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Lawyer Lloyd

posted March 9th, 2013 by
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by Lloyd Benedict

Dear Lawyer Lloyd:

My dog recently had puppies. She had a total of four puppies and I found homes for two of them. I have found no takers for the littlest one and another female. My friend told me to call the Humane Society and the SPCA. I called, but they told me they currently did not have room to take them.

Another friend said I could take them to the pound, and they for sure would be adopted because they are cute and pure bred. I really do not want to take them to the shelter if there is a chance they would not get adopted and be put down instead. What do you think I should do? Thank you, Tulsa Puppies Need a Home

Dear Puppies: Thank you for your email and question. My simple answer to your question is keep looking for someone to responsibly adopt them, meaning the new owners will license and have them spayed as required by law, so as to break the cycle of legal non-compliance if that was the case with the mother of those puppies.

Hopefully, you are aware that Tulsa has a law that requires your dogs (and cats) to be spayed or neutered by the time they reach 6 months old. Failing to abide by that law could cost you a hefty fine of up to $200. You should also be aware that Tulsa has been experiencing a serious pet overpopulation problem for quite some time, and it’s getting worse.

There are many reasons for Tulsa’s pet overpopulation, but one of the primary reasons is pet owners’ noncompliance with our mandatory spay/neuter law and Tulsa’s lack of enforcement for such law.

To demonstrate how serious Tulsa’s pet overpopulation really is, one need not look further than the numbers according to the 2010 census there are approximately 164,000 households that make up Tulsa’s population of 390,000 people.

According to the Humane Society’s U.S. website, it is estimated that 39 percent own dogs, with the average dog owner owning 1.69 dogs. Regarding cats, their study states that 33 percent of households own at least one, with the average cat owner owning 2.2 cats.

Interestingly, their study states that of the dogs owned 78 percent are spayed or neutered and 88 percent for the cats. Personally, I think Tulsa’s spay/neuter rate is considerably less than the national average but have no data to support my assertion.

Now let’s do the math for Tulsa. For dogs, there are 164,000 households of which 39 percent own 1.69 dogs. So, 63,960 households, times 1.69 dogs equal 108,092 dogs. Now calculate the national average spay/neuter factor, and you see that there are 23,781 un-spayed or un-neutered dogs in Tulsa that are at risk for unwanted reproduction on any given day.

Using the same equation for cats, we arrive at a figure of 15,375 un-spayed or un-neutered cats in Tulsa for a combined total of 39,156 dogs and cats. in other words, that’s 14,000 dog-owning households and 6,495 cat-owning households, totaling 20,495 Tulsa households breaking the law.

To compound this problem further, one must also consider the reproduction factors of Tulsa’s estimated 39,156 un-spayed and un-neutered pets. According to the ASPCA’s website, the average number of litters a fertile cat can produce in one year is three, with an average of four to six kittens per litter. In seven years, one female cat and her offspring can theoretically produce 420,000 cats.

The average number of litters a fertile dog can produce in one year is two, having an average litter of four to six. In six years, one female dog and her offspring can theoretically produce 67,000 dogs. So, theoretically speaking, if we applied that reproduction equation to Tulsa’s un-spayed and un-neutered pets, then it doesn‘t take a genius with an Excel spreadsheet to figure out that Tulsa‘s pet overpopulation problem is completely out of control.

Although the solution to this problem may be complex and multi-faceted, a part of the solution may be easier than we realize. Simply put, stricter enforcement of Tulsa’s spay/neuter law would substantially reduce the pet overpopulation numbers. If we use the above figures, we can see that just enforcing 10 percent (roughly 2,000) more households to be spay/neuter compliant would result in considerably thousands less unwanted and unnecessary litters.

This begs the question, how can the city of Tulsa do a better job at enforcing its own mandatory spay/neuter law? in my opinion, the city of Tulsa’s solution to this matter thus far has been more reactive than proactive. That is, the city appears to mainly rely upon its animal Welfare Department (TAW) to deal with our pet overpopulation issue.

