'Pet Law and Custody' Chapter 9: Katrina, Katrina
“Think occasionally of the suffering of which you spare yourself the sight.” —Albert Schweitzer
In this chapter, we will take a close look at how ground operations worked following
Hurricane Katrina, what legal questions arose, what role the American Bar
Association played, and how carefully judicial officers struggled to make decisions
in ensuing pet custody disputes. The legal decisions following Hurricane Katrina
are emblematic of the shift in how companion animals are viewed in our legal
system.
HURRICANE KATRINA SEQUENCE OF EVENTS
Before Hurricane Katrina made landfall, Governor Kathleen Blanco had already
declared a state of emergency, forecasting that the Lake Pontchartrain levee near
New Orleans could be toppled or breached. For the first time in the history of the
city, Mayor Ray Nagin issued a mandatory evacuation order and the Federal Emergency
Management Agency (FEMA) was authorized “to identify, mobilize and provide
at its discretion, equipment and resources necessary to alleviate the impacts
of the emergency.”1 The National Weather Service warned that in the event of a
category four or five hurricane, most of the area would be uninhabitable for weeks,
if not longer. Eighty thousand people were stranded in the city, beyond those
trapped at the Superdome. There were also 50,000 stranded pets.
When the levee toppled and breached following the arrival of the category five
hurricane, President George W. Bush, Department of Homeland Security Secretary
Michael Chertoff, and FEMA Director Michael Brown were slow to comprehend
what was unfolding or to offer adequate assistance. Even when Brown ordered
1,000 employees to be deployed to help affected citizens, there was poor
communication between the White House and those in New Orleans. Looting escalated,
and people began to die at the Superdome. The National Guard finally arrived in
Louisiana, Mississippi, Alabama, and Florida.
Hurricane Katrina, perhaps more than any other event in American history, signified
the inability of local, state, and federal governments to function during a crisis.
2 What happened was not forgotten and set the stage for professionalizing the
command and control structures between local, state, and federal governments to
work together. The concept of the role of a first responder became popularized.
Plight of Animals
With regard to the plight of animals and those who loved or tried to rescue them,
news outlets showed them stranded on rooftops and trapped in dangerous waters.
The public saw the faces of frightened, starving, and dying animals. Humans were
risking their lives to protect their pets. The National Guard reported that an estimated
“30 to 40 percent of the people who refuse to leave the affected areas are
staying because they want to take care of their pets.”3
Nonprofits such as the Humane Society of the United States (HSUS) and Best
Friends Animal Society persevered against impossible odds. HSUS could barely
maintain the perimeter of its own operation, where it lacked space, food, water,
and support to take in countless numbers of rescued animals.4 HSUS’s rescue
operation was in jeopardy from day to day because land use was at issue. Beyond
understanding what law applied, there were widespread questions of who had the
authority to issue an order, how a valid order would be disseminated, and how the
order would be enforced.
Not only did Hurricane Katrina cause everyone to understand how we lacked
an effective command and control center structure in a disaster context, but also
we specifically recognized that companion animals had gained a new place in the
American value system. Companion animals were, for a majority of pet owners
along the Gulf Coast, more than just a piece of furniture. They were family.
News Stories
According to HSUS, 60 percent of the pet-owning public regarded their pets as
family members as the 2005 hurricane season approached.5 New York Newsday
reported that a man and his 16-year-old Dachshund Chihuahua mix survived for
five days in a tree;6 the rescuers saved the man but left his dog behind.
CNN showed an image of parents and their children on a roof with their family
dog; the rescuers took the humans but left the family dog.7 Anderson Cooper
interviewed a blind woman who refused to evacuate for ten days without her service
animal.8 Because of Cooper, the woman was evacuated with her seeing eye dog. A
little boy boarding a bus carrying a small white dog named Snowball began sobbing
“uncontrollably” and then sank to his knees, vomiting, when Snowball was
snatched from his arms by a police officer.9 The little boy was forced to board the
bus without Snowball.
While it was reported that some officers shot pets, others left food and water
for stranded pets. Other animals were taken out of harm’s way and turned over
to rescue groups such as HSUS, which had a contract with FEMA, or Best Friends
Animal Society, a group that had local land.
DIFFICULT QUESTIONS
During Hurricane Katrina, difficult questions about the rule of law included these:
? How can ownership be proven or determined?
? What hold period, if any, applies in a disaster context?
? Although most states have Good Samaritan laws pertaining to rescuing humans, do these laws apply to rescuing animals?10
? Can veterinarians act as Good Samaritans under the law when other members of the public cannot?
? When is it legal to break and enter into a home to save an animal?
? How would anyone know if permission for entry to a house had been granted by the animal’s owner?
? Is it legal to break windows in homes to implement feed and leave efforts?
? Once a pet is saved, can the pet be taken out of state?
