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Commentary: Bermudez v. Hanan

John Ensminger


Animal Legal & Historical Center
Publish Date:
2013
Place of Publication: Michigan State University College of Law
Printable Version

Commentary: Bermudez v. Hanan

 

Bermudez v. Hanan, 2013 N.Y. Misc. LEXIS 4397, 2013 NY Slip Op 51610(U) (September 13, 2013)

 

A Therapy Dog Bites at Home:  Liability Avoided, but Must Therapy Work Come to an End?

Laura Bermudez went to a gathering of about 15 people at the home of Joseph Hanan on February 10, 2010.  Bermudez mingled with other guests for a time then entered the living room area on the first floor where a large dog was sitting on the couch alone.  She leaned over to talk to the dog but “he jumped up and bit her on the face causing serious injuries to the left side and right side of her chin.”  She testified that she received 30 stitches and had to undergo plastic surgery to correct the scars from the bites.  Photographs from before the plastic surgery showed “deep and gaping lacerations to the right and left side of the chin.”

Bermudez sued for $6,390.04, consisting of medical bills and lost wages, but to qualify the action for Small Claims Court, sought only $5,000.  She had no medical coverage at the time of the bite.  She also asserted that the bite made her afraid of dogs and that she felt she would not overcome this for the rest of her life.

The dog belonged to Kara McEneany, Hanan’s partner, but Hanan was the principal trainer of the dog and the one Bermudez sued. (The choice of defendants was not discussed by the court.)  Hanan was not in the living room at the time of the bite.  He testified that he had trained Chino, a German shepherd mix, for nearly ten years and that there had never been any incident in which the dog bit or injured anyone or destroyed any property.  In July 2008, Chino had been certified by the Good Dog Foundation to visit healthcare facilities as a therapy dog.  Hanan was a visiting volunteer for several non-profit agencies and participated in animal-assisted therapy.  Hanan produced photographs and other memorabilia of Chino’s experiences at the Brooklyn Development Center for Disabled Men and other facilities. Chino had been recertified annually.  The court stated:

[Hanan] testified that the dog goes to hospitals throughout the city of New York. He also visits and comforts senior citizens that are frail and have Alzheimer's disease. More significant, when the dog is brought to these facilities, he is always allowed to roam freely from patient room to room and other public areas, and freely interacts with the residents in the senior citizens centers as well as the Adult Development Center for the disabled.

Some therapy dog groups, and most facilities, insist that handlers remain with dogs at all times and keep them leashed.  In responding to a request for information regarding this case, the Good Dog Foundation stated:

[O]n a Good Dog visit, a dog is never allowed to “roam freely.” Our training and rules require that a dog always be on-leash and under the control and supervision of its certified handler at all times. This not only allows the handler to ensure the dog does not pose a risk of injury to the people it is visiting (either by jumping or bumping into someone) but the on-leash requirement also ensures the handler will notice any signs of stress or discomfort in the dog. We certify the team together and not just a dog. This is because a handler is trained to be on the constant lookout for any signs of stress from their dog while at a facility on an official therapy dog visit. Good Dog’s certification status cannot attest to what an unsupervised, unleashed dog may or may not do in a non-animal-assisted therapy setting. As such, the circumstances that led to this injury (a dog left alone in a different room and approached by a stranger) have never and would never occur on an official Good Dog visit.

There was additional evidence, including emails, attesting to the gentle nature of the dog in many environments including parties, where he was apparently often petted and allowed to lick the faces and hands of guests.  McEneany and Hanan stated that they had never observed Chino bark.  He was used in three films, and was described as easily taking direction.  He was frequently left with other people when McEneany and Hanan needed, and they testified that they had never been notified of any problems.  He was a popular dog in their apartment complex.

[Hanan] also indicated that he has had many parties at his home and there were never any incidents with Chino. During the time that there were parties at the house, music was playing, the lights were often dim and the dog was permitted to roam freely among his guests. The Defendant as well as his corroborating witness also testified that despite the presence of many people going in and out of the first floor of the building, they never observed the dog bark or even jump up on any of the guests entering and leaving their home.

Bermudez, in rebuttal, said the dog had nipped at her feet and those of other guests as he roamed through the party, though this was not supported by other witnesses and disputed at trial by McEneany and Hanan.

New York Dog Bite Law

The Civil Court stated that for “more than 188 years, the law of this state has been that the owner of a domesticated animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm that the animal causes as a result of those propensities.”  Two elements must be established to hold a pet owner liable for damages.

  1. The animal must have “vicious propensities,” defined as the “propensity to do any act that might endanger the safety of the persons and properties of others in a given situation.”  Dickson v. McCoy, 39 NY 400 (1868)
  2. The owner must have knowledge of those vicious propensities, which may be established by proof of a prior act of a similar kind of which the owner had notice.