In 2012, almost 11,864 animals were logged in through TAW with only 36 percent of those animals being redeemed, adopted or rescued. This means the remaining 7,472 animals were euthanized. It is quite clear that Tulsa’s citizens and animal rescuers cannot adopt enough dogs and cats from TAW to solve the problem alone under Tulsa’s reactive approach.

Instead, the city of Tulsa needs to address this matter in a proactive approach. For example, there are many cities in the U.S. that have implemented cost-effective and result-driven enforcement policies of their spay/neuter laws that have seen significant reductions in pet overpopulation numbers

Tulsa should study those cities and adopt the successful policies. Tulsa also needs better public education and communication in this area to promote the low cost spay/neuter programs throughout our city that offer low cost services for low income households.

But most effective of all, nothing says “get compliant” more than getting slapped with a $200 ticket if you do not become compliant within 30 days after receiving the citation. after all, the more fines collected the more money that can be applied to spay/ neuter enforcement efforts.

Editor’s Note:

If you live in the City of Tulsa and would like for the City to enforce its existing spay/neuter laws, you can sign an online petition at: http://mytulsalive.biz/onlineSignup/spayneuter/Petition

Lawyer Lloyd

posted September 16th, 2012 by
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by Lloyd Benedict

Dear Lawyer Lloyd,

Q: Yesterday, I took my 3-yearold dog to a vet for an eye infection. The vet told me that my dog had to be neutered and have a rabies vaccination and be licensed, and that I was breaking the law if I did not have that done then. I reluctantly agreed and ended up paying a vet bill of $265 when it would have only been around $65 for the eye infection appointment. What can I do about this? Should I report the vet? Are my constitutional rights being violated here because my dog is my property, and how can anyone tell me how to handle my property?

Sincerely,

T-Party Tammy

Tulsa

 

Dear T-Party,

A: Really? Good grief; what planet are you from? There is no need to research what our Founding Fathers wrote with their quill pens concerning pet laws, as Tulsa has been kind enough to easily explain everything in their Ordinances. As such, you should take careful note that it is unlawful in Tulsa to own any dog or cat over 4 months old, unless such dog or cat has a current vaccination against rabies and is licensed. A license for one year, which requires a one-year rabies vaccination, is $3.

Alternatively, Tulsa allows you to obtain a three-year license for $9 ($3 per year) as long as your pet receives a three-year rabies vaccination. A violation of this Ordinance could cost you a $75 fine per each unlicensed dog or cat and another $75 fine for each that is unvaccinated.

You should also take note that Tulsa law requires every pet owner to attach a current license tag, for the animal, to collars or harnesses worn by his or her dogs or cats unless the dog or cat is permanently and uniquely identified with a microchip implant or tattoo. Violators of this offense can be fined $200.

Furthermore, it is unlawful to harbor, keep or possess a dog or cat over the age of 6 months, which has not been spayed or neutered unless the owner has secured a hobbyist exemption permit. In the event an owner of a dog or cat over the age of 6 months is unable to produce a current license or license tag for his dog or cat, a rebuttable presumption is created that the dog or cat has not been spayed or neutered. Every person violating this law shall be guilty of an offense and, upon conviction, shall be punished by a fine not exceeding $200, excluding costs, fees and assessments.

The way I see it, that vet saved you from receiving a fine of $475, not to mention the cost you would have incurred if your dog was impounded. If I were you, I would call that vet and thank him for doing the right thing, and stop using your warped sense of politics to dodge your lawful obligations and responsibilities as a pet owner.

Respectfully,

Lloyd K. Benedict

Lawyer Lloyd

posted July 15th, 2012 by
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by Lloyd Benedict

Dear Lawyer Lloyd,

I am the owner of a well-behaved Chow named “Sandy.” She is 5 years old, and I have owned her since she was a puppy. She has never shown any aggressive be­havior and is just a big softy. In fact, my husband and I have a running joke that if a burglar ever breaks into our house, all Sandy could do is lick him to death. Any­way, we just bought a new house a year or so ago, and our meter is in our back yard where the meter reader cannot see it just by looking over the fence.