? If the original owners locate their pet, can they get their pet back? Are decisions impacted by class?
? Can lost and found registries be required to divulge information?
? How do the original owner’s rights compare to the rights of those who newly bonded with the animal and paid for extraordinary veterinary care?11
? When can an animal be permanently re-homed?
? What if the new owners, pointing to evidence of scars, claim that the pet now in their care had been used for dog fighting or was otherwise neglected or cruelly treated?
? When, if ever, will the best interests of the animal be considered by the courts?
There were few readily available answers to these questions. The differences
from state to state were significant, in part due to Louisiana’s unique civil law system
with roots in the Napoleonic Code, while the other 49 states’ common law was
largely derivative from English Common Law. It was difficult to sort out when to
apply regular statutes and common laws and when to apply emergency laws and
orders offered by various branches of government.12
In this chapter, there is commentary on the difficulty of answering some of
the above questions. This commentary is presented to shed light on these difficult
questions, and the discussion also reveals that in this century, we are only at the
beginning of a long journey to sort out how we will decide the way companion
animals will be treated in both emergency contexts and American jurisprudence.
SAVING KATRINA ANIMALS
Pit Bulls and Pit Bull mixes were common in the Gulf States impacted by Hurricane
Katrina. When saved, many became known as “Katrina dogs.”13 Rescue groups, as
well as what have been called “rogue” groups who saved and received animals,
varied as to whether they had procedures in place to trace the origins of these animals
before they were transferred within their home state or out of state. Groups
differed as to whether their goal was for the animals to be later reunited with their
original owners or for them to stay with a foster or new owner. It was challenging to
determine what laws to apply to each individual situation when there were competing
legal claims.
Hold Periods
Where should rescue groups, with limited financial means and significant
communication problems, place found animals with great medical and emotional needs?
Did it make sense to apply the three-to-seven-day hold period, pursuant to a local
ordinance, when the owner was separated from an animal because of a mandatory
evacuation order and animal transport was circumscribed? Did hold periods make
sense in a disaster context when owners were unable to travel and animals might
die? One viewpoint was that after a certain date, the rescued animals could be sent
out of state and re-homed.14
There was also the matter of people looking for lost pets and whether the rescue
groups should or could disclose that they were alive and had been re-homed.
It was in this context of cultural upheaval and who belonged in a family that for the
first time in American history, the American Red Cross placed a link on its website
to PetFinder, a national animal database. This had the effect of some of the animals’
original owners being able to find their lost companion animals.
Who Owns Katrina Animals
Post-Katrina conflicts occurred between original pet owners and those who had
contractual relationships with rescue groups who spent extensive time and effort
to rescue and rehabilitate suffering animals. Many who received Katrina animals
viewed themselves as fosters, particularly if they were working under a contract
with Best Friends Animal Society. Other rescues believed they had title to a rescued
animal and, therefore, had the power to transfer title of the animal to another
rescue or to new owners. It was common for volunteers who went to the Gulf Coast
to come back with a Katrina animal.
Defining Crime
Another challenging aspect regarding the animals left behind in the wake of Katrina
was what those trying to save them were legally permitted to do. If a search and
rescue team saw a stray dog in a window, was it necessary that they find a sheriff
or other law enforcement official to assist with breaking the window to rescue the
dog? If not, were the rescuers involved in a trespass to chattels or were they committing
crimes?
Veterinary Services, Liability, and Workers’ Compensation
From a veterinary malpractice perspective, what was the requisite standard of care for
those providing veterinary services? Was the standard an emergency standard? Imagine
the conditions of the animals coming into these makeshift care
facilities. The challenges faced by individuals trying to help the protocols for not
hosing the dogs kept for fighting with water. The animals were dehydrated, starving,
and frightened; some had heartworm and other medic behavioral challenges attributable
to these turbulent times.
Who was to decide which animals could be saved and which animals euthanized?
Which veterinary ethics euthanasia standards applied? Could a decision to
euthanize lead to an intentional infliction of emotional distress claim by the original
owner? Could the animals be spayed or neutered and returned to the shelter so that they
could not reproduce and suffer, or cause a health hazard? The subject of spaying and
neutering was very contentious.
Could those working under the veterinarians claim negligent supervision during this
impossibly busy time if they were bitten, and therefore sue their supervisor or a
nonprofit? If helpers were bitten, could they file a workers’
compensation claim? If so, would the claim be federal or state? Would the state
where they came from or the state they were helping in? There were questions about
who would qualify for workers’ compensation if injured.15
Ground Operations
Much of the Gulf Coast was in a post-Katrina state of anarchy. Veterinarians needed
pharmaceuticals and painkillers. Drug Enforcement Agency laws applied to the dis-
semination of controlled substances, and perimeters needed for the rescue and
veterinary operations to protect pharmaceuticals and prevent saved animals from
disappearing were dodgy and difficult, if not dangerous, to secure. Because there was no
reliable infrastructure pertaining to the portability of veterinary license an emergency
context in 2005, volunteer veterinarians who came to the Gulf Coast
risked censure and liability for practicing without a license, or for practicing
outside of the scope of their practice area.
