Attacked by a Pit Bull. Injured and my dog died.

[lawisblind]

What is the name of your state (only U.S. law)? California

About a month ago I was walking my 18 pound dog on a leash. A 14 year old neighbor girl was walking a pit bull on a leash. Her dog broke free and attacked me and my dog. Neither of us was on our own property during the incident. I suffered injuries to my hands, elbow, knees and face. My dog died an hour later at the vet hospital. I then went to the ER for treatment to my injuries. I will likely have a permanent scar on my nose about the size of half a dime. It looks like I will have permanent numbness/nerve damage to one of my fingers.

Early on the owner of the dog agreed to pay my out of pocket expenses, but now they are refusing to do so. I consulted a few attorneys. Although they all say I have a good case, no one as of yet has wanted to take it because the defendants do not own their own home. I have witness statements, emergency room and other doctor bills, vet bills, the animal control report and personal property replacement receipts. I am putting together a small claim case and I have a few questions:

1. Should I send evidence with demand letter?

2. Should I name their landlord as a defendant?

3. If so, should I send their landlord the demand letter at same time? In a way this seems wise but I am wondering what will happen if he hires an attorney to defend himself.

4. How do I determine a reasonable amount for pain and suffering? I believe my justified expenses will be in the range of $2-5000. I don't know the ER bill yet. I read that there is some sort of multiplier times justifiable expenses that can be used as a rule of thumb.

I welcome your input but I ask you to be kind. There is a lot of raw emotion involved in this for me. I loved my dog very much, as dog owners do.

 

[quincy]

What is the name of your state (only U.S. law)? California

About a month ago I was walking my 18 pound dog on a leash. A 14 year old neighbor girl was walking a pit bull on a leash. Her dog broke free and attacked me and my dog. Neither of us was on our own property during the incident. I suffered injuries to my hands, elbow, knees and face. My dog died an hour later at the vet hospital. I then went to the ER for treatment to my injuries. I will likely have a permanent scar on my nose about the size of half a dime. It looks like I will have permanent numbness/nerve damage to one of my fingers.

Early on the owner of the dog agreed to pay my out of pocket expenses, but now they are refusing to do so. I consulted a few attorneys. Although they all say I have a good case, no one as of yet has wanted to take it because the defendants do not own their own home. I have witness statements, emergency room and other doctor bills, vet bills, the animal control report and personal property replacement receipts. I am putting together a small claim case and I have a few questions:

1. Should I send evidence with demand letter?

2. Should I name their landlord as a defendant?

3. If so, should I send their landlord the demand letter at same time? In a way this seems wise but I am wondering what will happen if he hires an attorney to defend himself.

4. How do I determine a reasonable amount for pain and suffering? I believe my justified expenses will be in the range of $2-5000. I don't know the ER bill yet. I read that there is some sort of multiplier times justifiable expenses that can be used as a rule of thumb.

I welcome your input but I ask you to be kind. There is a lot of raw emotion involved in this for me. I loved my dog very much, as dog owners do.

I am sorry for the loss of your dog. Losing a pet is always hard but it is especially so under the circumstances you describe.

You can send to the owner of the pit bull copies of your medical bills and your veterinary bills, along with a demand for dollars to cover your losses. Unless the landlord is the owner of the pit bull, I do not see any reason why he should be sent anything or named as a defendant in any lawsuit you decide to file.

You should not rely on the online multipliers to determine your damages. Damages are fact-specific.

Did you report the pit bull attack to the police when it happened (which is how animal control became involved)? What the result of the investigation?

 

[adjusterjack]

I welcome your input but I ask you to be kind. There is a lot of raw emotion involved in this for me. I loved my dog very much, as dog owners do.

Unfortunately, CA courts do not award monetary damages for emotional distress due to the death of a pet dog arising from the negligence of another.

Here's a recent (2012) case decision where the court awarded such damages for the intentional act of another but made it clear that an award due to negligence was not appropriate:

http://www.leagle.com/decision/In%20CACO%2020120831066/PLOTNIK%20v.%20MEIHAUS

California statutes hold a dog owner strictly liable for injuries to people:

California Civil Code section 3342.

