The Prelude to the Event:
The following event posed some very interesting legal questions for the CPT expert.
In New York City, a father took his 2.5-year-old daughter to a small neighborhood park north of Little Italy. Unfortunately, the pleasant father-daughter urban interlude quickly morphed into a calamity.
Within moments of entering the park, the father became enthralled with a restless Pit Bull dog. A heavily tattooed, mid-20s city dweller struggled to restrain the conspicuously agitated, leashed Pit Bull. Regardless, the owner situated the dog at the corner of the main path and another highly trafficked footway.
The four-legged creature saliently demonstrated a lack of emotional or physical control. Yet, the dog’s owner irrationally held the beast adjacent to one of the park’s most populated areas.
As the father and daughter approached, the unruly Pit Bull increasingly shared the father’s intrigue. The unsettled Terrier locked his eyes and grew progressively aroused by the stimulus of the approaching young girl.
This highly entertained the father, who felt compelled to video the interaction. Video evidence demonstrably shows the dog straining at the leash, barking, and lunging toward the daughter.
The Event:
After collecting video of the saliently aggressive dog, the father took his daughter deeper into the interior of the park. Several minutes later, they reversed direction to exit the park. As the father and daughter returned toward the park entrance, the Pit Bull again became increasingly aroused.
Yet, the father never attempted to stop his ingenuous daughter from approaching the dog. Consequently, the girl walked within striking distance of the maniacal Pit Bull. Immediately, the dog inflicted a severe bite to the face of the young girl.
Park patrons promptly called 911. EMTs subsequently rushed the profusely bleeding girl via ambulance to a hospital emergency room. The primary bite beneath the girl’s eye removed a large chunk of flesh and caused notable blood loss. The victimized pre-schooler received requisite emergency treatment. In addition, she will likely need future cosmetic surgeries and require mental health treatment.
The Mother’s Impasse:
The girl’s mother was highly perturbed by the entirety of the event. She was distraught upon witnessing the savage injuries suffered by her formerly beautiful daughter. She was upset at the cavalier supervisory carelessness of the dog owner and the father/her husband.
The mother was at an impasse how to proceed legally. She remained uncertain whether to sue the dog owner. In addition, she contemplated re-evaluating her marital relationship with the father.
To facilitate astute legal decisions, the mother contacted a CPT expert. She requested the CPT expert write a detailed report. The mother asked the CPT expert to discuss the dog’s behavior and the concomitant negligence of the dog owner, She also wished the CPT expert’s opinion regarding negligence by the father.
While positioned alongside a highly trafficked path, the dog owner clearly permitted his blatantly aggressive Pit Bull to access the vulnerable child, In the opinion of the CPT expert, the mother had a high probability of successfully proving the dog owner’s negligence. Unfortunately, the dog owner was low income and did not carry a renter’s insurance policy. Therefore, suing the dog owner would be an exercise in futility.
Parental Immunity Doctrine- General and Georgia:
The mother also wished the CPT expert to opine regarding suing the father, who failed to responsibly and prudently supervise his young daughter. Generally, in judicial interpretations of common tort law, an unemancipated minor child cannot legally sue a parent for ordinary negligence, unless the injury resulted during operation of the parent’s business or vocation. The principle is called the “doctrine of intrafamily tort immunity” or the “doctrine of parental immunity.”
For instance, the applicable Georgia civil code is 51-1-9, “Torts-General Provisions- Recovery for Torts to Self, Wife, Child, Ward, or Servant.” The case of Blake v. Blake typifies application of the code. Two minor children, through their mother, sued their natural father for injuries incurred during an automobile accident. The trial court and appeals court granted summary judgement to the father, based upon parental and family immunity. The appeals court cited 5 public policy reasons for parental immunity:
- disturbance of domestic tranquility;
- danger of fraud and collusion;
- depletion of the family exchequer;
- the possibility of inheritance by the parent, of the amount recovered in damages by the child; and
- interference with parental care, discipline, and control.
In another judicial decision related to the code, Wright v. Wright, the Georgia court ruled “while an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a willful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority.” Yet, despite the general and Georgia interpretation of tort law, there have been judicial decisions to the contrary in other jurisdictions, as some judges believed it was inequitable to deny a child the right to indemnification, especially if the parent carried appropriate insurance.
Parental Immunity- USA:
In most states the doctrine is applied via case precedent, rather than via statute. The 1891 Mississippi case of Hewelette v. George initiated the doctrine. In Hewelette, the judicial opinion stated, “the peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.”
Most states adopted the doctrine of Hewelette. However, some states include exceptions, either in statute or in case rulings. The most common exceptions occur when mandatory insurance coverage is available to indemnify the injured child, when the injury occurs in the course of the parent’s business, or when the parent is guilty of gross negligence.