Lost and Found Animals
In the aftermath of Hurricane Katrina, rogue or unaffiliated volunteers sometimes
rescued animals that had already been found and returned to their homes, causing them
to be lost again. The removal of animals from their home state, without
adequate tracking procedures in place, escalated the challenges of family reunification.
Some animals crossed state lines without veterinary care and health certificates,
which created disease risks for both the animals and the public in the
receiving states, including the spread of heartworm. There were unscrupulous
volunteers who took trophy and valuable animals, justifying their takings by claiming
that the original owners did not try hard enough to find their lost animals. Some
volunteers advanced ownership arguments related to the animals’ best interests.16
Lawyers tried to assist with all of the above issues.17 To answer these questions,
lawyers not only needed to research the individual state law but also needed
to learn how those individual state laws would be impacted by emergency situations
and orders from authorities. American Bar Association (ABA) lawyers
worked on FAQs.
DEVELOPMENT OF ANIMAL LAW
During Hurricane Katrina’s multiple landfalls, both animal law and emergency
management law were in their infancy. The idea of teaching animal law according
to traditional legal categories such as criminal law, tort law, and constitutional
law had only recently been captured in animal law textbooks.18 City and state animal
law bar associations around the country were mostly in birthing stages and
included people with animal rights identities and equine lawyers who were not
sure they wanted to be associated with lawyers focused on animal protection.
Hurricane Katrina Case Law
Arguello v. Behmke19 was a significant Hurricane Katrina decision where the original
owner did everything possible to leave her dog at a shelter when she was
required to evacuate. She made every effort to find her Great Dane, Chopper. Consistent
with other court rulings that seem to be impacted by the behaviors of good
actors and bad actors, the court characterized the original owner’s placement of
Chopper at an animal shelter as a bailment. The New Jersey court said that title to
the chattel had not passed within the six-year statute of limitations in Louisiana.
Under Louisiana law, which draws from France’s Napoleonic Code, ownership of a
domestic animal cannot be achieved through occupancy.
The New Jersey court also stated that a pet has sentimental value and artificial
value. On one hand, the court recognized how the original owner’s search for
Chopper was akin to a search for a lost child, where “no one would question the
decision of the return,” while in the next breath, the court referred to Chopper as
chattel.
A Texas court went in the opposite direction in another post-Katrina case, Augillard
v. Madura,20 involving a black Cocker Spaniel called Jazz by one party and
Hope by the other. Rather than making a bailment claim, as described above, the
original owner asserted a property conversion claim and advanced an argument
based upon DNA testing. Forensic evidence showed that between DNA attributed
to Jazz and DNA attributed to Hope, there was an exact match on 17 DNA markers.
Although Hope’s owner asserted that the DNA evidence could have been tampered
with, the court was dismissive of this allegation as a mere surmise or suspicion.
Apart from how the court handled the forensic evidence, the court wrote about
the pet custody conflict in Note 15 of its opinion, which said:
We also note the obvious dissonance between the emotional investment at the heart of the human-pet relationship and the current legal system, which identifies this eleven-year-old cocker spaniel with chronic health problems as “property,” subject to suit for conversion and identified in terms of her economic worth. Given the parties’ considerable expenditure in this case, it goes without saying that Jazz’s significance as a cherished member of Augillard’s family—as well as her importance to her caretakers of almost three years, Tiffany Madura and Richard Toro—far exceeds her market value. Thus, while resolving this appeal in accordance with the applicable law governing ownership of chattel, we recognize that there are important non-economic interests at stake in this case. As one commentator has remarked,
People do not plan memorial services, or invest in serious medical treatment for their books or lawnmowers. They don’t plan to pay more in insurance premiums than the purchase price or replacement cost of the property they seek to protect. Individuals do not leave money for their bicycles in their wills, or seek visitation arrangements for their televisions upon the termination of their marriages.
Because the lower court had denied Augillard’s conversion claim based upon
evidence that was factually insufficient, the trial court decision was reversed and
the original owner prevailed on her conversion claim.