(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.

There is additional information about dog bite liability at the following website. You will want to study that carefully and thoroughly:

https://dogbitelaw.com/statutory-strict-liability-state/california-dog-bite-law

Unfortunately, your dog is still considered property from the standpoint of collecting for the loss of the dog itself. However, you should be entitled to reimbursement of vet bills after the attack.

 

[quincy]

Here are two dog-bite cases out of California from 2016 that you might want to read through. The cases are not certified for publication.

Pang v. Estate of YANO, Cal:Court of Appeal, 2nd Appellate Dist. 8th Div, 2016: http://scholar.google.com/scholar_case?case=5120754640423665867&q=2016+dog+bites+from+pit+bulls&hl=en&as_sdt=4,5

You might be interested in Summary Judgment B. First Cause of Action for Strict Liability (ownership of dog) and section III The Second Cause of Action for Negligence (failure to exercise reasonable control over dog).

Magnan v. Ruiz, Cal: Court of Appeal, 3rd Appellate Dist, 2016: http://scholar.google.com/scholar_case?case=973560885634785504&q=2016+dog+bites+from+pit+bulls&hl=en&as_sdt=4,5

Here you might be interested in Background B. Jury Instructions.

One final link, this to California's dangerous dogs statutes, where you might want to scroll down to California's Penal Code, Crimes Against Public Health and Safety. Dog bite injuries can give rise to both misdemeanor and felony charges, depending on the facts. https://www.animallaw.info/statute/ca-dangerous-california-dangerous-dog-statutes

I recommend you continue to look for an attorney in your area to help you. Most attorneys will not limit their cases to homeowners - although if the pit bull owners are indigent, that can make a difference in the interest an attorney shows and that can make a difference in what you can expect to recover in the way of damages.

Good luck.

 

[coolmaltese]

So sorry for the loss of your dog...

 

[quincy]

... Unfortunately, your dog is still considered property from the standpoint of collecting for the loss of the dog itself. However, you should be entitled to reimbursement of vet bills after the attack.

It should probably be emphasized that California courts have recognized that animals are different than inanimate objects. Damages in animal injury/death cases are reflecting that recognition with awards over-and-above the market value of the animal. In that way, animals are no longer considered "property" in California.

For example, in Eliseo M artinez Jr, et al, v. Enrique Robledo, 210 Cal App 4th 384 (2012), and Margaret Workman v. Stephen E. Klause, et al, 147 Cal Rptr 3d 921, Justice Doi Todd said: "Given ... the reality that animals are living creatures, the usual standard of recovery for damaged personal property - market value - is inadequate when applied to injured pets."

Following is a link to the case where the Court held that "a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury."

http://scholar.google.com/scholar_case?case=11070392357291565099&q=animal+law+special+damages+awarded+above+market+value+&hl=en&as_sdt=4,5&as_ylo=2012

And, for easier access, following is a link to David Plotnik v. John Meihaus, California Court of Appeals, 4th Dist, Div 3 (2012) that was cited earlier, where the Court held that, "California law allows a pet owner to recover for mental suffering caused by another's intentional act that injures or kills his or her animal." The word "intentional" is important.

http://caselaw.findlaw.com/ca-court-of-appeal/1611024.html

 

[lawisblind]

Thank you very much. This is all very helpful.

Today I got a letter from an entity that is working for my HMO. They wish to find out if there is a way to recoup costs for my treatment from a third party. Naturally I will comply with there request for information. It seems to me that this will likely be a net benefit to my pursuit of some sort of justice, but it's hard to tell. What do you think?

 

[quincy]

Thank you very much. This is all very helpful.

Today I got a letter from an entity that is working for my HMO. They wish to find out if there is a way to recoup costs for my treatment from a third party. Naturally I will comply with there request for information. It seems to me that this will likely be a net benefit to my pursuit of some sort of justice, but it's hard to tell. What do you think?

Lawsuits are not designed so a plaintiff can walk away with more than what is deserved in the way of compensation based on the evidence, so I am not quite sure what you are referring to when you say "net benefit."