 

Since we moved in, the meter reader has had to come into our yard. Sandy hap­pened to be in the yard during a reading, and the meter reader must have spooked her because she chased him out of the yard. Apparently, the meter guy hurt himself getting out of our yard. Now, a year later, it is my un­derstanding that the meter guy filed for workers’ compensation benefits and that the utility company’s insurance is de­manding that we now reimburse them for $15,000 of benefits they paid him. They sent a letter stating that we should contact our homeowner’s insurance to inform them of what is going on. We then contacted our agent and were told by the claim department that all injuries caused by our dog are not covered on our policy.

 

I am so mad that we were never told this when we bought our insurance pol­icy. I am also very upset with the utility company because when we had the utili­ties transferred we informed PSO that we had a “dog out,” so they were well aware that Sandy may occasionally be out back. They could have easily knocked on our door and asked me to put Sandy inside. Now we are facing bankruptcy for some­thing that could have been easily avoid­ed. What can we do?

 

Sincerely,

Sandy’s Bankrupt Parents

 

Dear Bankrupt:

I hear this story all too often, and I can assure you it is not uncommon for many insurance companies to exclude these situations. To make matters worse, in Oklahoma you are strictly liable for anything your pets do that cause bodily harm to a person or damage their property.

 

However, there are a few excep­tions to being strictly responsible. For instance, if your pet harms someone who is unlawfully on your property, then you owe no duty to the trespasser. Also, if your pet was provoked, then you may not be held responsible for any injuries caused. Unfortunately, a meter reader has a lawful right to be on your property at any time; therefore, you would not be able to argue that he was in any way trespassing.

 

Also, the fact that you had advised the utility company that you had a “dog out” may not be strong enough to support that you gave proper no­tice that there is a risk to them if they enter your property without asking you to secure your dog. That is to say, that although Oklahoma recognizes the “assumption of the risk” defense—in a nutshell, this means proving the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it—to success­fully use it, you must prove:

1. The meter reader knew of the riskand appreciated the degree of danger

2. That he had the opportunity toavoid the risk

3. That he acted voluntarily

4. That his action was the direct cause of his injury

However, in your description of the facts, it does not appear that Sandy has any history of being vicious, nor does it sound like the utility company has any knowledge of Sandy being vicious. The fact Sandy is a certain breed is simply not enough to automatically qualify her as a vicious dog even if you disclosed her breed to them.

 

As far as a workers’ compensation in­surance company demanding to be reim­bursed, that is perfectly within their legal rights. Oklahoma law allows the workers’ compensation insurer the right to “subro­gate” (or substitute) the injured worker’s right to sue you to recover whatever they pay, should the meter reader decide not to pursue the lawsuit himself.

 

All said, there is still a puzzling question that may be answered by learning more about the meter reader’s exact version, and not the workers’ compensation in­surer’s version, especially as it pertains to information about whether he provoked Sandy. For example, if Sandy has no his­tory of aggressive behavior, it is possible that the meter reader overreacted when he saw Sandy, presuming she was an ag­gressive Chow. You may need to learn more about how experienced the reader is, and what exactly happened. After all, if the meter reader felt so strongly that Sandy caused his injuries, then why didn’t he contact you first about his injuries in­stead a making a workers’ compensation claim? In any event, you need to consult with a lawyer and discuss the matter in detail before you throw in the towel.

Lloyd

Ask Lawyer Lloyd

posted May 15th, 2012 by
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by Lloyd Benedict

Dear Lawyer Lloyd:

My daughter and I were at a friend’s house when she, my 8-year-old daugh­ter, was severely bitten in the face by my friend’s dog. I have known this per­son for many years as we are close friends. During that time, she has had a few different dogs, and they have all been good, well-behaved dogs. How­ever, she had recently adopted a new dog.We had been around her new dog on many occasions, and it never dis­played any bad behavior. In fact, her dog was a very sweet-natured, playful, happy dog and never gave rise for any concern.

A couple of months ago, my friend and I decided to go shopping, and my daughter stayed with her daughters, along with my friend’s grandmother who lived there as well. About an hour later, I received a very disturbing phone call from the grandmother who in­formed me that my daughter had been playing with the dog in their backyard and had been bitten by the dog, but it did not look too bad. That was an un­derstatement!