Pertinent Laws
Prior to Hurricane Katrina, the governing law in effect was the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act), passed in 1988 and
amended in 2000.21 It succeeded the Federal Civil Defense Act of 1950 and the
Disaster Relief Act of 1974. Because the Stafford Act did not address public animal
transport, many companion animals died following Hurricane Katrina. The Pets
Evacuation and Transportation Standards (PETS) Act was introduced in the House
on September 22, 2005 permitting pet transport.22 On April 5, 2006, a more expansive
companion bill was introduced in the Senate as S. 2548, which increased the scope
to more phases of emergency management and addressed funding concerns.23
American Bar Association Resolution
The ABA and its 400,000 members passed a resolution in January 2006 supporting
animal-related amendments to the Stafford Act.24 The ABA advocated that statutory
changes should include procedures for animal rescue, care, and management,
and the applicable resources. The ABA described the need for a mechanism to
determine authority among state and local governments and organizations during
rescue and shelter activities.25 Hurricane Katrina represented a pivotal point in the
development of animal law not only because of the swift passage of the PETS Act
by Congress but also because media coverage showed how much animals were
loved and that their owners would risk their lives to save them.26
Animal Disaster Relief Network
Following Hurricane Katrina, the ABA Animal Disaster Relief Network (ADRN) was
founded in order to educate lawyer and non-lawyer participants on how to address
urgent matters, to create a resource directory, to educate newcomers about disaster relief
basics, and to develop better laws.27 The ADRN also built relationships
between animal lawyers, veterinarians, and the U.S. Department of Agriculture.
Another significant effort was an alliance between the ADRN and the Animal
Legal Defense Fund, thanks to founder Joyce Tischler, to utilize both entities to
further develop law-based FAQs related to disaster issues.28
Select Legal Panel on Emergency Management Regarding Animals
From the ADRN, the ABA Tort Trial and Insurance Practice Section (TIPS) Select
Legal Panel on Emergency Management Regarding Animals emerged.29 There were
questions about whether animals fit into the legal category of surrendered, lost, or
abandoned property and if replevin actions would be effective. The panel sought
to create a useful law that would enable states to plan for legal issues related to
animals in crisis should future disasters occur.30 The panel created the “Model Act
Governing Standards for the Care and Disposition of Disaster Animals” in March
2006.31 Years later, following the support and input of an ABA special committee,
this model act was embraced as an ABA resolution. The passage of this resolution
influenced the passage of state laws.
Uniform Emergency Volunteer Health Practitioner’s Act
When the Uniform Law Commission (ULC) was crafting a new law for the portability
of medical licenses in a disaster context, veterinarians were at first excluded.
Barbara J. Gislason asked Chairman Raymond Pepe for a rehearing, and with the
cooperation of an equine veterinarian from the American Veterinary Medical
Association, was able to convince the ULC to revise its uniform laws to apply to
veterinary licenses. This uniform law, which Gislason helped revise, passed by the ULC
and the ABA, was called the Uniform Emergency Volunteer Health Practitioners Act.
32 The ULC also addressed the subject of liability and workers’ compensation claims.
AMERICAN RED CROSS
In the wake of Hurricane Katrina, human survivors knocked on American Red Cross
(ARC) doors, pets in tow, only to be turned away into the dark night, as the ARC
had a no-pets policy. In the aftermath of Hurricane Katrina, the ARC did an aboutface.
Since that time, the ARC has been committed to establishing co-location shelters
for companion animals.33 By the time Superstorm Sandy arrived in 2012, Jason
Ross was able to keep his rescue Boxer, Coulton, and Siamese cat, Coco, with
him at an ARC shelter.34 The ARC and the Ocean County Animal Response Team
(CART) realized that “people consider their pets an integral part of the family.”35
CART Supervisor Barbara Moser-Ward said, “People do not leave their pets. Pets
are their family.”36
FOOD DRIVES
The value of animals in religious and other institutions has also changed. Once,
there were food drives for humans only, but now, many food drives include animals,
and some are even specifically for animals. At one time, firefighters risked
their lives to save humans only. Now, firefighters receive additional training on
rescuing animals, and some carry special smaller masks designed to help pets
recover from smoke inhalation.37
BLESSING ANIMALS
It is well known, particularly as Catholics now have a pope called Pope Francis,
that the idea of blessing animals dates back at least to St. Francis of Assisi, who
lived from 1181 to 1226. The idea of animals being included in American religious
life seems to be growing and some bring companion animals to a house of worship
for a blessing once a year.
CONCLUSION
A little more than a century has passed between the 1897 Supreme Court decision
in Sentell v. New Orleans Carrollton Railroad Co.,38 a decision where dogs were
classified as only quasi-property, rather than a lower level of property, unless they
were killed or subdued. One hundred eight years later, when Hurricane Katrina
made landfall on the Gulf Coast, the American view about the value of dogs
changed. Not only did humans regard dogs as family members, but also humans
were willing to risk their lives to save them. For those who became lost, the public
embraced and cared for precious Katrina animals. When animal survivors became
the subject of pet custody disputes, the tone of the ensuing judicial decisions
clearly revealed that the courts really did not view Katrina animals as chattel or
property anymore.
APPLICABLE CASE LAW
Arguello v. Behmke39
Year: 2006
Category: Property Law, Contract Law
Type of Action: Bailment
Animal: Dog
Pet Custody Concept: Unless property is abandoned—which did not apply here, as the intake form the woman filled out was evidence of a bailment—the statute of limitations for passing title is six years.
