Miller v. City of Rutland, No. 513-7-10 Rdcv (Cohen, J., Aug. 19, 2010)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION Rutland Unit Docket No. 513-7-10 Rdcv
WILLIAM MILLER and MARTINA MILLER, Plaintiffs
v.
CITY OF RUTLAND, Defendant
DECISION ON APPEAL OF VICIOUS DOG DETERMINATION
This is an appeal from a determination by the City of Rutland Board of Alderman
that William and Martina Miller’s dog, Zoey, is vicious and should be permanently
removed from the city. On July 15, 2010, this Court conducted a de novo trial in which it
took testimony. At the conclusion of the trial, the Court appointed a special veterinary
master to examine Zoey. The Millers were represented by Matthew Hart, Esq. The City
of Rutland was represented by City Attorney Andrew Costello.
FINDINGS OF FACT
(1) William and Martina Miller reside on Davis Street in Rutland.
(2) The Millers own an eight year old black lab-mix dog named Zoey.
(3) On April 3, 2010, John Moore was walking his dog at Ciofreddi Park at
Northeast School in Rutland when he saw two dogs in the distance
running towards him.
(4) The two dogs were the Millers’ dogs, Zoey and Lucy. While leashes were
attached to the dogs’ collars, Mr. Miller had control of neither of them. (5) Mr. Moore’s dog was a rat-terrier mix. His dog was leashed and under
control.
(6) Mr. Moore picked up a stick for protection to scare the dogs away in case
they came towards him.
(7) Zoey attacked Mr. Moore’s dog and got her teeth around the dog’s neck in
what Mr. Moore described as a kill position.
(8) Mr. Moore believed he had to wrestle Zoey off of his dog or his dog
would die.
(9) Mr. Moore inserted his hand into Zoey’s mouth in order to pry Zoey’s
jaws off of his dog’s neck.
(10) Mr. Moore cut his thumb on Zoey’s teeth and he began to bleed heavily.
He required medical attention.
(11) Zoey did not bite Mr. Moore.
(12) Mr. Miller was finally able to get control of Zoey and leash the dog.
(13) Mr. Moore’s dog had puncture wounds on her neck. His dog required
veterinary attention. Mr. Moore’s dog lived.
(14) Mr. Miller was issued a municipal ticket for Zoey’s action in molesting a
passerby.
(15) Mark Montgomery is a postal carrier for the United States Postal Service.
He has been a letter carrier for 32 years and is the carrier on the route that
serves the Millers’ residence.
(16) In 2008, Mr. Montgomery encountered Zoey twice while delivering mail.
(17) The first incident occurred when Zoey escaped from the Millers’ backyard
2 and attacked Mr. Montgomery across the street. Mr. Montgomery fought
Zoey off with his mail bag. Zoey did not bite Mr. Montgomery.
(18) The second incident occurred when Mrs. Miller was walking Zoey and
Zoey backed out of her collar. Again, Zoey came at Mr. Montgomery and
he was forced to defend himself with his mailbag. Zoey did not bite Mr.
Montgomery on this occasion.
(19) Mr. Montgomery testified that Zoey did not listen to any commands from
Mrs. Miller.
(20) William Miller, to dog’s owner, testified that Zoey had been a good family
pet since her adoption.
(21) Throughout Zoey’s life she has been around people, including children of
all ages, without showing evidence of aggression.
(22) At the conclusion of the trial, the Court appointed Veterinarian R.M.
Dunton to examine Zoey for aggressive and vicious behavior.
(23) Dr. Dunton is a licensed veterinarian with over 30 years experience in the
general practice of veterinary medicine.
(24) Dr. Dunton has provided consultation to many clients regarding their
dogs’ behavioral problems. She has also raised and trained eight dogs.
(25) On July 20, 2010, for about one hour, Dr. Dunton examined Zoey for
aggressiveness. The examination took place at Dr. Dunton’s clinic with
Attorneys Hart and Costello present. The Millers were not present.