My daughter underwent reconstruc­tive surgery on her ear and cheek, and I now have $12,000 in medical bills. I have been told by my friend’s homeowner’s insurance company that her policy does not cover injuries sustained from ani­mals. I do not have that kind of money or health insurance to cover these bills. My friend feels horrible for my daughter and has no real money to pay toward the medical bills either. I have talked with a few attorneys who have all in­formed me that my friend is 100 per­cent responsible. However, if there is no insurance, I would not likely get the medical bills paid from my friend (if she, also, has no money). I really do not wish to sue my friend, as I feel she did not really do anything wrong. Any thoughts for a resolution?

Sincerely,

Loyal to a Fault, Tulsa

Dear Loyal:

I am so sorry to hear about this un­fortunate incident, and my heart goes out to your daughter. I also agree with what the other attorneys have told you. I have represented many folks for dog bite injuries, and there are a few cases that are simply not cov­ered by insurance. The uninsured cases seem to be more difficult to recover damages; however, recovering through garnishment can be effective in certain cases. But if I understand correctly, you do not wish to go that route, as garnishment is an adverse lawsuit.

One possible solution you may wish to consider is what I recommended to a person who recently called me. The caller’s dog bite case had almost the same facts as yours, except the dog was owned by her sister. The caller was adamant that she did not want to file a lawsuit against her sister and was looking for another alternative. After learning that her sister was, in fact, the homeowner and that her insurance did not cover the incident, I inquired as to whether the sister would be willing to:

1. Sign an agreement with the hos­pital and doctors that she would accept 100 percent responsibility for the medical bills and make pay­ment arrangements (assuming the hospital and doctors agree as well).And/Or

2. Allow her to place a Jointly Agreed Judgment Lien against her house, so when, and if, the sister’s house sells, then she would be paid for her dam­ages from the remaining equity in the home (if any). If agreed, that Judg­ment could also be for more than just the medical bills, such as pain and suffering, etc… And, although, tech­nically, getting this Judgment is a lawsuit, if the matter is jointly agreed, then it should be a quick and inex­pensive process.

I never heard back from the caller again, so I am not certain how the mat­ter worked out, but I do not see why these options would not work for you in light of the fact that you do not wish to pursue the matter through other legal means.

Best Regards, Lloyd

Lawyer Lloyd

posted March 15th, 2012 by
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by Lloyd Benedict

Dear Lawyer Lloyd:

 Can I call 911 for my pet? For instance, what if my dog swallows a tennis ball, but it gets stuck in his throat and I panic. Can I call 911, or would I be “in trouble” for using that service for a pet? What would be the best thing to do

I saw a story on television years ago about this very thing and the girl threw the dog in the car and was hysterically driving to the animal E.R., but came upon a fire station and ran in screaming. The firemen jumped in to help and did the Heimlich on the dog, and it survived.

Thank you,

JoAnne from Tulsa

Dear JoAnne:

 The technical legal answer to your question is “No way, Jose.” 911 is for emergencies that require response from police, fire, or emergency medical services for humans. In other words, no pet medical emergencies will be responded to by 911. According to the City of Tulsa website, persons should only call 9-1-1 to report a crime, fire, heart attack, other serious medical condition or injury, or any situation requiring the IMMEDIATE response of a FIRE TRUCK, AMBULANCE or LAW ENFORCEMENT VEHICLE. The site also points out that nearly half of the 2,000 calls answered daily by the 911 Center aren’t even for emergencies.

Some examples of non-emergency calls include: injured animals, dead animal pick-up, leash laws, legal questions, obtaining official police reports, jail-related questions, status of police investigations and changing smoke detector batteries, to name just a few.

However, there should be no confusion that 911 will absolutely respond to certain emergencies where animals are involved. For example, 911 will dispatch emergency responders for vicious dogs or a person being bitten or attacked, or otherwise injured by an animal. Another example where 911 would respond is when animals are running loose and are creating, or are about to create, a traffic hazard, along with calls involving animal cruelty in progress.

