See bloggers and readers comment on this story here, there, and way over yonder.

As I have discussed on multiple occasions on this blog, the Americans with Disabilities Act protects the right of people with disabilities to be accompanied by their service dogs. (The U.S. Department of Justice has a nice summary here.) That being said, however, if a person’s allergy rises to the level of a disability, there seems to be a stalemate: whose rights reign supreme–the blind person or the cab driver? That is a question this story raises.

If the cab driver is severely allergic to dog dander and there is a real potential for a life-threatening asthma attack, that might rise to the level of a disability as that term is defined under the Americans with Disabilities Act.

In situations where a cab driver is severely allergic to dog dander, the driver should make arrangements to call for another cab to assist persons accompanied by their service dogs. But that is not what happened in Colorado. Instead, the cab driver told the visually impaired passenger to put his service dog in the trunk of the car.

Requesting that a service dog be placed in the trunk is not acceptable. The trunk of a car has poor ventilation, which can be dangerous for the dog; it may also rise to the level of animal cruelty, which is a punishable crime in many states.

In the end, the Colorado cab driver had his licensed revoked and was served a fine. But it is hoped that such incidences will not happen again. To avoid such incidences and public embarrassment, cab drivers and cab businesses should carefully review their legal obligations under the Americans with Disabilities Act to ensure compliance with the law.

Last week, the U.S. Department of Justice revised the ADA regulations. Prior to the revisions, the ADA regulations had not limited “service animals” to any specific type of animal. Now, there is an extremely narrow limitation: only dogs meet the definition of service animals.

The newly issued regulations provides in part:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.

The new definition of service animal will sorely disappoint individuals with disabilities who have and rely on parrots, monkeys, snakes, and miniature horses, as their service animals. As Martin Matheny points out, “dogs are great, but there are some things that they cannot do.”

But wait a moment.

If you keep on reading the regulations, you’ll find something interesting. Section 36.302(c)(9) provides:

(9) Miniature horses.

(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider –

(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(B) Whether the handler has sufficient control of the miniature horse;

(C) Whether the miniature horse is housebroken; and

(D) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(iii) Other requirements. Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses.

Although the regulation now limits the definition of service animals to dogs only, the regulation suggests that individuals with disabilities who own and rely on miniature horses to mitigate their disabilities may nonetheless be afforded some legal protection under the ADA. If this sounds confusing, you’re not alone.

So, one wonders what had prompted the limitation of service animals to only dogs. And why the inclusion of miniature horses?

With respect to limiting the definition of service animals limited to dogs, the drafters were quite concerned about the safety risks that exotic animals, particularly primates, pose to the public.

With regard to miniature horses, the drafters were cognizant of the fact that there is a long history of training miniature horses and these types of horses lived much longer than dogs. Additionally, the drafters were aware that miniature horses may be better suited for people with allergies as well as disabled Muslims who rely on miniature horses instead of dogs for religious reasons (see video below).

I predict that the new regulations will be revised to expand the definition of “service animals” someday. I’m fairly certain that someday in the future (perhaps a few years down the road), monkeys and miniature horses will be included in the definition of service animals. I’m not sure about snakes and parrots, but who knows?

In last week’s post about calculating the value of service animals (The Legal Value of Service Animals), I explained the difficulties in calculating damages associated with the injury or death of a service animal. When a service animal is injured or killed, there are many legal questions that must be considered. Fortunately, some states have passed laws that help people with disabilities recoup the costs associated with the harm or death of their service animals without the need to resort to expensive litigation.

Layla’s Law in Washington state, for example, was the first state to impose fines and jail time whenever a person (or their dog) injures, disables, kills, or interferes with a service animal. This law also provides that when a service animal is injured, the person responsible for the injury will be required to pay for all expenses associated with the service animal’s training, health care, and replacement. (To read the statute, see this link.) At least one other state, South Carolina, has followed suit.

Layla’s Law is an excellent example of tort reform. Unfortunately, not all states have been as progressive as Washington State or South Carolina. Some states, like New Jersey, have laws that impose only a maximum of $500 fine for interfering with a service animal. Disability rights advocates, animal rights advocates, and those who support tort reform, may want to research whether their state has enacted a law like Layla’s Law. If no such law has been enacted in a particular state, or if a particular state fails to provide as much protection as Washington or South Carolina, advocates may wish to contact their state representative to draft and sponsor similar legislation. This is an area that disability rights advocates, animal rights advocates, and tort reformers can join forces to benefit many different interest groups.

