The following article with 2 appendices is rather long, but I think it is
important that it be disseminated as widely as possible. I'm forwarding
this with permission of Thomas Cunningham, who wrote this summary.
(Thomas is a member of the Small Mammals section of the CompuServe Pets
Forum, of which I am co-section leader. It also is available in the Small
Mammals library/Library 11 of the Pets Forum, under the title PAFERR.TXT.)
I have the address of the Susquehanna Valley Ferret Club, for anyone
interested in pursuing this further, or making a contribution to help
defray legal costs. The club is working with Pennsylvania legislators to
get ferrets written into Pennsylvania law as domestic animals, to remove
the threat of such an action arising again in PA.
---------------------
Katie Fritz
Small Mammals Section Leader/CompuServe Pets Forum
Internet: [log in to unmask] CIS: 71257,3153
Begin Forwarded Message:
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"The Gallick Case:
Not A Good Time To Be A Ferret In Pennsylvania"
By Thomas J. Cunningham, B.S., J.D.
In 1991, a ferret owned by two individuals who were residents
of Pennsylvania allegedly bit an infant who had been placed on the
floor of a bedroom where the ferret was loose. The infant,
Brittany Gallick, was permanently scarred. Brittany's parents
brought a lawsuit in federal court in Pennsylvania against the
owners of the ferret, Shawnee Miller and Todd Long, as well as the
Miller and Long's landlords, Bruce and Betty Barto. The Bartos
filed what is known as a counterclaim against the parents of
Brittany, alleging that Brittany's parents were contributorily
negligent in leaving her alone, on the floor, in a room with a
ferret.
Early in August, various ferret organizations in Pennsylvania
asked the court if they could file informational briefs with the
court on the issue of whether a ferret should be considered a "wild
animal" under Pennsylvania law. The classification of ferrets as
wild animals is significant in several reasons. First, in many
states the keeper of a wild animal is "strictly liable" for
injuries caused to people by that animal. Strict liability means
that the person injured does not have to prove that the owner of
the animal acted negligently or knew of the animal's dangerous
propensity. Both would ordinarily have to be proven in a case
where a person was injured by a domestic animal, such as a dog or
cat. This was likely the central issue in the Gallick case, and
the judge's ruling probably led to the settlement. Second, in many
states, the keeper of a wild animal may need to obtain special
licenses or permits.
The judge in the Gallick case ruled on July 26, 1993 that
ferrets were wild animals. By August 5, the parties had settled
out of court. Consequently, on August 6, the court denied the
ferret organization's attempts to get involved in the case. That
order is included in this file as Exhibit A. The ferret
organizations were interested in getting involved and trying to
convince the judge that ferrets were domestic animals because of
the potential effects on other ferret owners. Judges, however,
must have a "live" case or controversy before them before they can
decide issues. Because the Gallicks had settled with the Bartos,
Miller, and Long, the judge was unable to allow the ferret
organizations to join the case.
More importantly, even if the case had not settled, the ferret
organizations would have been unlikely to change the judge's ruling
on the issue of whether ferrets were domestic or wild animals under
Pennsylvania law. Under the Pennsylvania Game Law, "Wild Animals"
are defined as: "All mammals other than domestic animals as
defined in 1 Pa.C.S. S 1991 (relating to definitions)." Section
1991 of Title 1, Pennsylvania Code, states as follows: "'Domestic
Animal.' Any equine animal, bovine animal, sheep, goat and pig."
Therefore, under the Pennsylvania statute, if you're a mammal and
not a horse, cow, sheep, goat, or pig, you're wild. Note that this
would technically include humans.
Judges in the United States are charged with the duty to
enforce and apply the laws as they are written. Judges do not have
the power to change the law. On occasion, a statute may be subject
to differing interpretations, and in these cases the judge must
decide which interpretation the legislature intended, or the
interpretation that will lead to the most equitable resolution of
the matter.
In the Gallick case, the judge was faced with a pretty clear
statute. Whether ferrets are _really_ domestic or wild is in a
sense irrelevant. The judge is stuck with the law as it is
written. The judge here was required to find that ferrets were
wild animals under Pennsylvania law.