I have also discovered that the City of Tulsa appears to contradict itself on this issue. That is to say, if you go to another page on their website, specifically www.cityoftulsa.org/cityservices/ animal-welfare/information-services.aspx, it clearly states that “if you have an emergency, such as a vicious dog or an animal in distress, please call (918) 669-6280 or 911.”

Because of that contradiction, and to answer your question as to whether you can get in trouble for calling 911 if your animal is choking, I decided to contact Mr. Terry Baxter, the Interim Director of the City of Tulsa 911 Public Safety Communications. Mr. Baxter reviewed Tulsa’s website and is now recommending that the site be changed to remove their previous suggestion of calling 911 if an animal is in distress. However, they will leave the other suggested telephone number (918) 669-6280, which is Tulsa’s Non-Emergency number. Mr. Baxter also informed me that if a person was to currently call 911 with an animal emergency medical situation, that person would be transferred to the Non-Emergency number for assistance, and 911 would not offer advice nor send emergency responders.

Concerning whether a person could get in trouble for calling 911 with pet medical emergencies, Mr. Baxter said he or she would not per se get in trouble for an honest mistake, but added if that person routinely or intentionally calls with those situations, he or she could be prosecuted as that may be considered a crime. In fact, Oklahoma Statute Title 63 section 2819 states:

No person shall call 911 for the purpose of making a knowingly false alarm or complaint or reporting knowingly false information which could result in the dispatch of emergency services from any public agency… Nor shall any person call 911 for non-emergency or personal use. Any person violating the provisions of this section, upon conviction, shall be guilty of a misdemeanor punishable by a fine of not to exceed $500.00 and by an assessment for the resulting costs of any dispatching of emergency personnel and equipment for each such offense.

Mr. Baxter also offered a great suggestion that if you own a pet, then it would be helpful to put your chosen vet’s number, as well as a veterinary hospital phone number, on the refrigerator with all of the other applicable emergency numbers. 

Are Landlords Liable for their Tenant’s Pets?

posted January 15th, 2012 by
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TulsaPetsMagazine.com

By Lloyd Benedict

The fast answer is, typically, no; however, there may be a set of facts that prove otherwise. Specifically, the landlord may be responsible for his or her tenant’s dogs if it can be proven that the landlord knew the tenant had a dog, and the landlord also knew that the dog was known to be vicious. Since 1987, Oklahoma has had a series of dog attack cases where the victims have attempted to hold someone other than the actual dog owner responsible for their injuries. Obviously, these cases arise because the actual dog owner does not have insurance or assets compared to what a landlord may have.

Before you pass judgment on what you may think is a money hungry plaintiff, one must understand that when a victim has been mangled in an animal attack, the medical bills can add up to tens of thousands of dollars. In any event, careful analysis should be given to the history of the cases upon which the courts rely to address this issue.

To examine our courts’ thinking, the first case to discuss occurred in Tulsa in 1987, cited as Hampton v. Hammons. In Hampton, a 7-year-old neighbor climbed over a defective fence owned by the Hamptons. At that time, the Hamptons were temporarily taking care of their son’s dog who lived elsewhere. The child was not considered a trespasser as he had been in the Hamptons’ yard before, retrieving toys and such, but this time the child became entangled in the dog’s chain, resulting in an attack on the child.

In short, the Court held that there was evidence that the attack occurred without provocation, that the child was not trespassing, and that the Hamptons were still liable even though they were not the dog’s owner. The Court mainly ruled this way because of how Tulsa’s ordinance then defined “owner” and “vicious dog.” Specifically, in 1987, the Ordinance stated: “‘Owner’ shall mean and include the owner of any dog, cat, animal or domestic animal as herein defined and also every other person having the care or custody of or harboring, keeping or maintaining any dog, cat, animal or domestic animal.”

The Court also determined that the dog was considered a vicious dog because it was a breed that had the propensity to be vicious, and the method of it being chained with another dog fueled that propensity. Most importantly, the Court ultimately determined that “one who undertakes to control the dog’s actions, may be considered to be the owner within the meaning of the law.”

