researching Colorado State Statutes I discovered that Colorado's dog bite statute is located at Col. Rev. Stats. § 13-21-124. This particular statue governs dog bites that happened on or after April 21, 2004.

29. Primary Authority Administrative Materials

30. Federal Administrative Materials • Code of Federal Regulations • Animals and Animal Products – Animal and Plant Health Inspection Service, Department of Agriculture • Time and Method of Identification, 9 C.F.R. § 2.50 • Housing Facilities, Generally, 9 C.F.R. § 3.1 • Primary Enclosures, 9 C.F.R. § 3.6 • Consignments to Carriers and Intermediate Handlers, 9 C.F.R. § 3.13

31. Federal Administrative Materials • Agency Websites • Animal Welfare Information Center • Animal Welfare Regulations - 2005 Code of Federal Regulations

32. State Administrative Materials • Code of Colorado Regulations • Colorado Department of Agriculture – Animal Industry Division • Rules and Regulations Pertaining to the Administration and Enforcement of the Pet Animal Care and Facilities Act, 8 Colo. Code Regs. 1201-11 • Application for Licensure and Conditions for Licensure, 8 Colo. Code Regs. 1201-11(2) • Pet Animal Boarding and/or Training Facilities, 8 Colo. Code Regs. 1201-11(16) • Bureau of Animal Protection Rules, 8 Colo. Code Regs. 1201-18

33. State Administrative Materials • Agency Websites • Code of Colorado Regulations • Pet Animal Care Facilities Program

34. Practice Materials Looseleaf Services

35. Looseleaf Services • After doing a thorough search I could not locate anything under the topic of Animal Law in the Looseleaf Services.

36. Practice Materials Federal Practice Materials

37. American Jurisprudence Trials • Enforcement of Restrictive Covenant or Lease Provision Limiting the Keeping of Animals or Pets on Residential Property, 93 Am. Jur. Trials 193 • § 11. Express covenants prohibiting or limiting keeping of animals and erection of structures • § 19. Lease provision restricting keeping of animals • Pit Bulldog Attack Litigation. 33 Am. Jur. Trials 195 • § 4.5. Knowledge of vicious propensities

38. American Jurisprudence Proof of Facts • Proof of Landlord’s Liability for Injury Inflicted by Tenant’s Dog, 85 Am. Jur. Proof of Facts 3d 1 • Plaintiff's Negligence, Provocation, or Assumption of Risk as Defense in Dogbite Case, 39 Am. Jur. Proof of Facts 3d 133

39. American JurisprudencePleadings and Practice Forms • Complaint, Petition, or Declaration – For Determination Whether Dog Should be Destroyed – By Party Bitten by Dog, 1C Am. Jur. Pl. & Pr. Forms Animals § 19 • Complaint, Petition, or Declaration – Liability Imposed Under “Dog Bite” Statute, 1C Am. Jur. Pl. & Pr. Forms Animals § 120 • Answer – Defense – Dog Bite – Trespass by Plaintiff, 1C Am. Jur. Pl. & Pr. Forms Animals § 127

40. American JurisprudencePleadings and Practice Forms • The American Jurisprudence Pleadings and Practice Forms were helpful because they assisted me in learning about the Rules and Law regarding dog bites. Additionally, the applicable forms could potential assist someone in representing themselves in court matters.

41. Causes of Action • Cause of Action Against Owner or Keeper of Domestic Animal to Recover for Personal Injuries Caused by Animal, 14 COA 685 • Cause of Action Against Owner, Keeper or Harborer of Domestic Animal to Recover for Personal Injuries Caused by Animal, 33 COA 2d 293

42. Wright’s Federal Practice • Statement of the Claim – Significance of “Claim for Relief,” 5 Fed. Prac. & Proc. Civ. 3d § 1216 • It has been commonly the case in the American jurisdictions that, in obedience to inherited rule, the pleadings are required to state all the essential factual elements of cause of action or defense. Exemplification of this is the code provision that the complaint shall contain “a statement of the facts constituting the cause of action.” Statement of these elements sometimes squares with the idea of notice to the opposite party; sometimes, however, it transcends that idea. The difference between the two things is readily apparent by reference to the classic common-law case of the biting dog. Here the elements of the cause of action are (1) the keeping of the animal by the defendant; (2) its propensity to bite mankind; (3) knowledge on the part of the defendant of the dog's vicious propensity; and (4) the injury to the plaintiff. To state a cause of action, therefore, would require a statement of each of the four elements. • Negligence Actions,10A Fed. Prac. & Proc. Civ. 3d § 2729 • Substantial fact issues existed as to whether the dog owners knew or should have known of any vicious or dangerous propensities on the part of the dog prior to the day the dog attacked the minor, precluding summary judgment in favor of the owners in an action to recover for personal injuries sustained by the minor.

43. Applicable Forms • American Jurisprudence Pleading and Practice Forms – Animals • V. Injuries By Animals • C. Domestic and Domesticated Animals • 3. Dogs • b. Forms § 112 - § 131

44. Practice Materials State Practice Materials

45. West’s Colorado Law Finder • Animals • Damages • Generally, West’s C.R.S.A. § 13-21-101 et seq. • Personal Injuries • Generally, C.J.S. Animals § 170 et. seq. • Dogs • Dangerous Dogs • Ownership, West’s C.R.S.A. § 18-9-204.5 • Personal Injuries, 7A CO Personal Injury Practice (Grund & Miller) § 36.1 et. seq.

46. West’s Colorado Law Finder • Through West’s Colorado Law Finder, I was able to coordinate my research between Colorado as well as Federal and General West Publications. Additionally, West’s Colorado Law Finder utilized KeyCites, which made it easy for me to find other documents that cite the document I was currently working with.

47. West’s Colorado Practice Series • Part VIII. Special Proceedings • Chapter 55. Fundamentals of Personal Injury Practice • § 55.8. Screening the case—Insurance and collection • Police officer bitten by dog that jumped from suspect's stopped vehicle not eligible for UM coverage under his own policy because dog bite did not “arise out of the operation or use” of suspect's vehicle. • Part IX. Real Estate Transactions • Chapter 70. Drafting Leases • § 70.11. Drafting Leases — Tenant's Intended Use • Under premises liability statute, landlord not liable for dog bite injuries to tenant's guest where (1) landlord retained no right to rescind his agreement that tenants could have dog on property, and (2) landlord not aware dog had vicious propensities before leasing.

48. Colorado Law Annotated • KFC 1880.P75 (2006) • Animals – Not Applicable

49. Practice Materials Other Practice Materials

50. Jury Instructions • Colo. Jury Instr., Civil 13:1 (4th ed.) (Domestic Animals – Dangerous or Vicious Tendencies – Elements of Liability) • Colo. Jury Instr., Civil 13:3 (4th ed.) (Serious Bodily Injury or Death Resulting from Being Bitten by a Dog – Elements of Liability)