This blog post is concerned with a single question: When a person or companion pet physically harms or kills a service animal, how much damages can the disabled owner reasonably anticipate to win in court?

This is not an easy question.

Damages associated with the injury or loss of service animals is a new area of law, relatively unexplored and not well understood. The reasons we know very little about this area of law are primarily three-fold: (1) most service animals have not been harmed, (2) damages for the death or injury to a service animal is not widely reported, and (3) the legal rules related to damages of companion pets vary widely among jurisdictions. A fourth possible reason is that damages for companion pets that have been injured or killed are nominal, and attorneys may assume that damages for a trained service animal might be approximately the same as damages for a companion pet. This may be true in some jurisdictions.

If, for instance, the service animal dies prematurely as a result of an attack by another dog, then arguably, the first thing we need to do is figure out a reasonable market value of the service animal.

The media, as well as the organizations that train service animals, have been very good in sharing with the public that a well-trained service animal can be very expensive. Dogs, monkeys, and horses, that have been trained to perform specific tasks to mitigate a person’s disability can cost tens of thousands of dollars. From what I understand, the average cost for a professionally trained service dog is approximately $15,000.

Suppose an individual with a disability has had a professionally trained service dog for 4 years. Is the market value of the service dog $15,000? What if the service dog is one year shy of retirement, is it still worth $15,000?

Let’s say that a person with a disability trained her own dog to be a service dog? The service dog is a victim of a dog fight and dies. Was that service dog worth $15,000 even though it was not “professionally” trained?

Is the value of a service animal dependent upon (1) the amount of time expended in training the service animal, (2) the number of tasks the service animal can perform, and (3) the difficulty of these tasks? Should the value of the service animal also be dependent upon who trained the service animal?

There are so many questions to consider.

I would venture to say that the amount of damages associated with the injury of a service animal should most likely be related to:

• emergency veterinary care;
• the costs associated with rehabilitating the injured service animal back to health;
• the time it takes for the injured service animal to return to work (if feasible);
• the time it takes for the injured service animal to be retrained (if necessary).

The amount of damages associated with the premature (and unnatural) death of a service animal should most likely be related to:

• emergency veterinary care (if applicable);
• the length of time that the disabled person will need to adapt without a service animal;
• the costs that the disabled person will require assistance until a service animal is provided.
• the costs associated with purchasing and training the service animal to mitigate the person’s specific disability;

Note that I have not even considered the disabled person’s requests for damages for emotional distress and punitive damages associated with the injury or death of a service animal.

Unfortunately, the law has a long-standing perception that animals are mere “property.” When courts view pets as mere “property,” the plaintiff may not be able to win damages for emotional distress associated with the injury or loss of the service animal. An award for damages for emotional distress will largely depend on the jurisdiction where the case is tried, the judge’s views, as well as state law.

Fortunately, some courts have consistently recognized that animals, particularly dogs, are much more than mere “property.” This is a trend that will likely spread across the country as judges come to realize the importance of animals (and service animals) to human life. Despite this favorable trend, however, it will still be difficult to predict whether a judge will perceive a service animal as mere “property” or something much more than that.

As you can see, lawyers and judges have a lot of work cut out for them. They have to argue about many different issues to reach the ultimate question: “What is the legal value of a service animal and how much damages is a disabled person entitled to receive?”

Is this a correct interpretation of the law?

It appears so. The law that prohibits discrimination on the basis of disability on aircrafts falls under the Airline Carrier Access Act. The Federal Register, Vol. 68, No. 90 (May 9, 2003), page 24876 (available here), provides, in part:

“Although ‘service animals in training’ are not pets, the ACAA [Airline Carrier Access Act] does not include them, because ‘in training’ status indicates that they do not yet meet the legal definition of service animal. . . . [However] some airlines permit qualified trainers to bring service animals in training aboard an aircraft for training purposes.  Trainers of service animals should consult with airlines, and become familiar with their policies.”

The 2009 updated version of the Federal Register, page 103, provides identical language.

Based on these sources, it doesn’t appear that service-animals-in-training can accompany trainers on any airplane for training purposes unless airline grants permission to do so.

Bottom line: if you train service dogs and want to take them on a commercial aircraft, check with your service dog organization for recommended airline carriers and double-check with the airline to ensure that their policy hasn’t changed. The following blog post “How to travel with your Assistance or Service Dog, a step by step guide,” contains helpful tips to keep in mind when traveling. See also this post: “Flying with your Dog.”