Other states decline to accept the doctrine. In North Dakota, courts rely on a statute stating every person is responsible for the damages he causes. Nevada courts have elected to dispel the doctrine. Utah courts have never applied the doctrine and the legislature has never written a parental immunity statute. Similarly, Vermont courts rebuff the doctrine, as do courts in Wisconsin and Hawaii.
Parental Immunity- New York:
Yet, the incident occurred in New York. New York is one of the “exception states.” According to an article written by Matthew Robinson-Loffler in a 2012 edition of the Albany Government Law Review (“Passive Parenting and New York’s Refusal to Recognize Parent-Child Actions for Negligent Supervision”), New York courts first recognized the parental immunity doctrine upon the 1928 Appeals Court ruling in Sorrentino v. Sorrentino. Later, in 1935, the state legislature passed General Obligation Law 3-111. The Law states, “In an action brought by an infant to recover damages for personal injury, the contributory negligence of the infant’s parent or other custodian shall not be imputed to the infant.” Thus, New York parents received broad protection against civil suits from an unemancipated, minor child plaintiff.
Gelbman v. Gelbman- New York:
Then, in 1969, the case of Gelbman v. Gelbman started to add exceptions. Plaintiff Gelbman was a mother injured while riding in a car operated by her 16-year son. The judge wrote, “the rule will be changed… by a decision of this court.” Judge Burke expounded that courts in other states abandoned the doctrine, it was a court-created rule, and courts were free to revoke, with or without legislative action.
Burke then listed existing exceptions, such as if the child is of adult age, the child is emancipated, the car is owned by the parent’s employer, the injury occurred while employed by the parent, the injury was inflicted intentionally, or the suit is for property damage or breach of contract, rather than personal injury. They are reasonable exceptions, because in each case family relations were terminated (legal age, emancipation), abandoned (intentional injurious act), or irrelevant (employment, property damage, contract breach). Consequently, the exceptions fall outside the spirit and intent of parental immunity laws- to maintain family harmony.
Judge Burke opined that key principles underlying the doctrine likewise fail to apply to vital contexts of the Gelbman case. Parental immunity, family harmony, and protection of family financial resources were irrelevant, since the claim would be paid by the driver’s auto insurance carrier. In the opinion of Burke, the lawsuit was not really between Gelbman and her son, but between Gelbman and the insurance company. Thereafter, in New York, parental immunity did not apply in situations where compulsory insurance provided the injured party’s award.
Holodook v. Spencer- Background- New York:
Exceptions became more detailed in 1974, after the collective appeal of Holodook v. Spencer, Graney v. Graney, and Ryan v. Fahey. The latter 2 cases displayed similarities to the subject CPT expert case, where the case arose due to an alleged lack of supervision.
4-year Graney fell off playground equipment while carelessly supervised by his father. Infant Graney’s guardian ad litem then sued Graney’s father.
3-year Ryan played in the backyard of 8-year-old neighbor Fahey. Fahey operated a lawnmower that ran over Ryan’s hand. At the time, the mother of each child congregated inside Fahey’s house. The complex case spawned multiple lawsuits. Young infant Ryan, via his father, sued his mother for negligent supervision. Infant Ryan also sued young Fahey for negligent operation of the lawnmower. In addition, infant Ryan sued Fahey’s mother for negligent supervision of young Fahey. And Mr. Ryan sued his wife, young Fahey, and Mrs. Fahey for recovery of medical expenses.
In contrast, the Holodook case originated when Spencer accidentally hit young Holodook with her automobile. Holodook’s parents sued Defendant Spencer for injuries to the child. Spencer countersued Holodook’s parent’s, claiming lack of supervision. The accident occurred when 4-year old Holodook suddenly darted between parked cars and into the street.
Holodook v. Spencer- Judicial Opinion- New York:
The aggregated judicial opinion for Holodook, Graney, and Ryan concluded “Gelbman made no express exception for the failure to perform a ‘parental duty’… for the exercise of parental authority (disciplinary acts), and the performance of duties to provide food, clothing, housing, and medical care.” “A child could probably avoid most physical harm were he under his parents’ constant surveillance and instruction.” If state courts allowed “negligent supervision claims,” it would be a “rare parent who could not conceivably be called to account.”
Moreover, constant supervision inhibits the parents’ objective of teaching the child “to undertake responsibility and gain independence.” Furthermore, it will be difficult to apply an equitable standard. Parents arrive with diverse “economic, educational, cultural, ethnic, and religious backgrounds.” This diversity creates “many combinations and permutations of parent-child relationships.” “Supervision is uniquely a matter for the exercise of judgement.” “Parents have always had the right to determine” the level of child “independence, supervision, and control.” Therefore, “negligent supervision has not been a tort actionable by the child.”
Judicial Opinion- Comparison Between Gelbman and Holodook:
The court further elaborated that parenting emanates from “such forces as natural instinct, love, and morality.” Parenting operations should not originate from “the essentially negative compulsions of the laws directives and sanctions.”
