Latham & Watkins partner Michelle Kelban-Carteron is in an intense litigation with the board of managers of her Chelsea Modern condo over what her counsel says is “dog racism” in a ban on pit bulls and “other potentially dangerous dogs.” The lawsuit by the board cites instances of Luna lunging at residents and barking at other dogs in an aggressive manner. As a result, they seek an injunction and declaration that Kelban-Carteron has breached her contract and violated the associational rules of the condo. It also alleges the creation of a nuisance.
Kelban-Carteron’s counsel objects that “[b]ecause of [the dog’s] breed, they’re going after it.” She maintains that Luna was adopted as a service dog for her husband after a bicycle accident. However, Luna was not certified as a service animal until after a critical incident caught on videotape.
In the incident, Luna attacked a neighbors small Havanese mix named Kinje. Kinje was previously praised by Katie Couric for her work with pediatric cancer patients. Luna is shown suddenly attacking Kinje and biting her in the face. The videotape was placed into evidence in the Manhattan Supreme Court.
After the board moved to remove Luna, Kelban-Carteon moved to certify Luna as a service animal giving her husband “emotional support.” She then argued that, as a service animal, she could not be evicted under the ban on pit bulls.
Kinje’s caretaker, Jo Lynn Sorenson, said that the husband, Carteron slammed her against a car in an effort to pull Luna off Kinje while he allegedly objected that none of this was his dog’s fault. Kinje required extensive medical assistance and the medical bill was over $1,000.
There could be a strong case for a tort lawsuit by Kinje’s owner as well as her caretaker. With the affidavits of neighbors and the incident with Kinje, there is a strong case to arguing that Luna had a known vicious propensity.
It is often said that every dog gets one free bite in American torts. However, the “one free bite rule” is a commonly misunderstood torts doctrine — suggesting that you are not subject to strict liability until after the first time your dog bites someone. In fact, you are subject to strict liability whenever you know or have reason to know of the vicious propensity of your animal. That can be satisfied by conduct such as frequent snapping or aggressive behavior. Indeed, that was the evidence used in the famous case from San Francisco involving lawyers and dog owners Marjorie Knoller and Robert Noel. They were found both criminally and civilly liable after their two Presa Canario dogs killed apartment neighbor Diane Whipple. Various neighbors complained about the dogs, which the couple inherited from a convict. Paul “Cornfed” Schneider is a reputed member of the Aryan Brotherhood and was planning a guard-dog business to be called “Dog-O-War.” Three days after Whipple’s death, the couple adopted Schneider as their son. The dogs had not bitten anyone but were known to be aggressive.
In New York, the Agriculture & Markets Law, Section 121, imposes strict liability on the “owner or lawful custodian” of a “dangerous dog.” This includes medical costs resulting from “injury” caused by such dog to a person, “companion animal,” farm animal or “domestic animal.” A “dangerous dog” is defined as an animal that “without justification” either (a) attacks and injures or kills a person, “companion animal,” farm animal or “domestic animal” or (b) “behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death” to one or more of the foregoing.
As for the condo lawsuit, they again seem on a solid footing against the couple. The belated certification does not alter the clear rule against pit bulls. There is no bar on a service animal but rather this type of service animal. The timing of the certification and the selection of a barred breed should weigh heavily on the decision of the court.
What do you think?
“In fact, you are subject to strict liability whenever you know or have reason to know of the vicious propensity of your animal.”
That is a State specific thing. In Indiana, no matter the breed, a plaintiff has the burden to prove negligence, greater than 50% by the human who has care custody and control of the dog. The “dangerous propensity” of a breed is bogus and juries don’t give it much weight at all. Besides, “dangerous breeds” are a matter of opinion and change year to year – apparently on a whim by some vague source. Some years it is a Chow, a German Shepherd, a Rottweiler. For 2017, it is the Great Dane. A Great Dane !??
I can’t recall a year where the “pit bull” has ever topped the list.
It’s called specieism.
Dog breeds are not species according to zoology. Rather, they are akin to races.
It’s not speciesism, it’s the potential for injury. The salient point regarding pit bulls, rottweilers, tigers, lions, etc. is jaw pressure. It’s impossible to detect the thinking and intent of any animal. It is possible to know absolutely which ones are capable of inflicting mortal wounds. Pit bulls et al. are.
Gee, I wonder why people hate lawyers? And NYC even had to pass a law forbidding landlords to “discriminate” against them? It’s an enigma.