Vicious propensities can involve behavior other than biting, including growling, snapping, or bearing of teeth.  Also, the owner’s restraining of a dog, and the manner of restraint used, may indicate knowledge of vicious propensities.  In Collier v. Zambito, 1 NY3d 444, 807 N.E.2d 254 (2004), where the owner of a dog that was barking at a boy invited the boy to come near so the dog could smell him, the owner held the dog on a leash but the dog nevertheless lunged and bit the boy’s face.  The New York Appellate Division held that the fact that the dog had been kept enclosed and that it had barked at people was not evidence of vicious propensities when there was no evidence that the dog’s behavior had ever been threatening or menacing.  That court had said: “Indeed, the dog’s actions—barking and running around—are consistent with normal canine behavior.  Barking and running around are what dogs do.”

A case involving a police dog, Thurber v. Apmann, 91 AD3d 1257, 936 N.Y.S.2d 789 (2012), held that the formal training a dog received as a police dog did not constitute evidence of viciousness or provide the handler with notice of viciousness.  There, the dog had received handler protection training, but the court chose to emphasize the fact that, as for explosives detection the dog had been trained to give a passive alert. Arguably, if training a police dog receives is not evidence of viciousness, then training a therapy dog receives should perhaps not, given the different contexts involved, be evidence of gentleness.

The court noted that some states—Arizona, California, Florida, Michigan, Minnesota, Montana, Nebraska, and New Jersey—have adopted a strict liability approach, under which dog owners, as opposed to innocent victims, bear the risk of dog ownership and injuries caused by a dog. New York, however, has not adopted this approach.

End of a Therapy Dog’s Career

The court found the fact that Chino was a therapy dog supported Hanan’s argument that he had no knowledge of Chino having any vicious propensities:

The dog has been certified by the Good Dog Foundation since 2008 and was validly certified through and including the date of the trial in this matter. The photographic evidence further demonstrates that the dog had a loving and warm relationship with many types of individuals including the emotionally disabled, and the physically and mentally handicapped.  The dog also visits hospitals and nursing homes as a therapy dog.  The photographic evidence and testimonial evidence further corroborates the proof submitted by the Defendant that Chino had never attacked or injured any person or other animal and had always demonstrated good temperament. The fact that the dog roams free at these institutions and was held, petted and played with my men and women alike is also ample evidence that the Defendant had no knowledge that the dog posed any danger to anyone.

The court had its own theory as to why Chino had attacked Bermudez:

It is the opinion of this court that this incident could have been precipitated by the ‘territorial’ instinct of the dog under these facts. Although this court will not engage in speculation and conjecture, Chino may have perceived the Claimant's attempt to speak to him by approaching him single-handedly and leaning her face into his, as a "territorial invasion" which may have provoked the attack.

The complaint was dismissed.

Should Chino Stop Working as a Therapy Dog?

The author belongs to a different national therapy dog organization than the one involved here.  The author’s organization includes the following language on its annual renewal application, which members must sign:

“I agree to inform [the organization] immediately in writing if my dog(s) shows any form of aggressive behavior toward other dogs or persons or any change of temperament and to stop visiting with my dog(s) in a Therapy Dog capacity until the matter has been resolved.”

The Good Dog Foundation, in response to a query, stated:

[W]e require that every therapy dog handler report any incidents of violence or perceived aggression that involve their dog, whether or not their dog is the aggressor. It is extremely troubling to learn that the handler in this case knew Chino was involved in a serious injury in 2010, albeit in a private setting, but failed to notify the Good Dog office, and still has not notified us to date (the certification expired in 2012 and the handler did not act to renew it). Had Good Dog learned of this incident, regardless of the fault of the dog, Chino’s certification would have been revoked effective the date of the incident and all therapy dog visiting would have ceased immediately. The safety of our teams and the populations we serve is our number one priority, and we always err on the side of caution and do not allow any team with a perceived aggressive act to continue visiting and hold certification status.

The author would recommend this approach from a liability perspective in any case.  New York case law describes fact situations in determining liability, but has no automatic exemption for context in determining whether a dog has vicious propensities.  All major therapy dog organizations provide coverage for certified member teams, usually at least $1 million per incident.  An administrator of any therapy dog organization would probably not want to have to make that argument to the organization’s insurance carrier if a dog with a bite on its record continued to visit facilities and another bite occurred during a therapy dog visitation, resulting in a substantial claim.

This does not quite answer the question of whether Chino should stop making therapy dog visitations, as one might suggest that a dog that was threatened and defending its territory is not in a situation similar to a dog visiting a hospital where it is unlikely to feel particularly territorial.  The circumstances of the bite are only described superficially, and the dog may have been provoked or teased in some manner that an unusual response was elicited.  Nevertheless, even if the handler were confident that this would never happen again, the risks involved are too great to consider allowing the animal to make continued therapy visitations.

The Good Dog Foundation advised me that they had not been informed about the incident, contrary to their official policy, but that Chino stopped working in 2012 and is no longer certified.

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