(26) At the clinic, Zoey accepted interaction with Dr. Dunton and a stranger in
the waiting area.
3 (27) Once in the examination room, Zoey accepted contact but did not relax.
(28) Dr. Dunton took a mop out of a closet and moved towards Zoey with it.
Zoey looked away from the stick-like object. Dr. Dunton then poked her
and stroked her with the mop. Zoey looked away and did not react
otherwise.
(29) Dr. Dunton left the room and returned with a dog on a leash. Zoey
interacted naturally with the dog in a relaxed manner, with her tail in a
neutral position and with her face relaxed.
(30) Dr. Dunton then brought in a dog with aggressive tendencies. The second
dog snarled at Zoey. Zoey looked away, put her head down, and moved
away from the dog. Dr. Dunton observed that Zoey’s nervousness around
her did not increase after seeing the aggressive dog.
(31) Dr. Dunton then took Zoey to the basement of the clinic, which was dark
and close. Dr. Dunton attempted to put Zoey in a kennel cage, but she
resisted. Dr. Dunton then picked Zoey up and put her in the cage. Zoey
immediately sat down.
(32) Dr. Dunton put her hands through the bars of the cage. Zoey ignored that
action.
(33) When Dr. Dunton opened the cage and attempted to put a lease on Zoey,
Zoey accepted the leash and made not attempt to escape or avoid contact.
(34) In Dr. Dunton’s opinion, while Zoey is a dog that has some fear of
strangers and new situations, at no time during the examination did she
display any aggressive behaviors. To the contrary, Zoey avoided situations
4 where aggression could have been triggered.
(35) Dr. Dunton acknowledged that dogs may act differently in other situations
and dogs are sometimes protective of their owners. Dr. Dunton did not
know how Zoey would have responded to situations similar to ones at the
clinic if her owners had been present.
(36) Dr. Dunton recommended a full physical examination in order to rule out
metabolic and physical reasons for abnormal behaviors.
CONCLUSIONS OF LAW
The Rutland Board of Alderman found the Millers’ dog, Zoey, to be a “vicious”
dog under the city ordinance. The Board ordered the Millers to remove Zoey from the
City of Rutland. Vermont Rule of Civil Procedure 75 provides for Superior Court review
of any action by a political subdivision of the State, including any department, board,
commission, or officer, if review is not set forth by statute. Thus, review of the Board of
Alderman’s action is appropriate under V.R.C.P. 75. The Court may affirm, reverse, or
modify the decision. V.R.C.P. 75(d).
The City of Rutland has its own rules relating to vicious dogs, which are set forth
in Rutland Ordinance Title 13, Chapter 1. Under the ordinance, a “vicious dog” means “a
dog which attacks or bites a person or other domestic pet and the person or pet attacked
or bitten requires medical attention.” City of Rutland Ordinance § 13-2552(e).
Upon a written complaint that a dog is alleged to be vicious, the Board of
Alderman may hold a hearing on the acts of the complaint and, if the dog is found to be
vicious, make such order as necessary to protect the public. City of Rutland Ordinance
§ 13-2557(a).
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Miller v. City of Rutland, No. 513-7-10 Rdcv (Cohen, J., Aug. 19, 2010)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION Rutland Unit Docket No. 513-7-10 Rdcv
WILLIAM MILLER and MARTINA MILLER, Plaintiffs
v.
CITY OF RUTLAND, Defendant
DECISION ON APPEAL OF VICIOUS DOG DETERMINATION
This is an appeal from a determination by the City of Rutland Board of Alderman
that William and Martina Miller’s dog, Zoey, is vicious and should be permanently
removed from the city. On July 15, 2010, this Court conducted a de novo trial in which it
took testimony. At the conclusion of the trial, the Court appointed a special veterinary
master to examine Zoey. The Millers were represented by Matthew Hart, Esq. The City
of Rutland was represented by City Attorney Andrew Costello.
FINDINGS OF FACT
(1) William and Martina Miller reside on Davis Street in Rutland.
(2) The Millers own an eight year old black lab-mix dog named Zoey.