The Pennsylvania law, however, did not seem to be geared
toward animals kept as pets, such as ferrets. Rather, it seemed to
be directed at farm animals. Therefore, in late June, the
Pennsylvania legislature changed the law to provide for a new
definition for domestic animal. Because the events involved in the
Gallick case took place prior to the date the law was passed, the
old law applied to that case.
The new law, known as "state act 66," now provides that "any
wild or semiwild animal held in captivity" is to be considered a
domestic animal. (State Act 66 is included in this file as
appendix B). Therefore, the ruckus about the Gallick case is moot.
If Brittany Gallick were injured by a ferret today, the judge would
be forced to rule that the ferret was a domestic animal.
Note, however, this does not mean that the Bartos, Miller, and
Long would not have been liable. It just means that the Gallicks
would have been held to a more difficult standard of proof. Ferret
owners would be well advised to keep their pets in secure cages
when strange children are coming to visit. Any interaction between
the children and the ferrets should be closely supervised. If the
ferret does bite someone, get medical care immediately, but say as
little as possible. Do not "discuss" the attack to the extent that
is possible. If you have a regular lawyer, it would be a wise
precaution to call him or her just to let him or her know that the
ferret bit someone. If you are sued, contact your lawyer
immediately. You should also contact one of the ferret
organizations, either at the national or local level. Their
involvement in your case could be of tremendous significance.
------------------------------------------
Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LEONARD GALLICK and SONINA GALLICK,
his wife, Individually and as
Parents and Natural Guardians of
BRITTANY GALLICK, a Minor,
Plaintiffs,
v.
BRUCE BARTO and BETTY BARTO,
his wife,
Defendants and Third-
Party Plaintiffs,
v.
LEONARD GALLICK and SONINA GALLICK,
his wife, Individually and as
Parents and Natural Guardians of
BRITTANY GALLICK, a Minor,
Third-Party Defendants,
and
SHAWNEE MILLER and TODD LONG,
Third-Party Defendants.
Order #1
August 6, 1993
BACKGROUND:
On March 8, 1991, plaintiff Brittany Gallick, an infant then
aged seven months, was bitten on and about the face by a ferret
owned by Shawnee Miller and Todd Long. The bites left open wounds
which have left scars on the face of Brittany. Her parents,
Leonard and Sonina Gallick, initiated this action to recover for
Brittany's injuries. Originally, the defendants were Bruce and
Betty Barto, the landlords of Miller and Long. They raised
affirmative defenses against the Gallicks, and eventually Miller
and Long were joined as third-party defendants. The Gallicks have
been named as third-party defendants.
Before the court is a motion to intervene filed by: Ferret
United and Registration Organization of Elon College, North
Carolina; Lehigh Valley Ferret Association of Harrisburg,
Pennsylvania; American Ferret Association of Frederick, Maryland;
Path Valley Farms of Willow Hill, Pennsylvania; and League of
Independent Ferret Enthusiasts of Burke, Virginia. The motion is
filed pursuant to Fed. R. Civ. P. 24(a), (b). Included in the
motion to intervene is a motion for a stay of these proceedings.
The ground raised for this motion is that the court did not
have before it expert testimony concerning the nature of ferrets,
to be used in the court's determination of whether or not a ferret
is a wild animal. Movants claim that they will be adversely
affected by the court's determination that, under Pennsylvania law,
ferrets are wild animals for purposes of personal injury actions.
DISCUSSION:
In pertinent part, Fed. R. Civ. P. 24 reads as follows:
Rule 24. Intervention.
>> (a) Intervention as of right. Upon timely application anyone
shall be permitted to intervene in an action: . . . (2) when the
applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is
so situated that the disposition of the action may as a practical
matter impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately represented
by existing parties.
(b) Permissive intervention. Upon timely application anyone
may be permitted to intervene in an action: . . . (2) when an
applicant's claim or defense and the main action have a question of
law or fact in common. . . . In exercising its discretion the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.<<
The motion to intervene will be denied for four reasons.
First, it is not timely. Second, the interest which movants assert
is not an interest relating to the property or transaction which is
the subject of this litigation. Third, the facts and procedural
posture of this case weigh against permissive intervention. And
fourth, the proferred scientific evidence is not relevant to our
determination that ferrets are wild animals under Pennsylvania law,
which was an interpretation of clear statutory language and case
law.
