NO DOG HAS HIS DAY
Denver Post columnist Chuck Green recently reported that he's raised $39,000 from his readers to, as he puts it, "sue the creep" who poisoned two Wheat Ridge dogs last month. There's just one problem. He doesn't have a case.
Four columns into his crusade, the cash keeps flowing into the "Snowy and Keko Fund," and some legal experts are beginning to question the purpose of all the fundraising. According to Green's own columns, the money was to be used as a "legal expense fund for the [Rick Chinisci] family, to raise money for litigation" if they decided to sue Dan Winter, the confessed dog poisoner. Green has referred specifically to suing Winter for the "emotional pain [the Chiniscis] are suffering."
It was a call for revenge that set off a contribution spree--but this past Sunday Green started to backtrack, announcing that an attorney had agreed to take the case pro bono and that most of the funds raised would go toward animal-welfare causes.
A few of those causes must be getting pretty excited just about now. Under Colorado law, dogs are treated--however unfair it may seem--only as property. Their destruction at the hands of another, no matter how heinous, warrants nothing more than the reimbursement of the "fair market value" of the animal, generally not more than a few hundred dollars. To raise $39,000 to sue someone for less than a hundredth of that amount is a questionable strategy at best.
"It's nuts," says Colorado lawyer and national canine law expert Linda Cawley of Dog Law Inc. "To...litigate doesn't make any sense."
Cawley should know. She's already taken a case of the senseless killing of a family pet up to U.S. District Court and lost. In 1992 Cawley sued on behalf of the owners of a thirteen-year-old black Labrador retriever that was shot by a Douglas County reserve deputy sheriff in its own backyard. According to Cawley, the officer had accompanied two Public Service employees who were at the house to remove the meter because of unpaid electric bills. "The dog didn't even have any teeth," Cawley says. "He couldn't have bitten if he wanted to...The sheriff was afraid of dogs and trigger-happy. He just pulled out his gun and shot him in the head." The complaint filed in U.S. District Court charged the deputy, Jeffrey Gamet, the Douglas County Sheriff's Department and the Board of County Commissioners with the intentional killing of a dog, deprivation of property, negligence, negligent affliction of emotional distress, trespass, trespass to chattels, conversion of property, public nuisance (endangering others), private nuisance, invasion of privacy, negligent hiring, negligent training and supervision, negligent furnishing of firearms and negligent failure to terminate. Damages sought totaled $400,000, the statutory limit for a suit against the county in such a case.
But the judge threw the case out, telling the plaintiffs there just wasn't any remedy for them under Colorado law. "The judge dissuaded the plaintiffs from proceeding because the law in Colorado would not support any worthwhile recovery in light of the damages," Cawley explains. "He even said to them that the value of the dog at the pound would be about $50--and to go buy a new dog."
Jim Boyd, an attorney in Aspen who has consulted on similar cases, agrees with Cawley's assessment of Colorado law. "You're limited to the commercial value of the dog," he says. "In the case of a dog you got at the pound, that amount could be zero. If you had a purebred, you could get a few hundred dollars. But any pain and suffering, which would be what would lead to substantial damages in a wrongful-death suit, isn't available under Colorado law."
Rick Chinisci, the soft-spoken owner of Snowy and Keko, says he hasn't made up his mind what to do yet about suing Dan Winter. Winter has admitted to poisoning Chinisci's dogs, a seven-year-old Samoyed and a two-year-old bichon frise, with poisoned meat in early October. While the dogs were suffering the effects of the poison but still alive, Winter reportedly stopped by the Chinisci house and asked, "Are they dead yet?" Eventually, the dogs had to be euthanized, and Winter was arrested and charged with two misdemeanor counts of animal cruelty, which could result in ninety days in jail and a fine of up to $999 per count. Winter's arraignment took place this past Monday at Wheat Ridge Municipal Court. Neither Winter nor his attorney appeared; instead, they pled not guilty by fax. A pretrial hearing is scheduled for December 4.
Chinisci has said he would "wait for the outcome of the hearing," but clearly, he's considered the details of such a move. When asked if he's aware that it's impossible to get punitive damages in wrongful-dog-death cases, he replies, "Yeah, but there were other factors, too, like negligence. There were kids there; they could've been hurt. And there were other things. I can't comment on it."
However, Cawley points out that she used similar arguments in her '92 case. "There were the exact same causes of action," she says. "[The dog killer] was putting everyone in danger--that's why we charged negligence and public nuisance in our case. The point is, no matter what sort of negligence you can prove, the damages all come down to the fair market value of the dog. That's it."
Cawley thinks the money raised by Green would be better used to change the law in Colorado so that future plaintiffs could collect punitive damages for the wrongful killing of their pets.
Chinisci says he has no plans currently to use the money to lobby for legislative changes. "But the Humane Society, or whoever gets the money [that isn't used for litigation], will probably use it for something like that," he says. Chinisci says the family hasn't yet decided what animal-welfare groups, if any, would most benefit from any "leftover" money.
Green bristles at the suggestion that he's been raising money for a hopeless cause. "I don't want to play lawyer with you," he says. "I'll save that for my own copy." When pressed, he admits "there's some dispute" about whether the Chiniscis have a case.
Mary Kay Kormos, the veterinarian in Wheat Ridge who cared for Snowy and Keko before their deaths, says she'd be surprised if the Chiniscis couldn't recover at least their medical expenses. "I know we carry malpractice insurance to cover just such suits," Kormos says. "There are cases all the time where people sue vets for loss of income from animal or hospital bills."
But veterinarians are sued under a contract-for-services law, not wrongful death. Explains Cawley: "Like if you paid someone to repair your transmission and they didn't. That's a contract--you get the value of the contract, regardless of how much your car is worth."
In the case of Keko and Snowy, there was no contract between Dan Winter and the owners. "All you owe is the damage," says Cawley.
And in Colorado, that's barely kibble.
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