Pit Bulls from fighting lines have been selectively bred for what amounts to psychotic behavior for many generations. That makes any APBT potentially dangerous in a way that, say, a reasonably healthy Labrador will never be. You tell me how you can tell if an APBT is descended from fighting lines. OTOH, Staffordshire Terriers and APBT’s were once the same breed, but the bloodlines began to be separated about 100 years ago when the former were accepted by the AKC. Staffies look more or less the same as Pits, but the long separation of the bloodlines and the fact that their breeders are selecting for show dogs, not fighting dogs, means they are probably essentially harmless.
What organization certified this dog? I have years of experience with animal assisted therapy with my Portuguese Water Dogs. They were certified by Therapy Dogs International and the Delta Society. Neither of those groups would have certified this dog.
I don’t think there is a federal certification for service dogs. One can have them individually licensed in certain areas, but that doesn’t seem to be a necessity. Am I correct?
No one has to “certify” of “register” a service animal. In fact, the owner can train the dog to perform the task.
That is absolutely correct. The ADA law is poorly written for there is no way for another to truly demonstrate whether or not a dog is a service dog. The airlines now a days ask what the service dog does, but cannot ask what the disability is.
Luna is not a service dog, she is an ESA or emotional support animal – they do not require certifications only a doctors note. They are not full service animals (cannot go everywhere) but it does allow the animal to live in apartments that ban animals and fly on planes.
Unless the law recently changed service dogs don’t need certification (from a trainer).
I have known about half dozen pit bulls and have found them to be gentle. In one instance I arrived at a family member’s home at 2am and was met at the door by two pit bulls and a chihuahua. I had been there several months before so the dogs knew me. In any case, the dogs positioned themselves so that I couldn’t enter the home until they were satisfied that I was ok. They showed no other aggressive behavior. Once they decided I was ok, they let me in. Well, the pit bulls did. The chihuahua, on the other hand, was having none of it. Even though the chihuahua was there during my previous visit, he exhibited very aggressive behavior. If I had pressed the issue I’m confident that the little nipper would have.
The behavior of the dog says more about the knowledge and behavior of its handler than anything else.
Almost forgot. I met two mastiffs recently. The younger puppy, still a large dog, wanted to play. Later I met the adult dog, 200 lbs. of dog. He was friendly enough, we said our “hello’s”. He also barked at me. It sounded like a friendly bark. Maybe he was trying to vocalize “hello, nice to meet you”. Someone who is afraid of dogs would undoubtedly have gone into a tizzing fright.
bettykath, One thing not to be forgotten is the size and the anatomy of the dog. While the chihuahua might nip and bite the pit bull can easily kill.
In some cases it’s the owner that should be forced into a school for behavioral adjustment. Dogs are animals. People come first. People first then pets, cars, etc. Is that so hard?
Issac, Absolutely “it’s the owner that should be forced into a school for behavioral adjustment.” and the Clintons should go to jail for behavior admustment.
There is no school appropriate for Trump, just jail.
Specify the charge and specify the proof (not the accusations).
You can’t and that is your problem. I understand your political persuasion, but right now Trump is President and you have to live and deal with it just like others had live with and deal with Obama… GWB etc. That is the nature of our country. If you can’t accept it then you are unable to accept a Constitutional Republic based on democratic principles.
Since the dog has been certified as a service animal, it does change things. I am not sure they can kick a service animal out.
Yes they can if the specific dog poses a threat to the health and safety of others, which it seems this one did.
https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
Abby Volin – thanks for the pdf on HUD guide lines on service animals. What was interesting was that animals for emotional support are not considered service animals under HUD guide lines. These people are going to have to get rid of the dog or move.
Emotional support animals are a type of assistance animals, which have different guidelines (no training necessary) and must be allowed in most types of housing. They would have a case except for the fact that the dog has attacked another so the board could argue Luna poses a specific threat to the health & safety of others. Breed has nothing to do with it.
and must be allowed in most types of housing.
‘Sez who?
DSS, Federal ADA law.
Paul, Service animal or not the master must have control over his animal. The master did not demonstrate such control.
Allan – my comment was that service animals fall under the reasonable accommodation section of the ADA. However, ’emotional’ service animals are not considered service animals under HUD guidelines. So, they are screwed either way. 🙂
Paul, I don’t disagree with you, but they should be screwed because they have an animal they are supposed to train and control, but they didn’t do either and don’t belong among civilized people. That pit bull was an “emotional” animal so much so that the animal attacked others. 🙂
Allan – for the sake of argument, let’s assume they re-trained the dog and it now ignores other dogs, like my dog does. Does it no qualify to stay in the condo?
I don’t think the condo has to give a second bite of the apple.
Assuming the facts are as stated, this is not likely to end well for Ms. Kelban-Carteron and Luna. Ms. Kelban-Carteron is correct that pet rules, including breed bans (even when they’re part of a municipal code), may not be applied to service and assistance animals. A 2013 HUD directive states “Breed, size, and weight limitations may not be applied to an assistance animal.”