A. Timeliness
This motion to intervene was filed on August 5, 1993. On the
same date, the court was notified by the parties to this action
that a settlement agreement had been reached. For that reason
alone, there is no longer a case in which to intervene.
Had the case not been settled, the motion would, nevertheless,
have been untimely. The jury was selected August 2, 1993, and the
case was then scheduled to be presented to the jury August 9, 1993
or, at the latest, August 10, 1993. When selected, the jurors were
expressly cleared for availability the week of August 9, and no
other, and the parties are prepared for trial. To allow
intervention at this critical time would emasculate any sense of
proper ordering of this court's business and the timely
adjudication of the dispute of these litigants.
B. Intervention as of right
As set forth above, Rule 24(a) states that the court must
permit a party to intervene if the party "claims an interest
relating to the property or transaction which is the subject of the
action. . ." "[A] person may intervene as of right if (1) the
motion for intervention is timely; (2) the applicant has a
sufficent interest in the litigation; (3) the interest may be
affected or impaired, as a practical matter by the disposition of
the action; and (4) the interest is not adequately represented by
an existing party in litigation. _Harris v. Reeves_, 946 F.2d 214,
219 (3d Cir. 1991) (citing _Harris v. Pernsley_. 820 F.2d 592, 596
(3d Cir.), _cert. denied_, 484 U.S. 947 (1987)), _cert. denied sub
nom._ _Abraham v. Harris_, 112 S. Ct. 1516 (1992). As noted above,
this action is not timely.
Moreover, the applicants do not have a sufficient interest in
the outcome. While not specifically defined, a "sufficient
interest" is one which is "significantly protectable," "legally
protectable," and "direct." _Id._ (citing _Harris v. Pernsley_,
820 F.2d at 596-597).
The present action is wholly between the parties named in the
caption. It was the ferret belonging to Shawnee Miller and Todd
Long which allegedly injured Brittany Gallick. She alleges claims
based upon physical injuries, medical expenses, and pain and
suffering. The premises on which the incident occurred belong to
Bruce and Betty Barto. Brittany's parents, Leonard and Sonina
Gallick, are alleged to have been negligent as well. None of the
movants can claim an interest relating to the property at issue, or
the transaction, which is the alleged attack upon Brittany.
Any interest of the movants is contingent upon their members
being sued in the future for injuries caused by ferrets owned by
the members. The movants themselves would not even be liable,
unless the organizations own the ferrets themselves. And the
potential litigation may never come to pass. Every potential
tortfeasor does not have the right to intervene in any case which
may have an impact on an uncommitted tort.
In short, the movants do not have a direct interest in the
outcome of this litigation, and have claimed an interest only in
one particular ruling. That ruling does not affect them directly,
and may never affect them at all. Movants may not intervene as of
right under Rule 24(a).
C. Permissive intervention
As the language of Rule 24(b) suggests, a district court has
discretion when considering a motion for permissive intervention.
_See also_ _Harris v. Pernsley_. _supra_, 820 F.2d at 597; _Brody
v. Spang_, 957 F.2d 1108, 1124 (3d Cir. 1992). The applicants here
have no claim or defense, since they are not involved in any suit.
Moreover, there has already been a settlement reached between the
parties, and the motion is otherwise most untimely, coming after
jury selection and only four or five days prior to scheduled
presentation of the case to the jury. Finally, as set forth below,
the proferred evidence which movants seek to present is not
relevant to the determination they seek to challenge.
We therefore exercise our discretion and deny permissive
intervention, since intervention by these parties can only detract
from these proceedings. It is crystal clear that to allow
intervention at this stage of the proceedings would unduly delay
_and_ prejudice the adjudication of the rights of the original
parties.
D. Scientific Evidence
Finally, movants relate in their motion that the court's
finding that ferrets are wild animals is unsubstantiated by
scientific evidence of record. They therefore offer to provide the
testimony of experts in the ferret field to guide the court.