Have a safe flight!

In that same blog article, I mentioned that the Columbia School District had argued that Carter could not bring his service dog to school because it was not in his IEP. I wondered how a judge would respond to that argument.

On December 17, 2009, Judge Wexxsten issued an opinion, granting a preliminary injunction permitting Carter to bring his service dog to school.

Put simply, a preliminary injunction is an order to do something or not to do something. It is a quick temporary remedy until the merits of the case are decided. Think of it as a band-aid that doesn’t stick a long time. In this case, the judge issued an order allowing Carter to bring his service dog to school. Carter’s right to bring his service dog to school is temporary, however, because the preliminary injunction does not answer the question, “Does Carter have a legal right to be accompanied by his service dog to school?” If the answer is “Yes,” then Carter will have a right to bring his service dog to school. If the answer is “No,” then Carter will not be able to bring his service dog to school.

In order to win a motion for a preliminary injunction, the moving party (e.g., Carter) must be clear and persuasive. In addition, the moving party must show all four basic elements to win the motion, in essence: (1) there is a right to do or not to do something; (2) harm could be caused if the motion is not granted; (3) there is no alternative; and (4) the moving party is likely to win on the merits.

Judge Wexxsten found that Carter was successful in arguing each of these four elements. Judge Wexxsten provided a clear and concise analysis, finding that Carter had a right to a service dog; that Carter would be harmed if he could not bring his service dog to school; that Carter had no alternative to having a service dog; and that Carter was likely to win on the merits.

Judge Wexxsten’s opinion is worth the read. A copy of the Kalbfleisch opinion may be downloaded here.

It is important that pet owners think about where they want their pets to end up after the owners pass away. Equally important, service animals can survive their disabled owners. But there are other reasons why it is important to consult with an attorney to prepare certain papers to ascertain that your pet is taken care of. Consider these three scenarios:

• You and your service animal have been involved in an accident. You are taken to the hospital, and your service animal is taken to the veterinarian. While you are incapacitated in the hospital, your service animal is in need of veterinary care. Is there anyone who can speak for you on behalf of your service animal? Is there anyone who can sign your checks or access your bank accounts to pay the veterinarian or veterinary hospital?

• You have been involved in an accident. Your service animal, however, is unharmed. While you are incapacitated in the hospital, who will be responsible for taking care of your service animal? Who will feed and bathe your service animal? Do you have an arrangement with anyone who will do so? Also, as long as you are in the hospital, the service animal will not be working. The longer you are in the hospital, it is possible that your service animal will forget what he or she has been trained to do. What is the best way to ascertain that your service animal remembers what he or she has been trained to do?

• You have passed away unexpectedly. Do you want your service animal to be returned to the organization that trained him or her? Do you want the service animal to be given to another person who has the same disability that you have? Or do you want the service animal to retire and live with a friend or family of your choice? Also, there are significant costs associated with feeding and bathing the animal, so consider leaving a reasonable sum of money to cover these costs for a reasonable period of time.

Each of the above scenarios should get you thinking about your service animals when you are not around to help. It is critical to realize that a Will only kicks in after the person passes away. Thus, under the first two scenarios, a Will will not help at all. Instead, other documents, such as power of attorney and financial power of attorney, will need to be prepared in order for your pets to be taken care of.

A good estate planner will provide you a questionnaire, and some of the questions should ask you about your pets. If there aren’t any questions about pets, tell the estate planner that you have a service animal and ask for their professional opinion.

If you’re new to the concept of pet wills and pet trusts, I highly suggest starting with the following blog posts: A Will… a way… to protect your Pets?, Can I put my pet in my will?, What is a pet trust?, and Why do I need a pet power of attorney? Each of these blog posts were written by Danny Meek, an attorney in Florida. His Pet Trust Blog is among the best and most informative blog on the subject I’ve seen anywhere. For more indepth analysis and technical aspects of drafting will provisions and establishing pet trusts, I highly recommend perusing the materials at Professor Beyer’s website, starting with Estate Planning for Non-Human Family Members.

This Montana case is about whether an employer is legally obligated to “accommodate service animals.”

This unique case resulted in a surprising outcome, perhaps in a way that no disability rights attorney or advocate could have predicted. Equally surprising is the fact that this case has gotten scant discussion in the blogosphere. (The only two I found were this one and that one.) I hope my readers will agree that this case merits discussion.