The court began this lengthy, unpublished decision by saying, “One of the well known
equitable maxims is that equity will not knowingly become an instrument of injustice.”
The owner of a Great Dane dog named Chopper left him at an animal shelter with
her two Beagles in the wake of Hurricane Katrina. She stated that she would pick them
up seven days later. When she left the dogs, she signed an intake form that the court
said created a bailment. The court defined a bailment agreement as when “personal
property is delivered by one person into the possession of another person in trust
for a specific purpose, under an agreement that the property will be returned to the
owner, or accounted for, or kept for the owner to reclaim it, when the purpose is
accomplished.”
The owner was unable to retrieve Chopper within seven days. She spoke to a
volunteer who orally granted her a two-week extension. Even so, the intake form at
the shelter only indicated a one-week hold for the dog. It was because of this error
that Chopper was moved from the Gulf Coast to New Jersey, where he was
subsequently neutered and then adopted.
After the shelter adopted Chopper out, the original owner went to the shelter to
pick up her three dogs. After realizing that none of her dogs were at the shelter, the
owner began a diligent search for them, and she recovered her Beagles from a humane
society. She was unable to locate Chopper until she gained access to a database showing
Chopper’s new owner. The original owner sought possession of Chopper, but the
new owner refused to release him, claiming that the original owner had misidentified
the dog. The new owner asserted that the dog she had was a completely different dog
named Pluto, not Chopper. The original owner initiated an action pursuant to an order
to show cause and writ of replevin.
The court determined that (1) the dog was a “chattel” under the law, (2) the original
owner did not intend to abandon or give up Chopper, (3) a bailment agreement
had been reached between the original owner and the shelter, and (4) for title to pass
to the possessor of chattel, the chattel must have been abandoned or the true owner
must have demanded possession within the six-year statute of limitations. Accordingly,
the court granted the order to show cause and writ for replevin in favor of the original
owner.
Instead of hearing this case in the lower law division, the New Jersey court granted
the Chancery Division “jurisdiction to enforce the restitution or delivery of a specific
chattel which has a peculiar artificial value and for which, therefore, adequate
compensation cannot be obtained at law.”40 The court took judicial notice that “few
possessions, if any, have more sentimental and therefore peculiar artificial value than a
pet, which also serves as a companion to its owner.” In presenting his decision, New
Jersey Superior Court Justice Williams quoted Henry David Thoreau. “It often happens
that a man is more humanly related to a cat or dog than any human being.”
Pursuant to New Jersey law, a replevin action was described as equitable in
nature and could be brought by “a person seeking recovery of goods wrongly held by
another.” The Arguello court explained that it was “faced with a situation where both
sides did nothing wrong.” Although one might think the subsequent owner’s failure
to do something “wrong” was outcome determinative, the court was sympathetic to
the original owner’s situation as a Hurricane Katrina survivor. Not only did the court
recognize her diligent efforts to retrieve her pets, but the court also observed that
Chopper’s new owner had bonded with him and had “performed a kind deed.”
Another interesting aspect of this New Jersey decision was that the court analyzed
the laws of New Jersey and Louisiana. Pursuant to Louisiana case law, specifically
Peloquin v. Calcasieu Parish Police Jury,41 someone who finds a lost, privately
owned domestic animal in Louisiana does not acquire ownership by “occupancy.” Even
so, the New Jersey court also looked to its own case law and determined that the
original owner had not abandoned Chopper because she did not intend to give up
possession of her property, but rather, “quite the contrary.” The court emphasized that
“plaintiff took every reasonable step to attempt to track down her dog after Lamar-
Dixon failed to deliver it to her when she arrived to pick it up and continued to this day
by the filing of this lawsuit. Clearly, such acts defeat any assertion of abandonment.”42
Of additional significance was that the new owner, rather than claiming to be
a bona fide purchaser, relied on the “Memorandum of Understanding and Minimum
Requirements for Satellite Sheltering of Katrina Animal Evacuees between People for
Animals and the Humane Society of the United States.” According to this document,
if the animal was still “contained” by October 16, 2005, the contained animal would
become the shelter’s property. The court determined that the contract between these
two entities was based upon a mutual mistake, as related to the possession of Chopper,
which was a ground for rescission of the agreement. The court explicitly used
“its equitable power to cancel the agreement” between the Humane Society of the
United States and People for Animals.43
Although there were issues raised regarding Chopper’s identification number and
acknowledgment that his name was listed as Pluto upon adoption, the court, while not
accusing the defendant of perpetuating a fraud upon the court, expressed doubt about
her claim that the Great Dane did not respond to the name Chopper. The court’s
decision gained momentum as it progressed through the facts and advocated for the
application of equitable principles. The Chancery court said, “even if it were to find all
of the Contracts valid insofar as they allowed for the dog’s transport and adoption,
they would be invalidated by this court of equity. Even a contract fairly procured must
not advance injustice or hardship.” Accordingly, the decision should operate without
“injustice or oppression to either plaintiff or defendant.” This approach is consistent
with the equitable maxim that “equity will not knowingly become an instrument of
injustice.”44
Going out of its way not to blame the nonprofit for the unfortunate developments
in this case, and acknowledging that this disaster rescue group was working with
limited resources and access to facilities, the court nevertheless proclaimed that the
“equities demand this situation be considered beyond the strict confines of the law
and exercise discretion guided by compassion. If this were a lost child, reunited with its
parents who searched for it, no one would question the decision of the return.” This
analogy was notable because just before the court used the child analogy, the court
said that the Great Dane was a chattel.
