Who may be held legally liable for emotional support animal attacks?

In December 2017, a 5-year-old girl was mauled by a pit bull at Portland International Airport. The incident allegedly occurred when the mother of the victim left to buy coffee. The girl was with her older brother when she noticed the dog and approached the owner to ask for permission to pet it. The dog then attacked the girl’s face, tearing off a part of her lip, severing one of her tear ducts, and causing other facial injuries.

Reconstructive surgery left the victim with scars, and in March of 2019, the mother filed a lawsuit against Alaska Airlines, the Port of Portland, and the dog’s owner.

The transport of pets is heavily regulated by airports and airlines, which normally require  that pets be kept in a kennel or cage. However, the dog in question was designated as an emotional support animal by the owner. This distinction means that the pit bull and its owner did not need to follow the same rules that govern pets during air travel.

To better understand the problem, let’s establish what an emotional support animal is.

Emotional support animals (ESAs) are animals that a medical professional has signed off as providing some benefit for persons who are disabled, or are affected by mental health conditions or emotional disorders.

However, these animals are not recognized by the law as service animals. In the United States, service animals are regulated under the Americans with Disabilities Act of 1990. In 2011, the law was revised so that only specially trained dogs could be categorized as service animals, with some allowances being made for miniature horses.

In contrast, emotional support animals often do not receive the training or behavioral conditioning that service animals undergo. Additionally, ESAs consist of a much wider range of animals, including cats, birds, pigs, and even turkeys.

Who may be held legally liable for emotional support animal attacks
Many emotional support animals act, and are treated like pets, rather than service animals. This distinction potentially means that they are less suited for airports or airliners.

According to current rules and regulations, ESAs can be allowed aboard an aircraft if the owners can provide:

  • Current documentation from a licensed mental health professional, no older than one year, that confirms the passenger’s mental-health disability listed within the DSM IV.
  • Documentation must show that the animal must accompany the passenger as part of their treatment.
  • Proof of the health professional’s license, state of jurisdiction, and that they are the provider of care for the passenger.

Despite these requirements, there is growing concern that not every animal designated as an ESA is legitimate. While there are no hard numbers to support this concern, there are a considerable number of online businesses that allow pet owners to “register” their animals as ESAs on non-official databases, or promise free screening with quick turnarounds on any necessary paperwork. The number of cheap registration sites has left doctors and government officials alike scrambling to explain to the public the reality of these online registration scams.

Emotional support animal attacks and incidents have become more common as airlines attempt to accommodate ESA owners and the law.

The incident in Portland is far from the only one of its kind. In June 2017, a Delta Airlines passenger was bitten by a 50-pound emotional support dog during the boarding of Flight 1430. The attack resulted in severe lacerations across the victim’s face, and a puncture wound to the upper lip.

In another incident, a child was attacked by an ESA in Phoenix, Arizona in 2018, during the boarding of Southwest Airlines Flight 1904. The victim in this case escaped the serious injuries seen in other attacks.

But not every incident involves a mauling. Between 2016 and 2018, airlines reported an 84 percent increase in disturbances caused by ESAs aboard aircraft, with reports of urination, defecation, and loud behavior all on the rise.

Despite concerns from lawmakers and the general, existing regulations have made efforts to bar these support animals from aircraft difficult.

Airlines can deny boarding to more exotic animals, as seen when United Airlines barred an emotional support peacock from boarding a flight in 2018, but are otherwise beholden to the 1986 Air Carrier Access Act. This act allows for the free travel of animals that have been trained to assist persons with a disability, or provide emotional support.

The rise in incidents have placed ESAs under negative public and legal scrutiny. The US Department of Transportation is anticipated to unveil a series of rule changes in 2019 that will allow airlines more leeway to deny boarding to emotional support animals. But as of this writing, these changes have yet to be announced. A number of airlines have altered their rules to limit the size of ESAs allowed aboard aircraft, but for now the current federal rules are still in place, with most changes happening at the state level.

Who may be held legally liable for emotional support animal attacks?
The new size restrictions mean that even this dog and the bag might be barred from future flights. But until federal regulations change, these new airline rules could potentially be contested in court.

The lawsuit for the Portland incident names multiple defendants. Could they all be considered liable for the attack?

In most animal attack or dog bite cases, the owner of the animal is often the target of lawsuits. But the Portland lawsuit specifically named multiple potentially liable entities, accusing them all of playing a role in the incident. Each defendant presents a unique legal quandary.

Owner Liability

Pet owners with dangerous dogs can be held liable for the actions of their animals, though this does differ from state to state.

The lawsuit claims that the owner knowingly brought a dangerous animal to the airport. If this can be proven, the owner could potentially be held liable for the injuries caused by the dog. Additionally, if the dog was a known threat, then failing to properly secure the animal could also play a role in the case.

However, with the pit bull in this case designated as an ESA, the owner was legally within their rights to bring the animal to the airport. Support dogs can wear vests that designate them as such, with a sign that discourages contact. This is NOT required by law, and the owner could potentially argue that their dog was somehow provoked by the child.

Airline and Airport Liability

Alaska Airlines changed rules for ESAs as recently as October 2018. But at the time of the incident, the rules were considerably more lax. The lawsuit claims that the company failed its due diligence in ensuring the security of both passengers and the animal in question. The Port of Portland, which operates the Portland International Airport, also faces claims of negligence for allowing the animal to pass into the airport.

However, with the existing federal regulations that govern air travel with ESAs, and the legal requirements for ESAs in general, Alaska Airlines could argue that it was following the letter of the law. It could potentially come down to whether the airline staff or airport personnel who cleared the dog for entry were aware of its aggressive behavior.

Government Liability

The government could potentially face liability for similar cases in the future. While the state of Oregon and the federal government were not named in this lawsuit, the potential rule changes on the way from the DOT suggest an understanding that current laws are creating a potentially dangerous environment for air travelers.

Medical and Veterinary Professional Liability

ESAs must be cleared by a currently practicing and licensed doctor as being necessary to their owner. But as the current laws stand, no ESA undergoes the same rigorous training seen by service dogs.

With airlines having begun a rapid effort to adjust their rules surrounding ESAs in flight, doctors potentially find themselves in the legal crosshairs. Medical professionals could face increased scrutiny on the patients they clear for the use of an ESA, and the medical reasons they use to justify them.

Veterinarians could also see liability in future incidents, with United Airlines requiring paperwork for fully-licensed vets to  ‘sign off’ on, guaranteeing that the pet is safe for travel, or to indicate whether it requires specific safety measures. Other airlines are considering similar requirements, or have already implemented rules that are more or less stringent.

How this lawsuit plays out could affect how legislation is drafted, how future incidents will be dealt with, and how airlines will accommodate ESAs in the future. For now, they will continue to fly the friendly skies with the rest of us, along with all the legal questions they bring with them.

If you do find yourself the victim of an emotional support animal attack, we recommend you seek local legal counsel. Laws for animal attacks and dog bites differ from state to state, which can affect how your case plays out.

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