Let’s look at what happened in this case.

Janelle McDonald has a leg injury that makes it difficult for her to walk up the stairs, walk long distances, or walk on concrete. McDonald also suffers from various psychological disorders, including “chronic depression and disassociative identity disorder.” McDonald’s service dog is an Australian Shepherd named Bess who has been trained to provide physical support whenever McDonald needs to stand or walk. In addition, when McDonald experiences a psychological episode, Bess provides McDonald “tactile stimulation in the event of a dissociative episode” and brings McDonald “back into reality.”

McDonald’s office was located in a carpeted room. But the hallways leading to the restroom, elevator, meeting rooms, and building entrance/exit were tiled. McDonald alleged that Bess had “difficulty maintaining traction on the tile floors” and “slipped on these floors repeatedly.”

McDonald tried training Bess to maintain traction on the tiles. She also tried fitting Bess with boots so that Bess would not slip. Nothing seemed to work: Bess kept slipping and subsequently injured her shoulders, neck, and chin. Over a period of 17 months, McDonald repeatedly requested that her employer install non-skid floor coverings to prevent Bess from slipping any more. Soon, Bess had injured herself to a point where she could no longer work as a service dog. Bess retired, and McDonald found employment elsewhere. McDonald’s employer never installed the non-skid floor coverings or carpeting that McDonald requested.

McDonald filed a complaint against her employer. In essence, McDonald argued that her request for a non-skid floor covering was a reasonable accommodation and that the failure to provide the non-skid floor covering violated state law and the Americans with Disabilities Act.

The Supreme Court of Montana held that McDonald’s employer was legally obligated to install the non-skid flooring. In the court’s opinon, the non-skid flooring accommodation was not for Bess–rather, the accommodation was for McDonald because she depended on Bess. Therefore, the non-skid flooring was necessary “to enable McDonald to perform her job duties.”

The court drew an ingenious analogy:

The court went on to say:

The McDonald case is also interesting for other reasons that I have not covered here. I encourage disability rights attorneys and advocates to read the decision in its entirety and pay close attention to the arguments that McDonald’s employer raised and how the court dealt with those arguments. This case contains language that is persuasive and may have widespread implications outside of Montana.

In my opinion, McDonald v. Department of Environmental Quality is the most interesting (and perhaps the most significant) service animal case of 2009.

But all of that is based on Chinese astrology, which has a long and rich history.

I started this blog post with a brief description of the Chinese zodiac signs because I feel it is a good segue to my topic: the year 2009 was the Year of the (Service) Dog.

I suspect that there was probably more discussion, more debate, and more litigation about service dogs and service animals in 2009 than in past years. There are several reasons for this.

One reason is because our traditional notions of service animals are changing. Traditionally, we thought of service animals that assist the blind (“seeing-eye dogs”), the deaf or hearing impaired (“alert dogs”), and the physically disabled (“mobility service dogs”). Utilizing effective training methods, animal trainers can now train animals to assist children who are deathly allergic to peanuts, children with autism, and soldiers with post-traumatic stress disorder. There are service dogs that detect low blood sugar in people with diabetes. There are also service snakes, service ferrets, and service dogs that detect oncoming seizures in people who have epilepsy. Many of these service animals have been profiled in the newspapers across the country. I have talked about these service animals in previous blog posts, including Service Animals and the Law and especially in Should We Rethink the Concept of Service Animals?

A second reason has to do with the types of animals that are being used to mitigate the disability. We typically think of dogs as the creatures of choice to assist the physically disabled. But not all dogs may be able to perform certain tasks as well as other animals. This past year, there have been several news articles about various animals that are used as service animals, including miniature horses, monkeys, parrots, pigs, snakes, lizards, ferrets, and rats. I discussed the use of these creatures as service animals in a previous blog post, “Should We Rethink the Concept of Service Animals?” which included a discussion of two lengthy articles on the use of exotic creatures as service animals, Rebecca Skloot’s “Creature Comforts” and Joe Eskenazi’s “Service With a Snarl.” Other bloggers have also shared their reaction to use of exotic animals as service animals (see, e.g., Definition of ‘Service Animal’ Hotly Debated: Monkeys, Horses, Birds – Oh my! … Helper Parrots & Guide Dogs: Where to Draw the Line? … Man’s Use of Snake As A Service Animal … Everybody’s Got Something to Hide Except Me and My Service Monkey).

