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?