Are you thinking about compensation for pain and suffering or emotional distress?

You run into problems because the death of your dog and your own injuries were not caused by an intentional act on the part of the girl who was walking the pit bull.

 

[not2cleverRed]

Lawsuits are not designed so a plaintiff can walk away with more than what is deserved in the way of compensation based on the evidence, so I am not quite sure what you are referring to when you say "net benefit."

Are you thinking about compensation for pain and suffering or emotional distress?

You run into problems because the death of your dog was not caused by an intentional act on the part of the girl who was walking the pit bull.

Well, there was facial scarring and permanent nerve damage to OP's hand.

That can be inconvenient as a long term after effect for most people.

Even if you're a guy, you might worry about a dime size scar on your nose being noticeable. And most of us use our hands daily...

 

[quincy]

Well, there was facial scarring and permanent nerve damage to OP's hand.

That can be inconvenient as a long term after effect for most people.

Even if you're a guy, you might worry about a dime size scar on your nose being noticeable. And most of us use our hands daily...

True. But I wonder what lawisblind is referring to when he says "net benefit."

Another poster mentioned emotional distress over the loss of the dog, and the thread did go off on a bit of a dog-tangent, but for the injuries suffered by lawisblind, pain and suffering can be part of damages awarded over and above actual costs. The elements for emotional distress, however, do not appear to be met in what has been related.

For an emotional distress claim, there must be extreme and outrageous conduct by a defendant, with an intention of causing harm to the plaintiff (or with a reckless disregard for the probability of causing harm to the plaintiff) and the emotional distress suffered by the plaintiff must be severe and extreme.

If lawisblind wants to figure out a reasonable settlement demand amount, he would be smart to pay for an attorney in his area to personally review his injuries and his expenses to date (and what he might expect in the way of medical expenses in the future). There are attorneys who will work with pro se's on a part-time, as-needed basis, if lawisblind needs some help with his legal action but either believes he can handle the bulk of the work himself or he cannot entice an attorney to work for him on a contingency basis.

 

[not2cleverRed]

Yes, people focus on the "pain and suffering" of the emotional distress of losing an animal. And during the grieving process, at the moment, perhaps lawisblind is focusing on that loss.

For legal issues, lawisblind should focus on quantifiable losses - which s/he documented in the first post (receipts), as well as future costs related to her/his injuries, such as physical therapy or cosmetic surgery, and how the injuries may/may not affect her/his life. We are assuming lawisblind isn't a concert pianist or model, but there may be things that affect her/his ability to perform in her/his profession.

I would hope by "net benefit" lawisblind is hoping that it is impressed upon the other party the importance of being responsible for one's pet, and that by example others might learn. It does not sound like lawisblind's neighbor is taking responsibility for her actions (or lack thereof in restraining the dog).

 

[AdoptADog]

Thank you very much. This is all very helpful.

Today I got a letter from an entity that is working for my HMO. They wish to find out if there is a way to recoup costs for my treatment from a third party. Naturally I will comply with there request for information. It seems to me that this will likely be a net benefit to my pursuit of some sort of justice, but it's hard to tell. What do you think?

This is a common occurrence with certain types of medical appointments. Your insurance company wants to know if there is possible litigation with the injury for which they might be reimbursed. It is just a request for information.

I got one when I saw my doctor for back pain.

 

[quincy]

Yes, people focus on the "pain and suffering" of the emotional distress of losing an animal. And during the grieving process, at the moment, perhaps lawisblind is focusing on that loss.

Legally there is a difference between "pain and suffering" and "emotional distress," although pain and suffering awards will include the stress or distress that is part of any serious accident or injury.

For legal issues, lawisblind should focus on quantifiable losses - which s/he documented in the first post (receipts), as well as future costs related to her/his injuries, such as physical therapy or cosmetic surgery, and how the injuries may/may not affect her/his life. We are assuming lawisblind isn't a concert pianist or model, but there may be things that affect her/his ability to perform in her/his profession.