(3) On April 3, 2010, John Moore was walking his dog at Ciofreddi Park at
Northeast School in Rutland when he saw two dogs in the distance
running towards him.
(4) The two dogs were the Millers’ dogs, Zoey and Lucy. While leashes were
attached to the dogs’ collars, Mr. Miller had control of neither of them. (5) Mr. Moore’s dog was a rat-terrier mix. His dog was leashed and under
control.
(6) Mr. Moore picked up a stick for protection to scare the dogs away in case
they came towards him.
(7) Zoey attacked Mr. Moore’s dog and got her teeth around the dog’s neck in
what Mr. Moore described as a kill position.
(8) Mr. Moore believed he had to wrestle Zoey off of his dog or his dog
would die.
(9) Mr. Moore inserted his hand into Zoey’s mouth in order to pry Zoey’s
jaws off of his dog’s neck.
(10) Mr. Moore cut his thumb on Zoey’s teeth and he began to bleed heavily.
He required medical attention.
(11) Zoey did not bite Mr. Moore.
(12) Mr. Miller was finally able to get control of Zoey and leash the dog.
(13) Mr. Moore’s dog had puncture wounds on her neck. His dog required
veterinary attention. Mr. Moore’s dog lived.
(14) Mr. Miller was issued a municipal ticket for Zoey’s action in molesting a
passerby.
(15) Mark Montgomery is a postal carrier for the United States Postal Service.
He has been a letter carrier for 32 years and is the carrier on the route that
serves the Millers’ residence.
(16) In 2008, Mr. Montgomery encountered Zoey twice while delivering mail.
(17) The first incident occurred when Zoey escaped from the Millers’ backyard
2 and attacked Mr. Montgomery across the street. Mr. Montgomery fought
Zoey off with his mail bag. Zoey did not bite Mr. Montgomery.
(18) The second incident occurred when Mrs. Miller was walking Zoey and
Zoey backed out of her collar. Again, Zoey came at Mr. Montgomery and
he was forced to defend himself with his mailbag. Zoey did not bite Mr.
Montgomery on this occasion.
(19) Mr. Montgomery testified that Zoey did not listen to any commands from
Mrs. Miller.
(20) William Miller, to dog’s owner, testified that Zoey had been a good family
pet since her adoption.
(21) Throughout Zoey’s life she has been around people, including children of
all ages, without showing evidence of aggression.
(22) At the conclusion of the trial, the Court appointed Veterinarian R.M.
Dunton to examine Zoey for aggressive and vicious behavior.
(23) Dr. Dunton is a licensed veterinarian with over 30 years experience in the
general practice of veterinary medicine.
(24) Dr. Dunton has provided consultation to many clients regarding their
dogs’ behavioral problems. She has also raised and trained eight dogs.
(25) On July 20, 2010, for about one hour, Dr. Dunton examined Zoey for
aggressiveness. The examination took place at Dr. Dunton’s clinic with
Attorneys Hart and Costello present. The Millers were not present.
(26) At the clinic, Zoey accepted interaction with Dr. Dunton and a stranger in
the waiting area.
3 (27) Once in the examination room, Zoey accepted contact but did not relax.
(28) Dr. Dunton took a mop out of a closet and moved towards Zoey with it.
Zoey looked away from the stick-like object. Dr. Dunton then poked her
and stroked her with the mop. Zoey looked away and did not react
otherwise.
(29) Dr. Dunton left the room and returned with a dog on a leash. Zoey
interacted naturally with the dog in a relaxed manner, with her tail in a
neutral position and with her face relaxed.
(30) Dr. Dunton then brought in a dog with aggressive tendencies. The second
dog snarled at Zoey. Zoey looked away, put her head down, and moved
away from the dog. Dr. Dunton observed that Zoey’s nervousness around
her did not increase after seeing the aggressive dog.
(31) Dr. Dunton then took Zoey to the basement of the clinic, which was dark
and close. Dr. Dunton attempted to put Zoey in a kennel cage, but she
resisted. Dr. Dunton then picked Zoey up and put her in the cage. Zoey
immediately sat down.