However, if “the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation,” which appears to be the case when Luna attacked Kinje, the board has every right to remove Luna from the building. In this case, the approved reasonable accommodation (i.e., making an exception to the pet rules to allow an assistance animal of a banned breed) may be rescinded.
I highly recommend reading the 2013 HUD directive for a clear explanation of service and assistance animals.
https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
A 2013 HUD directive states “Breed, size, and weight limitations may not be applied to an assistance animal.”
Really? This lawyer is living in Section 8 housing?
Who acquires a friggin’ pit bull to live in a New York CIty condo? The smart money says a contentious, self-centered, and stupid person does this. Such a person also makes liberal use of the tort system. I’ll wager justice will be done should the counsel to the condo board manage to clean her clock. You live in an apartment in NYC, get a cat or get a small dog.
Keep all damn dogs out of stores!
( Of course legal and legitimate SERVICE ANIMALS are ok…stupid)
I don’t know what the law is in NY. But in here in CA, the dog would be deemed “dangerous”, which means she would need to be kept inside or in a secured, fenced location. When she left the property, such as on a walk, she would be required to wear a neon orange collar, a muzzle, and be secured on a 3 foot leash. If there were no further incidents during 3 years, then the dangerous dog designation would be removed.
The Dangerous Dog designation appears to be designed to stop a problem dog before it bites a human or kills another animal and has to be euthanized. Nothing bad happens to the dog designated dangerous; it’s really a wake up call that the owner has to take responsibility for the dog’s behavior and prevent it from hurting anyone else.
OK, that said, did the condo bar Pitties entirely, or just Luna?
I have never owned a Pittie, but I have known a great deal, house sat for a few, had a lot of friends who have owned them. They are often super sweet, especially with people they know. My neighbor has a pair of brindles who are escape artists, and they come down to my ranch and love on everyone. The pair are not dog aggressive nor do they bother the horses.
That said, mankind has been really successful in breeding characteristics and instincts to domesticated dogs. The Dachshund and terrier love to hunt rodents. The Maltese and Chihuahua love to be cuddled and carried everywhere. The Anatolian Shepherd is programmed by his genes to imprint upon whatever livestock he is raised with – chickens, turkeys, Alpacas, or whatever, and then guard his charges from predators. Golden Retrievers…wait for it…retrieve. I grew up with a Goldie and when I got tired of throwing one ball, she would bring me all the balls and toys she owned, one by one, to find the one that I might want to throw so please please please could she please retrieve it for me? Who hasn’t seen a Border Collie neurotically circling backyard trees or children, because they have such a strong herding instinct with no outlet? My own beloved Australian Cattle Dog absolutely cannot help himself in his desire to herd. If I don’t put him into a sit/stay when I lead my horse to the mounting block, my beloved dog will reach the point where he can’t take it anymore, and he will sneak up and softly put his mouth on my gelding’s fetlock, and then instinctively flatten to the ground, like he would to avoid a kick from cattle. His trigger is the horse is going somewhere, make the horse go, go horse go!!!! The behavior was bred into him, and it’s my responsibility to control him and give him an outlet like going for a run, agility, or guarding my hens. And the reason why he doesn’t hurt or scare the horse, but just touches him with his mouth to get him to move, is because he was bred to be a “soft biter” who did not panic the cattle instead of a “hard biter” – see the development of the breed. When a breed has been specifically bred for a purpose, the dogs instinctively seek that purpose. Pit bulls were bred for the blood sport of pit dog fighting, a blight on humanity and a dishonest chapter in the story of the canine loyalty that human kind has at times not deserved.
1908 New York Times article (http://query.nytimes.com/gst/abstract.html?res=9A00EFDA103EE233A25752C0A9679D946997D6CF&legacy=true)
The Pit Bull was bred for pit dog fighting. They quite often display dog aggression. It is a requirement to properly socialize and handle them, and they should not be left alone with children because if they do bite, their physiology and instinct is to cause massive damage. Frankly, no dog should be left alone with a small child, because the kid could hurt the dog and the dog could bite out of self defense. Chihuahuas nip often, too, but they do not have the scope for carnage that a pit bull does. That’s just reality.
In a similar vein, the Presa Canario is a type of mastiff that was deliberately developed for dog fighting, herding cattle and killing stray dogs as a side benefit. Presas require a specific type of owner, because they have strong fighting instincts like the pit bull, but they weigh over 100 pounds, so the average dog owner would just get dragged off his or her feet. Some aficionados will try to tell you the Presas are really just livestock guardians, but their instinct is for spontaneous dog fighting without signaling a warning.