Practice Pointer: Although this was an unpublished decision, the analysis and
advancement of equitable principles were so strong that Lady Liberty could be
perceived as riding a stallion; the court was determined not to permit any legal argument
to prevent the reunification of a dog named Chopper with the original and diligent
owner who loved him.
Augillard v. Madura45
Year: 2008
Category: Property Law, Contract Law
Type of Action: Conversion
Animal: Dog
Pet Custody Concept: Choose the right claim.
In this post-Hurricane Katrina decision, the court was faced with choosing between the
original owner of a black Cocker Spaniel,46 who had raised the dog for eight and a half
years, and the new owner, who had substantially invested in the sick dog’s veterinary
care. Although Augillard claimed to be the dog’s original owner and claimed to
recognize Jazz, the trial court rejected her claim for conversion of a dog called Hope. To
prevail on a claim for conversion, she was required to establish, by a preponderance
of the evidence, that (1) the plaintiff owned or had legal possession of the property
or was entitled to possession; (2) the defendant unlawfully assumed and exercised
dominion and control over the property to the exclusion of, or inconsistent with, the
plaintiff’s rights as an owner; (3) the plaintiff demanded the return of the property; and
(4) the defendant refused to return the property. The trial court ruled that she had
failed to meet her burden of proof.
Despite Hurricane Katrina, Augillard still had some of her dog’s veterinary records
and a brush containing her dog’s DNA. She argued on appeal that the veterinary
records showed that she had provided the dog with regular veterinary care, had given
her heartworm medication, had treated her for a skin condition, and that the dog had
been recently groomed. Augillard hired a DNA expert who testified that when fur
from Jazz’s brush was compared to fur from Hope,47 there was a complete match on
17 DNA markers; it was asserted that this DNA evidence was conclusive. She also
claimed the mitochondrial DNA from Jazz’s sibling was consistent with Hope’s and
said that this proved both dogs shared a maternal relative. Madura made no objection to
the court receiving this DNA evidence. The only issue on appeal was whether Jazz and
Hope were the same dog.
To the contrary, Madura and her veterinarian described the rescued dog as sick
and overweight, and that Hope was suffering from hypothyroidism and large bladder
stones.48 The higher court criticized the trial court’s finding that “the DNA evidence
was not ‘authenticated or identified thus indicating a high potential for tampering,’”
and it emphasized that the “uncontradicted evidence at trial was that Augillard did not
have an opportunity to obtain a DNA sample from Hope,” as she was only permitted
to briefly see the dog while in the presence of several other people.
Augillard had conclusively established every element of her conversion claim. The
evidence was factually insufficient to support the trial court’s judgment. The appellate
court used the legal sufficiency of the evidence as the appropriate standard of review
and said that neither a jury fact finder nor a trial court fact finder could disregard from
a legally sufficient standpoint what the appellate court described as conclusions contrary
to a vital fact. More specifically, the appellate court found that “When evidence
contrary to a verdict is conclusive, it cannot be disregarded.”
The court offered a history of Hurricane Katrina and the passage of the Pets Evacuation
and Transportation Standards Act of 2006. Information was provided about
the challenges resulting from 50,000 pets stranded in the New Orleans area, including
12,000 pets that were transported as far away as New Jersey, Arizona, and
Pennsylvania. In this case, it should be emphasized that Madura’s counsel had not
challenged the DNA test results, only the source of the dog’s hair.
The Augillard court, in ruling for the original owner, described its emerging worldview
about companion animals in Note 15 of its decision as follows:
We also note the obvious dissonance between the emotional investment at the heart of the human-pet relationship and the current legal system, which identifies this eleven-year-old cocker spaniel with chronic health problems as “property,” subject to suit for conversion and identified in terms of her economic worth. Given the parties’ considerable expenditure in this case, it goes without saying that Jazz’s significance as a cherished member of Augillard’s family—as well as her importance to her caretakers of almost three years, Tiffany Madura and Richard Toro—far exceeds her market value. Thus, while resolving this appeal in accordance with the applicable law governing ownership of chattel, we recognize that there are important non-economic interests at stake in this case. As one commentator has remarked,
People do not plan memorial services, or invest in serious medical treatment for their books or lawnmowers. They don’t plan to pay more in insurance premiums than the purchase price or replacement cost of the property they seek to protect. Individuals do not leave money for their bicycles in their wills, or seek visitation arrangements for their televisions upon the termination of their marriages.