(32) Dr. Dunton put her hands through the bars of the cage. Zoey ignored that
action.
(33) When Dr. Dunton opened the cage and attempted to put a lease on Zoey,
Zoey accepted the leash and made not attempt to escape or avoid contact.
(34) In Dr. Dunton’s opinion, while Zoey is a dog that has some fear of
strangers and new situations, at no time during the examination did she
display any aggressive behaviors. To the contrary, Zoey avoided situations
4 where aggression could have been triggered.
(35) Dr. Dunton acknowledged that dogs may act differently in other situations
and dogs are sometimes protective of their owners. Dr. Dunton did not
know how Zoey would have responded to situations similar to ones at the
clinic if her owners had been present.
(36) Dr. Dunton recommended a full physical examination in order to rule out
metabolic and physical reasons for abnormal behaviors.
CONCLUSIONS OF LAW
The Rutland Board of Alderman found the Millers’ dog, Zoey, to be a “vicious”
dog under the city ordinance. The Board ordered the Millers to remove Zoey from the
City of Rutland. Vermont Rule of Civil Procedure 75 provides for Superior Court review
of any action by a political subdivision of the State, including any department, board,
commission, or officer, if review is not set forth by statute. Thus, review of the Board of
Alderman’s action is appropriate under V.R.C.P. 75. The Court may affirm, reverse, or
modify the decision. V.R.C.P. 75(d).
The City of Rutland has its own rules relating to vicious dogs, which are set forth
in Rutland Ordinance Title 13, Chapter 1. Under the ordinance, a “vicious dog” means “a
dog which attacks or bites a person or other domestic pet and the person or pet attacked
or bitten requires medical attention.” City of Rutland Ordinance § 13-2552(e).
Upon a written complaint that a dog is alleged to be vicious, the Board of
Alderman may hold a hearing on the acts of the complaint and, if the dog is found to be
vicious, make such order as necessary to protect the public. City of Rutland Ordinance
§ 13-2557(a). Such an order may include, but is not limited to, any of the following:
5 confinement in a secure enclosure or other similar restriction, muzzling, adoption, or
destruction in a humane manner. Id. In addition, the Board may revoke the privilege of
any owner to keep, harbor, or have custody of any animals while in the City and that no
new privileges be granted. City of Rutland Ordinance § 13-2557(a).
The Court finds that the Millers’ dog, Zoey, fits under the City of Rutland’s
definition of a “vicious dog.” Zoey attacked and bit Mr. Moore’s dog, which was a
domesticated pet. Mr. Moore’s dog required medical attention for the puncture wounds
on her neck.
In Dr. R.M. Dunton’s opinion, however, while Zoey is a dog that has some fear of
strangers and new situations, at no time during her court-ordered examination did she
display any aggressive behaviors. According to Dr. Dunton, Zoey avoided situations
where aggression could have been triggered. This included meeting strangers and getting
poked by a mop.
The Court concludes that the Miller’s dog, Zoey, committed a vicious act and is a
“vicious dog” under the City’s broad definition. However, the dog is not vicious to the
point where needs to be permanently banished from the City of Rutland. Zoey must be
kept under control by her owners at all times to avoid any further vicious acts.
ORDER
For the reasons state herein, the Court orders that:
(1) The banishment order by the City of Rutland Board of Alderman is lifted.
(2) William and Martina Miller must keep complete control over their dog Zoey
at all times.
(3) In accordance with Dr. Dunton’s recommendation, the Millers shall have a
6 Veterinarian conduct a full physical examination on Zoey. This will include a
complete blood count, chemistry panel, urinalysis, and a thyroid check (T4
and TSH).
(4) The Millers shall consult with a Veterinarian regarding aggression training for
Zoey and shall follow the recommendation of the Veterinarian.
Dated at Rutland, Vermont this _____ day of ________________, 2010.
____________________ Hon. William Cohen Superior Court Judge