Anyone who owns any dog, is responsible for the behavior of that dog. Sometimes, a dog’s breed creates special considerations for the owners. It is true that not every individual of a breed will exhibit the breed characteristics. There are failed herding dogs, Golden Retrievers who bite and won’t fetch, and slow Borzoi. But in general, you will see certain traits in any breed that was bred for a specific purpose, especially herding, fighting, or hunting dogs. It is unfair to buy a Border Collie if you live in an apartment and are gone 12 hours a day, and there are no sheep to keep him busy. Dogs who need jobs make destruction their job. Fighting breeds tend to be dog aggressive and sometimes human aggressive to strangers. And bad owners or breeders can ruin a pit bull. Some breeding lines are fighting lines, and some have been bred for pets, and it’s been generations since any dog of that line has set foot in a dog fight.
If you are going to own a gladiator breed, you need to become educated, train the dog or have him trained, have him temperament tested, and then it is your responsibility to keep everyone else and their kids and pets safe. If the dog bite was not the first sign of aggression, then that’s on the owner. The owner could have muzzled his pittie when they noticed aggression, and then Kinje wouldn’t have gotten hurt.
I don’t believe in banning entire breeds of dogs. I think it is more responsible to require that any fighting breed, or any dog showing aggression, have a temperament test if they want to live in a condo where everyone’s crowded together. That way, the sweet dogs get to stay and the problem dogs don’t, regardless of breed. Or perhaps they would be required to be muzzled. That said, to be honest, I wouldn’t be comfortable having my kid anywhere near a Presa Canario, leashed or not, specifically because they were bred to attack without warning, and they are too heavy for most owners to control. I wouldn’t expect one to pass a temperament test geared to gauge tolerance for living where a lot of strange people and dogs come and go.
Very good, Karen.
Was 1,400 words on this subject really necessary?
What’s the difference between one 1,400 word post and 1,400 one word posts? The latter gets recognized in the Turley frequent blog post hall of fame.
Olly – the only Hall of Fame is random. It occurs when the site hits a new clicks milestone and then the top ten busiest bloggers are listed for the last 1000 posts. Positions change all the time. 🙂
Darn it! I need to up my game.
Olly – problem is, it is like a fruit machine. You never know when it is going to pay off. 🙂
No — to state the obvious.
I know. I can’t edit. Sometimes I post these oeuvres, complete with spelling errors.
Well DSS, I, for one, enjoyed reading it. You could have skimmed it, or just scrolled past it, without counting the words.
In the last five or so years the “service animal” is becoming a concern to property owners and homeowners associations due to the increasing vagueness as to what actually constitutes such an animal. Previously it was mainly known breeds for specific physical conditions such as blindness or to help the disabled. But the emotional support animal is really pressing the limit. Some have used pigs and snakes that have caused much problem for owners and other tenants.
One issue is the lack of credibility among some of the certification agencies which are the service animal equivalent of diploma mills.
Some locations a landlord is able to require a prescription of sorts from a physician or other legitimate medical professional in order to prove a creature is a bona fide service animal.
The presence of any certification for a service animal does not relieve the owner/tenant of the responsibility to be liable for damage or nuisance caused by the animal. In this case, the alleged behavior of the dog is sufficient cause to bar the admission of the animal to the property. The standard for accommodation is “Reasonable Accommodation”. It is not reasonable to bring a vicious animal into a community dwelling where such an animal has shown aggression toward others.
I do not believe the defendants will prevail. Bring up the dog racism issue hurts their credibility.
But the emotional support animal is really pressing the limit.
Press the limit is what lawyers do. The only systemic sanction that lawyers receive is from other lawyers, so lawyer run wild unless some other lawyer’s ox is gored.
there is no such thing as dog racism. Case closed.
The individual must be able to maintain control over their dog whether it is a service dog or not. It appears that this dog was out of the owners control more than once. IMO that ensures the right of the condo to get rid of the dog whether or not it is a licensed service animal.
As far as banning a specific type of service dog I would think they could only do that for dogs being housed after the date the ban was enacted.
Affirmative Action for Cats!!!
Let’s really test the limits of this, and get a porcupine certified as a service animal – with privileges to ride public transportation.
Hahaha
The condo board wins.
Shoot the vicious dog. Make the owner pay quadruple damages plus medical fees plus court costs. Kick ’em out of the condo.
Well, I tend to believe the ill effects of Dog Racism a lot more than I believe the ill effects of People Racism. Because most pit bulls are nice dogs, unless their owners ruin them.
Squeeky Fromm
Girl Reporter
PBLM