Agenda - 04-08-2014 - 2 - Laserfiche WebLink

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32 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 due to a land occupier's actions. In Harris v. Carbonneau, 685 A.2d 296 (Vt. 1996), for example, the court upheld a jury's finding of apparent consent to enter a home where the occupant opened the front door for a deputy serving a summons and backed up her wheelchair as the deputy stepped through the door. Id. at 299. Though the plaintiff had not affirmatively invited the defendant to enter her home, her actions could be reasonably interpreted as an invitation or consent to enter. (ii) Presence of a Dog as a Component of Implied Consent An interesting case where the presence of a dog influenced the court's evaluation of a claim for damages suffered by a door-to-door salesman is Gomes v. Byrne, 333 P.2d 754 (Cal. 1959). The Gomes court presented the facts of the case as follows: As [the plaintiff salesman] walked along the sidewalk approaching the gate leading to defendant's door, the dog in the enclosed yard followed him along the inside of the fence for about fifty feet, barking continuously all the way. Plaintiff nevertheless opened the gate and walked into the yard, whereupon the dog bit him on the right lower leg, causing a puncture wound and superficial abrasions. 333 P.2d at 754-55. On appeal, the plaintiff argued that he was lawfully on the defendant's premises at the time of the attack, and, therefore, the lower court erred by denying him recovery. The court found it unnecessary to reach this contention, and found that plaintiff assumed the risk of injury by entering the fenced area. While this holding clearly does not bear directly on the question of implied consent, one could reasonably argue that in the obvious presence of a continuously barking dog, societal custom suggests that a visitor may need to obtain some clear indication from the landowner that the visitor is authorized to approach the front door. To put it another way, in an implied consent analysis, both the visitor and the landowner are charged with conforming to societal custom. While a landowner must expect unannounced visitors from time to time, such visitors should carefully consider a decision to stride headlong into enclosed areas containing barking dogs. The implications of Gomes as described in the previous paragraph may have some relation to the concerns expressed by Animal Services regarding the removal of"watch dog" as a subdivision of the"security dog" definition. Correspondence from Animal Services suggests that there was a concern that the definition of watch dog was too broad, and, therefore, the definition was removed. An apprehension in response to the removal was that removing the watchdog subdivision may deprive property owners of the right to have a dog protect their property. These competing positions may be able to be resolved through the willful trespass exception if it is accepted that the presence of a"dog that barks and threatens to bite an intruder" (a partial quote from the removed definition of"watchdog")influences societal custom with respect to implied authorization to enter property. First, it is important to note that a"watch dog"—like any other dog—is exempt from classification as a vicious animal in the event the dog bites a willful trespasser(whatever that term may mean). Beyond this, as discussed above, societal custom may suggest that a dog which barks and threatens to bite intruders is a signal to 10