The actual damages - the out-of-pocket expenses - are generally not hard to prove. That is the easy part when figuring damages. You have medical and veterinarian receipts for treatments and, perhaps, evidence of lost wages. Pain and suffering damages will always be estimates that are based on the injury and how the injury affects the quality (or sometimes quantity) of life. The more severe the injury and the more permanent the damage from the injury, the greater the amount of money that can be demanded to compensate for the loss.

When working up a settlement demand, however, it generally requires both a careful examination by a medical expert and a careful examination by a legal expert. The worst thing that lawisblind can do is present to the dog owner an outrageously high demand that is out-of-line with the real injuries suffered. Here is where it can be important to remove the emotions of losing the dog from the equation.

I would hope by "net benefit" lawisblind is hoping that it is impressed upon the other party the importance of being responsible for one's pet, and that by example others might learn. It does not sound like lawisblind's neighbor is taking responsibility for her actions (or lack thereof in restraining the dog).

I am not sure it easily can be shown a lack of responsibility on the part of the dog owner (or negligence). The pit bull was on a leash. What is looked at is "reasonable" control. We do not know what lawisblind's dog did, if anything, to prompt the attack. We do not know if the 14-year-old was generally a capable dog-walker with no problems controlling the pit bull in the past. There is a lot we don't know.

If the dog owner "lawyers-up," all of this will be looked at when it comes to any pain and suffering damages demanded. It is harder to argue actual damages, because of the strict liability a dog owner has for injuries suffered to another by their dog's acts and actions. But, again, we do not know the circumstances that led to the attack or if there were any injuries to the girl or the pit bull. That can change the picture.

I recommend lawisblind sit down with an attorney in his area for a personal review to see what can be supported by evidence and what estimate for pain and suffering is reasonable based on the evidence. Again, some attorneys are flexible in fees (e.g., offering payment plans) and some attorneys will work on a part-time, as-needed basis for a client who does not want full representation.

 

[lawisblind]

Thank you for the replies. I haven't taken the opportunity to visit the forum in a few days. This is what I meant by "net benefit". I was wondering if this 3rd party, working on behalf of my HMO, might be filing a lawsuit, and if I could perhaps join in that suit as a plaintiff. Or, alternatively, if I could get any additional information from their fact finding. After talking to them, it appears that this is not the case.

I do have a half hour attorney consultation benefit through my employer, although I have been having trouble scheduling it. I plan to take a list of questions to that meeting.

Meanwhile, I have obtained 3 signed witness statements from neighbors that are consistent and in agreement with me. Among the facts stated in these is that my dog was on her leash during the entire incident.

Also, the HOA has gotten involved. We have a fairly active HOA with regular meetings and a functioning board. Our CC&R's contain language about pets and animals, including this statement:

"Pit Bulls or potentially vicious breeds of dogs are not recommended in this Community and will not be permitted on any Common Area located in the interior of the Community."

There is other language as well. The dog was being permitted to be in a common area, i.e., the mailboxes, when this occurred. I realize that CC&R's are not city or county laws, so I'm not sure how much this helps me.

Meanwhile, due to other language in the CC&R's, the HOA has sent out a demand to the homeowner, informing him that the dog will need to be removed from our community, or he will have to get a $1million insurance policy. My guess is that the tenants will ultimately decide to move as a result of this.

Which brings me to my next question. At this time I know their address. If they move, they might be more difficult to find. Should I send my demand letter sooner, rather than later, while I still know where they are? Even if I am less certain of some of my costs? For example, I haven't gotten the Statement of Billed Value from my HMO. But I am guessing the ER visit will turn out to be worth less than $1000.

I'll admit that I'm anxious to move forward with this as well. I feel like there is this giant weight on me right now, and that it will be somewhat alleviated after I send the demand letter.

Here is another question: Should I name the homeowner as a co-defendant? If I do, and the judge finds him not liable, does that void my entire case?

This is my running list of expenses:

1. Vet Bill: $800
2. Missed day of work: $486
3. Buying a new dog: $400
4. Medical approximately $700 (this could be off by a lot, waiting for info from HMO)
5. Pain and Suffering
A. Nose scar: ??? $5000? Get an estimate from a plastic surgeon?
B. Nerve damage: ??? $2000? It's on my right finger and I'm a teacher, but it's not affecting my work.
It just feels funny.