Practice Pointer: The court proclaimed that more than economic interests were at stake and that there was an “obvious dissonance between the emotional investment at the heart of the human-pet relationship and the current legal system.” The word “dissonance” is a good word to remember. The underlying analysis about value echoes the pronouncement about fictitious value in Akers v. Sellers.49 Another important practice pointer to take away from this decision is if a client loses his or her dog, tell him or her to hold onto the pet’s sweater and brush in case a DNA test is later needed. In time, it is also probable that DNA information will be more readily available to experts for companion animal identification purposes.
?2017 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Copies of Pet Law and Custody can be purchased at shopABA.org.
1. Statement on Federal Emergency Assistance for Louisiana, https://911review.org/Hurricane_Katrina/Federal-response-Hurricane-Katrina.html (last visited May 12, 2016).
2. Federal agencies were included.
3. Stanley Coren, The Dogs of Hurricane Katrina, Modern Dog Magazine, https://moderndogmagazine.com/articles/dogs-hurricane-katrina/151 (last visited May 12, 2016).
4. Wayne Pacelle, HSUS president, did not evacuate and leave the already rescued Katrina animals when a second hurricane was expected to hit HSUS’s ground zero rescue location.
5. Wendy Burton, Preparing Pets and Livestock for Hurricane Season, University of Florida, https://bradford.ifas.ufl.edu/ag_prepare_pets_hurricane.shtml (last visited May 12, 2016).
6. Karen Dawn, Shameful Policy Caused Many Pets’ Deaths, New York Newsday, https://www.dawnwatch.com/oped-september14-2005.htm (last visited May 12, 2016).
7. Karen Dawn, Best Friends Need Shelter, Too, Washington Post, https://www.washingtonpost.com/wp-dyn/content/article/2005/09/09/AR2005090901824.html (last visited May 12, 2016).
8. Id.
9. Id.
10. Good Samaritan Law, https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Good_Samaritan_law.html (last visited May 12, 2016).
11. It was common for Katrina animals to have heartworm problems.
12. Allen Anderson & Linda Anderson, Rescued: Saving Animals from Disaster (New World Library 2006).
13. Kim Borgen, Left Behind without a Choice: Hurricane Katrina Animal Rescue Documentary, 2009.
14. The difficulty posed by these questions related to hold periods caused the American Bar Association to pass a resolution on this subject, described later in this chapter.
15. Liability claims and workers’ compensation issues were addressed by the Uniform Law Commission, as later discussed in this chapter.
16. When advancing an argument for an animal’s best interests, it was often the case that the post-Katrina original owners had less financial means and resources than those in possession of the disputed animal.
17. Megan NcNabb, Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts with Pet Custody Disputes, Michigan State University Animal Legal & Historical Center, https://www.animallaw.info/journals/jo_pdf/lralvol14_1_71.pdf (last visited May 12, 2016).
18. Bruce Wagman, Sonia Waisman, & Pamela Frasch, Animal Law: Cases and Materials (Carolina AcademicPress 2009).
19. 2006 WL 205097 (N.J. Super. Ch. 2006) (not reported in A.2d).
20. 257 S.W.3d 494 (Tex. App. 2008).
21. Robert T. Stafford Disaster Relief and Emergency Assistance Act, as Amended, and Related Authorities, FEMA, https://www.fema.gov/pdf/about/stafford_act.pdf (last visited May 12, 2016).
22. The H.R. 3858 sponsor was Congressman Tom Lantos (D-CA). Co-sponsors were Christopher Shays (R-CT), Don Young (R-AK), James Oberstar (D-MN), and Barney Frank (D-MA).
23. Bill Summary & Status 109th Congress (2005–2006) S.2548, Library of Congress, https://thomas.loc.gov/cgi-bin/bdquery/z?d109:S2548: (last visited May 12, 2016). The bill was sponsored by Senator Ted Stevens (R-AK) and Senator Frank Lautenberg (D-NJ) and co-sponsored by Senator Lincoln Chafee (R-RI) and Senator Maria Cantwell (D-WA).
24. Hurricane Katrina Related Legislation, ABA, apps.americanbar.org/tips/tfdic/WORD/Katrina%20 Memo.doc (last visited May 12, 2016).
25. The ABA Tort Trial and Insurance Practice Section Animal Law Committee and Chair-Elect Kristina Hancock led the effort that resulted in a resolution to support the PETS Act. The PETS Act was signed into law on May 22, 2006.