This testimony is irrelevant to the determination made by the
court, however, as a more careful reading of our memorandum and
order of July 26, 1993, would reveal. The central part of our
reasoning is set forth at pages seven through nine of that
memorandum, under the heading, "B. PENNSYLVANIA LAW ON WILD
ANIMALS." It is clear from that section that Pennsylvania law
controls the question presented. While apparently no Pennsylvania
court has considered the question of whether ferrets are wild
animals, courts of the Commonwealth have considered, generally, how
to determine whether an animal is wild.
In _Deluca v. Whitemarsh Twp._, 526 A.2d 456 (Pa. Cmwlth.
1987), the Commonwealth Court looked to the Game Law, 34 Pa. Stat.
Ann. SS 1311.1 et seq. (Purdon 1967), since repealed. In _Holmes
v. Borough of Lansdowne_, 9 D. & C. 4th 244 (1991), the Court of
Common Pleas, based upon _Deluca_, looked to the statute which
replaced the Game Law, the Game and Wildlife Code, enacted as Title
34 of the Pennsylvania Statutes Annotated. That Act defines wild
animals as any animal which is not domestic under 1 Pa. Cons. Stat.
Ann. S 1991. Ferrets are not included in the section defining
domestic animals, and so must be considered wild animals under
Pennsylvania law.
We recognize that the courts of the Commonwealth of
Pennsylvania may not agree with our opinion, since we are deciding
the issue before they have considered it. However, we must, in
essence, predict the way in which the state courts will reach their
conclusions, and we must base that prediction upon the manner in
which Pennsylvania courts have ruled in the past. The proffered
expert testimony would not change our reading of the law of
Pennsylvania, since the courts look to statutory language, and only
the Pennsylvania legislature can change that language. The
proffered testimony, therefore, would have been immaterial to our
determination that ferrets are wild animals for purposes of
personal injury actions in Pennsylvania. It follows, then, that
intervention by these parties would serve no legitimate purpose.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The motion (record document no. 84) to intervene as
defendants filed by the above-named movants is denied.
2. The motion (record document no. 84) for a stay of
proceedings is denied as moot.
James F. McClure, Jr.
United States District Judge
------------------------------------------
Exhibit B
The General Assembly of Pennsylvania
SENATE BILL
No. 1047
Session of 1993
Introduced By Stapleton, Madigan, O'Pake, Stewart, Stout,
Porterfield and Musto, April 28, 1993.
Senator Stapleton, Agriculture and Rural Affairs, As Amended, June
8, 1993.
AN ACT
Amending the act of July 22, 1913 (P.L. 928, No.441), entitled "An
act relating to domestic animals; defining domestic animals so as
to include poultry; providing methods of improving the quality
thereof, and of preventing, controlling, and eradicating diseases
thereof; imposing certain duties upon practitioners of veterinary
medicine in Pennsylvania; regulating the manufacture, use and sale
of tuberculin, mallein and other biological products for use with
domestic animals; defining the powers and duties of the State
Livestock Sanitary Board, and the officers and employees thereof;
fixing the compensation of the Deputy State Veterinarian; and
providing penalties for the violation of this act," further
defining "domestic animal."
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1 of the act of July 22, 1913 (P.L.928,
No.441), referred to as the Domestic Animal Disease Suppression
Law, is amended to read:
Section 1. Be it enacted, &c., That the words "domestic
animal," as used in this act, shall mean any equine animal or
bovine animal, sheep, goat, pig, dog, cat, [or] poultry_, BIRD,
FOWL, or any wild or semiwild animal held in captivity_; and shall
be taken to include the singular or plural as may be necessary in
any given case.
_THE PHRASE "WILD OR SEMIWILD ANIMAL," AS USED IN THIS ACT,
SHALL MEAN A DOMESTIC ANIMAL WHICH IS NOW OR HISTORICALLY HAS BEEN
FOUND IN THE WILD, INCLUDING, BUT NOT LIMITED TO, BISON, DEER, ELK,
LLAMAS, OR ANY SPECIES OF FOREIGN OR DOMESTIC CATTLE, SUCH AS
ANKOLE, GAYAL AND YAK._
Section 2. This act shall take effect in 60 days.
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End Forwarded Message
[Posted in FML issue 0579]
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