A third reason has to do with certain people who pawn their companion pets as service animals. I discussed the social problem of “fake service animals” in Badly Behaved ‘Service Animals’ and When Companion Pets Become Service Animals. By exposing people who are taking advantage of the system, the media is shedding light on the problems businesses and individuals with disabilities face when service animals visit places of public accommodations. Some businesses do not understand what they can and cannot do under the law. Individuals with disabilities who depend on their service animals face increasing scrutiny. And people who pretend to have disabilities and pretend that their pets are service animals cause multiple problems for both businesses and the people who depend on their service animals.

A fourth reason has to do with the fact that parents who have children with disabilities are becoming more knowledgeable about the Americans with Disabilities Act. Parents who learn about the Americans with Disabilities Act subsequently encourage their disabled child to take their service animal to school. Sometimes, the school will react negatively to the idea of a service animal brought to school. When this happens, the parents will often sue on behalf of their child; and when this happens, the press and bloggers will report the ongoing litigation between the parents and the school. Two closely watched cases this year involved Carter’s dog Corbin and Kaleb’s dog Chewey. I discussed potential arguments why schools don’t want service animals in schools in Service Animals in the Schools. I also discussed whether IEPs are required in order to for students to be accompanied by their service animals in Are IEPs Necessary for Service Animals?

A fifth reason has to do with new and proposed legislation permitting children to bring their service animal to school. Although a school may be a place of public accommodation as that term is used in the Americans with Disabilities Act, some state legislators want to enact laws that explicitly provide that children with disabilities may bring their service animals to school. By enacting such laws, the state seeks to eliminate the need for either the parents or the schools to litigate the matter, which saves time and money. The Governor of Virginia, Tim Kaine, recently signed a bill that explicitly require schools to permit children with disabilities to bring their service animals. New Jersey Senate Majority Leader Stephen Sweeney has recently proposed similar legislation.

What does the New Year have in store for us? Undoubtedly, more discussion, more debates, and possibly more litigation across the country regarding service animals. There will be more discussion about how to distinguish between service animals and companion pets. There will be more debates regarding whether exotic creatures can be trained to be service animals and whether dogs can “smell” an oncoming seizure or be trained to help autistic children from harming themselves. There will be more talk about whether service animals should be certified. We will likely see more service animals in the schools, on the streets, and in other places where the public is invited. This issue is not going away.

Happy New Year, everyone!

I read on and learned that Judge Ferguson is a volunteer service dog trainer who wants to see more dogs in the courtroom. Aptly referred to as “courthouse dogs,” these dogs would provide emotional support for jurors, witnesses, and victims, and reduce stress for all those in the courtroom.

Fascinating idea.

I researched this some more. While Jacksonville, Florida does not yet have any emotional support dogs at its courthouses, other jurisdictions do, including Harris County in Texas and King County, Washington. A video of Labradors at King County courthouse in Washington State is shown below:

Debra S. Hart-Cohen, an attorney, wrote in Canines in the Courtroom that there is evidence that the use of emotional support dogs has had a positive effect on everyone in the courtroom. Bloggers and attorneys alike have also been extremely receptive to the use of emotional support dogs in the courts in The Bark and Dancing Dog Blog. (There is even a podcast about this here and there.)

So, what types of dogs are qualified to work in the courthouse, when is it appropriate for the dogs to greet jurors and assist witnesses, and how should the dogs behave in the courtroom? Courthouse Dogs provides answers to these questions at this webpage: Using a Facility Dog in the Courtroom. One of the key points that Courthouse Dogs make is that a courthouse dog is different from a therapy dog. A therapy dog is one that is always leashed and held on to its handler. In contrast, a courthouse dog is not leashed and the handler is not near the dog at any time during the court proceedings. Furthermore, unlike therapy dogs, courthouse dogs are not actively seeking the attention of all those in the courtroom. Rather, courthouse dogs must have the ability to sit or lie down next to jurors or witnesses for extended periods of time and must not do anything to interfere with the questioning of witnesses or court arguments between lawyers.

Although research have suggested that there are therapeutic use of animals, and that humans become more grounded and emotionally stable as a result of their interactions with dogs, the notion of courthouse dogs is quite new. It remains to be seen whether courthouse dogs will be deployed in all courthouses across the country.

Until I read about Judge Ferguson, I’d not heard of courthouse dogs. As of this writing, Wikipedia doesn’t even have an entry for this type of working dog. If you ever see a courthouse dog in New Jersey, please let me know.