26. Prior to Hurricane Katrina, lawyer Melissa Rubin of the Humane Society of the United States (HSUS) made speeches throughout the United States encouraging audiences to be ready for a disaster. Rubin was destined to become a key HSUS player in the Gulf to help animals affected by Hurricane Katrina.
27. Barbara J. Gislason founded the ADRN, which gained participants from more than 60 non-governmental organizations (NGOs), bar associations, federal and state governmental entities, and educational institutions.
28. Frequently Asked Questions Arising from the Rescue of Animals Affected by a Regional Disaster, Animal Legal Defense Fund, https://aldf.org/downloads/disaster_faq.pdf (last visited May 12, 2016).
29. The EMRA was founded by Barbara J. Gislason and was comprised of a broad spectrum of professionals, including from the American Veterinary Medical Association, the Centers for Disease Control, the National Alliance of State Animal and Agricultural Emergency Programs, NGOs, and others who had distinguished themselves post Hurricane Katrina or who had relevant subject matter expertise.
30. Professor David Favre, a former law school dean and expert in property law and animal law, was the principal drafter of the model act. Coauthors included Melissa Rubin and Barbara J. Gislason.
31. Passing the ABA resolution took five years and would not have been possible without significant input and political acumen of ABA TIPS leader James Carr.
32. The Uniform Emergency Volunteer Health Practitioners Act, Centers for Law & the Public’s Health, https://www.publichealthlaw.net/ModelLaws/UEVHPA.php (last visited May 12, 2016).
33. Red Cross, SMART Shelter Pets & Their Humans during Disaster, American Red Cross, https://www.redcross.org/news/article/Red-Cross-SMART-work-together-to-shelter-pets-and--their-human-companions-during-disaster (last visited May 12, 2016).
34. Pets Ride out Superstorm Sandy with Their Families, American Red Cross, https://www.redcross.org/news/article/Pets-Ride-Out-Superstorm-Sandy-with-Their-Families (last visited May 12, 2016).
35. Id.
36. Id.
37. Lisa Flam, Pet Oxygen Masks Can Save Animals’ Lives in Fires, Yahoo News, https://news.yahoo.com/pet-oxygen-masks-save-animals-lives-fires-194219196.html (last visited May 12, 2016).
38. 166 U.S. 698, 17 S. Ct. 693, 41 L .Ed. 1169 (1897).
39. 2006 WL 205097 (N.J. Super. Ch. 2006) (not reported in A.2d).
40. The use of the term “artificial value” for a companion animal is interesting, as the terminology almost goes back to the concept of “fictitious value” described in Akers v. Sellers, 114 Ind. App. 660, 54 N.E.2d 779 (Ind. App. 1944). 41. 367 So. 2d 1246 (La. App. 3d Cir. 1979).
42. In this unpublished decision, the court reviewed every aspect of the bailment agreement that Chopper’s original owner had with Lamar-Dixon, the HSUS rescue that had possession of Chopper before he was transferred to another rescue and then acquired by the defendant. With regard to the contractual terms of the bailment, the court observed that Chopper’s original owner had written on Chopper’s intake form “Call if shelter closes; dogs will be picked up.” Because Lamar-Dixon did not cross out the plaintiff’s handwritten additions, the court treated Lamar-Dixon’s silence and inaction as an acceptance of these terms. Furthermore, the plaintiff gave Lamar-Dixon phone numbers where she could be reached, and a Lamar-Dixon volunteer later spoke to the plaintiff and promised to hold Chopper for two more weeks, which she reasonably relied on as an oral promise.
43. The court seemed offended by the defendant’s argument that the plaintiff’s search for Chopper lacked diligence when it said, “To expect plaintiff to conduct an online search for Chopper in an area of the country which to date has not fully been restored to its pre-storm condition with areas still lacking in electricity is a preposterous argument.” The court paid considerable attention to the plaintiff’s clean hands and that she deserved the court’s equitable power when it said, “plaintiff’s inability to recover Chopper prior to the October 15, 2005 deadline was due to Lamar-Dixon’s mistake and through no fault of her own.”
44. Unless codified, replevin actions are equitable in nature.
45. 257 S.W.3d 494 (Tex. App. 2008).
46. Jazz became lost when the National Guard would not let the owner’s mother take the dog on a rescue boat. In the meantime, the original owner was working at the airport helping with the delivery of evacuation supplies. It was for this reason that Jazz was left at her mother’s home with large quantities of food and water.
47. Augillard claimed that the DNA the expert used was from a brush that Augillard earlier used on Jazz. In contrast, Madura claimed that the DNA the expert used was from a brush that Augillard surreptitiously used on Hope during their brief meeting.
48. Notwithstanding Madura’s claim, her own veterinarian had only recently detected these large stones.