However, “where the duty is ordinarily owed, apart from the family relation, the law will not withhold its sanctions merely because the parties are parent and child.” In Gelbman, “the duty to drive carefully was owed to the world at large and derived from the parties’ relation as driver and passenger.” Their familial relationship was irrelevant to the duty and the breach.
In contrast, Holodook, Graney, and Ryan involve “a parent’s duty to protect his child from injury.” This duty “not only arises from the family relation, but goes to its very heart.” Accordingly, the court ruled that in each case the infant Plaintiffs had no cause of action against the parents for negligent supervision.
CPT Expert Opinion:
Applying the preceding case law to the client’s case, the CPT expert informed the client that most probably her daughter does not have an actionable claim against her father for negligent supervision. The daughter can sue the dog owner. Yet, without insurance, he likely has few financial resources to pay a claim. Unfortunately, despite the severity of the daughter’s injuries, she has limited civil remedies.
The mother then asked about the possibility of filing a claim with her renter’s insurance. The CPT expert replied that most likely the incident at the park is excluded from coverage. Moreover, as discussed by Robinson-Loffler, the carrier will likely refuse coverage based on parental immunity.
Unlike automobile insurance, state law does not mandate homeowners/renters insurance. Thus, courts have looked less favorably at allowing an action, since defendant parents may not have coverage. The inequality presents an obstacle to the courts removing immunity. Per the Holodook decision, “Children whose parents are covered by liability insurance” may “find their claims prosecuted eagerly.” In contrast, uninsured parents may hesitate “asserting their child’s rights.”
The CPT Expert Report:
Initially, the victim’s mother expressed reluctance about contacting an attorney. The mother had concern about elevating existing marital discord, especially since she angrily blamed the father for her daughter’s injuries.
As a prelude to potential future legal action, she first wished to observe a CPT expert behavioral analysis of the event. She also wished the CPT expert report to include an assessment of human negligence and culpability. Yet, at the CPT expert’s behest, she hired an attorney.
Nevertheless, she was more impressed with the CPT expert and more comfortable working with the CPT expert. Therefore, in addition to the behavioral analysis, she asked the CPT expert to conduct legal research determining whether her daughter could sue the father. The CPT expert explained he typically works in conjunction with client attorneys. However, he sometimes contracts directly with clients. Resultantly, he will conduct the research, but recommends she also solicit the opinion of her attorney.
When writing the expert report, the CPT expert employed the police report; photographs of the victim child before the event, immediately pre-surgery, and post-surgery; and the described iPhone video shot by the father. The video demonstrably showed the dog exhibiting prominent vocal and physical aggressive behaviors upon the approach of the child.
The report:
- provided a synopsis of case facts;
- described specifically how the dog’s vocalizations and physical postures clearly indicated impending aggression;
- explained that contextually the dog’s arousal heightened once seeing a toddler (in comparison to the adults passing by that did not produce a tantamount effect);
- delineated how canine aggression is often context-specific;
- discussed how the child’s rapid movement and flailing arms exacerbated the dog’s arousal;
- explained why the tight leash restraint of the owner elevated the dog’s arousal;
- opined that the dog’s saliently aggressive vocalizations and posturing should have forewarned the dog owner to remove the dog from the child’s proximity;
- opined that the dog’s saliently aggressive vocalizations and posturing should have forewarned the father to more closely supervise his daughter’s movement- and to move away from the dog when exiting the park;
- described how the father’s words in the video, that his daughter was “crazy” for showing “no fear,” demonstrated scienter regarding the risk;
- provided epidemiological data on the frequency and severity of dog-child bites;
- discussed why children are most frequently the victim of dog bites;
- provided research data regarding the frequency of severe and lethal Pit Bull bites;
- explained that such data was available in the public domain to both the dog owner and father;
- questioned whether the dog owner ever contracted for professional training;
- stated that failure to receive professional training may be deemed irresponsible and imprudent when one owns a large Pit Bull dog;
- declared that failure to receive professional training may be deemed reckless when the dog has exhibited aggressive behavior to children, especially when the dog owner disregards the risk by continuing to bring the dog to a public environment containing toddlers and pre-schoolers;
- opined that a court may deem the dog owner as reckless (showing willful and wanton disregard for the safety of others) for bringing a Pit Bull dog with known aggression to a highly trafficked area of a public park, without muzzling or another method that reliably eliminates the possibility of physical contact with children;
- analyzed the force, pressure, dentition, location, and depth of the dog’s bite and the relationship to arousal, tenacity, intent, and injury severity;
- listed and explained pertinent local and state criminal and civil statutes; and
- provided a conclusion regarding what happened, why it happened, and how human negligence contributed to the dog’s behavior and the child’s actions that put her within striking distance of the dog.
The Outcome:
Ultimately, the mother elected to use the CPT Expert report to further a maternal custody ruling should she elect to divorce the father. Sadly, their marriage was not optimal before the incident and was perhaps irreparably fractured after the dog bite.
Considerations When Hiring an Expert Witness in Dog Behavior