After the Hampton case, the question then became whether a Landlord would be considered the owner of a vicious dog within the meaning of the law. This theory was then tested in 1994, in Bishop v. Carroll. In Bishop, the defendant, Irene Carroll, purchased a house in Oklahoma City as a residence for her daughter, Renee. The daughter lived in the house a short time and then rented it to acquaintances, the VanScoys, who had three children and three Rottweilers, including the dog involved in the attack, Rowdy. Carroll did not visit the house after her daughter moved. The VanScoys sent their rental payments to Carroll, who was an absentee landlord, living in Washington, D.C.

The plaintiff, Karrlinda, was a threeyear- old who lived two houses down and across an intersection from the VanScoys. The child’s mother had observed the VanScoy children with dogs in their front yard, with no evidence of aggression by the dogs. Karrlinda was at the VanScoys’ house playing, and the dog, “Rowdy,” was chained in the back yard. Exactly what happened is not known. It is sufficient to state that the child did get into the back yard and was attacked by Rowdy. However, the Court was reluctant to hold the absentee landlord liable because the plaintiff could not prove that:

1. The attacking dog, “Rowdy,” was of a vicious breed;

2. Carroll’s daughter had any knowledge that the dog, Rowdy, was of a vicious propensity;

3. Carroll had any direct knowledge dogs were kept on the rental premises;

4. Carroll in any way contributed to the maintenance of the dog, Rowdy;

5. Carroll had or exercised any care, custody or control over the actions of the dog Rowdy; or

6. Carroll in any manner violated the Oklahoma City ordinance by “harboring” a vicious animal.

The Bishop case is a useful guide to see what factors the Court relied upon to determine whether a landlord could be held liable for his or her acts of the tenant’s animals. However, many landlords clearly know their tenants have pets. Despite such, the Bishop case shows that plaintiffs have a tough evidentiary challenge to prove the landlords knew that the dogs were vicious and exercised control over the dog.

That same year, the Court was again asked to address this issue in Robison v. Stokes. In Robinson, another Tulsa case, the lease actually allowed for pets; however, the evidence still showed that the landlord did not know the tenant had a pet, let alone a vicious one. Therefore, the Court would not hold the landlord responsible for the tenant’s dog attack.

This issue arose again in 2009, in Eastin v. Aggarwal. Like the Bishop case, a neighbor child was injured by a renter’s dog. The Court was again reluctant to hold the landlord liable for the tenant’s dog because of the following:

1. The landlord lease specifically barred tenants from keeping or harboring pets of any kind on the premises;

2. The landlord had no knowledge of any dog being harbored by the tenants;

3. The landlords were residing primarily outside of Oklahoma;

4. The landlords had not cared for, maintained, kept, harbored, possessed, controlled, or had custody of any vicious dog at the residential rental property;

5. The plaintiff testified she was not aware of any incidents in which the dog in question showed any signs of aggressiveness to another human being or animal;

6. Plaintiff was not aware of any reports or complaints made to any City of Tulsa authority, police agency or dog pound regarding the dog’s previous behavior;

7. Plaintiff was not aware of any facts that would suggest the landlord was aware of the existence of the dog in question;

8. Plaintiff testified that other than the occupants of the rental property, she was not aware of anyone else that had cared for, maintained, kept, harbored, possessed, controlled, or had custody of the dog in question.

In a recent 2010 Oklahoma Court decision, the same issue was again tested with Taylor v. Glenn. In that case, as like the others, it was proven that the lease prohibited dogs and that the landlord had no knowledge that the tenant was keeping a Pit Bull on the leased premises. Although the landlord only lived a few miles away, the Court refused to hold her liable for the victim’s damages caused by her tenant’s dog.

So, it appears Oklahoma Courts are not likely to hold an absentee landlord responsible for their tenant’s dogs. And despite other instances where the landlord knows of the tenant having a dog, it would still have to be proven that:

1. The landlord knew the dog was vicious;

2. The landlord had some type of control over the dog.TulsaPetsMagazine.com

One could argue that the landlord meets both of these elements if it is proven that he or she had knowledge the dog was vicious or the propensity to be vicious (knowing element) and failed to remove the dog from the premises (control element). As a word of caution, there could be a reason our appellate Courts have not had a case where the landlord knew of those elements. That may simply be because those cases settle with the insurance company and never make it to court.