6. What am I forgetting?

Again, please comment on the pain and suffering amounts.

 

[quincy]

... I do have a half hour attorney consultation benefit through my employer, although I have been having trouble scheduling it. I plan to take a list of questions to that meeting.

It is smart for you to make a list of questions to ask the attorney. A half-hour consultation is not long so you do not want to waste any of this time discussing what is not necessary.

Also, you will want to check on the following: If the half-hour consultation is free, keep an eye on the time. It is not unusual for people to run over their allotted free half-hour time. Any time after the free half-hour can be charged at the attorney's regular rate (although the attorney should inform you of this at the beginning of your consultation).

Meanwhile, I have obtained 3 signed witness statements from neighbors that are consistent and in agreement with me. Among the facts stated in these is that my dog was on her leash during the entire incident.

Witnesses are good to have, especially if the parties in the legal action view the facts of the incident differently.

Also, the HOA has gotten involved ... "Pit Bulls or potentially vicious breeds of dogs are not recommended in this Community and will not be permitted on any Common Area located in the interior of the Community."

... The dog was being permitted to be in a common area, i.e., the mailboxes, when this occurred ...

Meanwhile, due to other language in the CC&R's, the HOA has sent out a demand to the homeowner, informing him that the dog will need to be removed from our community, or he will have to get a $1million insurance policy. My guess is that the tenants will ultimately decide to move as a result of this.

The homeowner may not have been aware his tenants had a pit bull. I imagine he didn't know. I think your guess is right, though, that the tenants will be encouraged by the homeowner to move and, if they do not leave before the end of their lease, their lease is unlikely to be renewed.

Which brings me to my next question. At this time I know their address. If they move, they might be more difficult to find. Should I send my demand letter sooner, rather than later, while I still know where they are? Even if I am less certain of some of my costs? For example, I haven't gotten the Statement of Billed Value from my HMO. But I am guessing the ER visit will turn out to be worth less than $1000.

You could send a demand letter, advising the dog owners/landlord/whoever that you are contemplating a lawsuit and will be contacting them in the future with a final accounting of expenses.

The post office and the homeowner/landlord should get a forwarding address for the tenants if they do move early.

I'll admit that I'm anxious to move forward with this as well. I feel like there is this giant weight on me right now, and that it will be somewhat alleviated after I send the demand letter.

Here is another question: Should I name the homeowner as a co-defendant? If I do, and the judge finds him not liable, does that void my entire case?

You can name the homeowner as co-defendant. The entire case is not void if one of the defendants named in the suit is dropped/dismissed from the case.

This is my running list of expenses:

1. Vet Bill: $800
2. Missed day of work: $486
3. Buying a new dog: $400
4. Medical approximately $700 (this could be off by a lot, waiting for info from HMO)
5. Pain and Suffering
A. Nose scar: ??? $5000? Get an estimate from a plastic surgeon?
B. Nerve damage: ??? $2000? It's on my right finger and I'm a teacher, but it's not affecting my work.
It just feels funny.

6. What am I forgetting?

Again, please comment on the pain and suffering amounts.

Leave out the "buying a new dog." That is not a part of your damages. I am happy you are planning to purchase a new dog, though. Absent things like attacking pit bulls, life with a dog is more fun.

You can generally collect on medical expenses, veterinarian expenses, loss of wages (missed days of work for medical treatment, for example), pain and suffering. You can get an estimate from a plastic surgeon if you feel the scarring will require plastic surgery. Any nerve damage would need to be supported by a medical examination and a medical expert's testimony.

For pain and suffering, this is an estimated amount. Go over with the attorney you see how to figure a reasonable estimate for pain and suffering based on your injuries, your dog's death, and the causes of both.

As to what you are forgetting: You are forgetting that we cannot really handle specifics on this forum.

We can offer legal information and we can offer general advice but we cannot advise you on the particulars of your case. For that you need to sit down with an attorney in your area for a personal review. The free consultation you are lining up is a good start. You can see what that attorney has to say and you can go from there.

Good luck.