Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.

Pomeranian isn't a child, but must be shared by separating human parents, court rules in equity

Pexels, licensed, by Tiểu Bảo Trương (not Teddy Bear)

Who's a good boy?

A Pomeranian named Teddy Bear will split his time between his adoptive parents since their separation, the Massachusetts Appeals Court ruled yesterday in a 20-page opinion.

"Dog" is my favorite keyword atop a Mass. court decision, and it was the first one here. Teddy Bear's legal status as beloved personal property was at issue.

In the plaintiff and defendant's separation, they agreed to share custody of Teddy Bear on alternating weeks. Over time, the arrangement soured, and, according to the plaintiff, the defendant played the nine-tenths-of-the-law card.

The plaintiff sued, and the motion judge of the Superior Court (Shannon Frison, since returned to practice) ordered that Teddy Bear's alternating schedule be restored. The defendant appealed, and a single justice of the Appeals Court (Marguerite T. Grant, as long as we're naming names) vacated the motion judge's order. (Attorney Justin R. McCarthy has some of the court docs uploaded.)

The single justice opined that "the motion judge had improperly treated Teddy Bear as if he were the parties' child." The equitable remedy of specific performance ordered by the motion judge would be suitable for a case of child custody, the single justice reasoned, but is not appropriate to the disposition of personal property. Rather, the defendant, if held responsible, would owe damages for conversion.

The plaintiff then appealed, and the three-judge panel of the Appeals Court sided with the plaintiff.  The single justice erred, and specific performance is a suitable remedy.

Alas, for poor Teddy Bear, the plaintiff prevailed not because a dog is more than mere chattel, a sentient creature capable of love for both his feuding parents.

Rather, the Appeals Court determined, it is simply so that a court possesses the equitable power to enforce a contract relating to personal property and "grant relief for delivery of a thing wrongfully withheld."  The usual rule of injunction pertains to require that "the remedy at law for damages would be inadequate."

Teddy Bear got some cred on the inadequacy analysis. Quoting the Restatements of Contracts, the court wrote that personal property may have sentimental value that well exceeds its market value: "Contracts may be specifically enforceable because they involve a grandfather's clock, even though it will not run, a baby's worn-out shoe, or faithful old Dobbin the faithful horse whose exchange value in the market is less than nothing."

Moreover, the court observed, the motion judge did not fashion an equitable order from whole cloth. Rather, the plaintiff asked the court to enforce a contract that the private parties already had worked out and already had executed on in the past. Thus, it was not so that the motion judge had treated Teddy Bear as if he were a child.

The Appeals Court decision thus accords with the contemporary trend in tort law, a welcome departure from historical common law, to quantify the value of pets to account for their emotional value to their owners, more than their mere replacement or resale value, which might be nought.

The case is Lyman v. Lanser (Mass. App. Ct. Mar. 7, 2024). Justice Peter W. Sacks wrote the opinion of the unanimous panel, which also comprised Justices Brennan and D'Angelo.

Teddy Bear's a good boy; that's who.

South American visitor wonders at lawyer billboards; artist imagines canine advocates instead

A young man I know from Paraguay recently visited the Philadelphia area for a week, his first time in the United States.

I texted to check on him when he returned home to Asunción. He had a great visit, was home safe and exhausted, he texted back, and had seen so much, it would take a while to process it all.

But one question, he wrote.

 

Hmm.

I guess Americans get in a lot of accidents, I said. 

No, actually, I just texted, "🤑." I think that covered it.

Lawyer advertising is the theme of some delightful imaginings in a canine vein by Kensington Campbell: Instagram embed below. See more there or on TikTok. Hat tip @ Molly Sullivan and Frances Fendler.

View this post on Instagram

A post shared by Golden Retriever | Kensington (@kensingtoncampbell)

NYPD seizes adorable dog, person too, in retaliation for video-recording in public, attorney-plaintiff alleges

A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.

Harvey (Compl. ¶ 36)

The NYPD messed with the wrong person. As the complaint tells it, Molly Griffard, an attorney with the Cop Accountability Project of the Legal Aid Society (Equal Justice Works), was walking her dog, Harvey, in the Bedford-Stuyvesant neighborhood of Brooklyn when "she saw police officers remove a young man from a bodega, and drag him around the corner where they lined him up with other young men against a wall."

Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.

Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.

Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here. 

Harvey (Compl. ¶ 20)

At its fringe, the case might be said to implicate animal rights, or at least the rights of owners of domesticated animals. Courts in the United States and elsewhere in the world are coming around to the idea that domesticated animals such as cats and dogs have a value exceeding their market worth as personal property, especially in the area of tort damages when the animals come to harm.

Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.

One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."

The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).

After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

Pxhere CC0

In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.

Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement.  They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.

The plaintiff argued that the settlement agreement precluded appeal.  But it didn't say that.  Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals.  At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.

Regarding the high-low agreement, the court found "little law in Massachusetts."  More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005.  An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million.  Virginia attorneys advised on drafting the agreements in 2007.

In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance.  Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.

The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined.  Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0

In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA

Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Patrick Stewart and Dinero the Dog

in Star Trek: Picard (2020) (© CBS 2019)

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA

Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.

In memoriam: Cassandra M. Langtry, JD class of '23

I'm saddened to share news of the passing of Cassie Langtry, a law student in my fall 2019 Torts I class, on January 15.   

An obituary recounting a full and generous life is posted at the Luzerne, Pennsylvania, funeral home, along with tributes and memories from friends and loved ones, including her law school classmates.  I knew of Cassie's affection for dogs, and the obituary remembers her love for her Comet and Scout.  She also liked reading and kayaking, so our hobbies overlapped quite a bit.  I did not know of her devotion to faith, but I am not surprised to learn that she served with World Challenge in Ecuador and instructed youth at her church in West Harwich, Massachusetts.  

In lieu of flowers or gifts to honor and remember Cassie, donations are sought for the Best Friends Animal Society, an organization dedicated to the protection and rescue of animals.

Cassie passed on the same day as a death in my family, of Gloria Buzi.  Gloria was a generous soul who relished retirement on Maryland's eastern shore.  A great many years of age separated Gloria from 24-year-old Cassie.  The difference might tempt one to a bitterness over lost potential, but I think it rather an occasion to recognize the distinctive gift and ultimately unknowable reverberations of every life.

UMass Law SALDF hosts speaker to explain service animals and ADA compliance

The UMass Law chapters of the Student Animal Legal Defense Fund (SALDF) and the Asian Pacific Law Students Associations (APALSA) co-hosted speakers including Evan C. Bjorklund, general counsel of the Massachusetts Office on Disability (MOD), in late January for a public event about service dogs and public accommodation laws.  Bjorklund's talk was recorded and produced for air by DCTV educational access.  View the video at DCTV here.

Evan Bjorklund on DCTV: Service Animals and ADA Compliance

UMass Law APALSA is led by Mali Lim, who by day is human services coordinator for community education and diversity for the City of New Bedford, Massachusetts.  UMass Law SALDF officers are Kayla Venckauskas, president; Barnaby McLaughlin, vice president; Kerina Silva, treasurer; and Kseniya Ruzanova, secretary.  Venckauskas was just appointed 2018-2019 editor in chief of the UMass Law Review and McLaughlin 2018-2019 I.T. editor.  Ruzanova is a member of Team 1L Torts.  Yours truly serves as faculty co-adviser for SALDF.