Order for debarking surgery in dog nuisance suit is upheld on appeal
Image from @oregonian.
An Oregon appeals court has upheld a trial judge’s order that a couple’s dogs must get debarking surgery to prevent them from disturbing their neighbors.
The appeals court ruled on Wednesday in a case involving Tibetan Mastiff dogs that were being bred at a Rouge River home, report the Oregonian and the Washington Post.
It was the second time that mastiffs owned by Karen Szewc were the subject of legal action, according to the decision. Szewc received citations in 2004 and 2005 because of frequent and lengthy barking by two of the dogs. In 2006, a hearing officer found the barking violated a county code provision on public nuisance. A fine of $400 was imposed and the dogs were ordered to have the surgery or be moved to another property.
The second time, neighbors Debra and Dale Krein filed a nuisance suit against Szewc and her husband, Jon Updegraff, that claimed the couple had not taken the necessary steps to prevent dogs on their property from “barking incessantly.” Jurors awarded damages of $238,942, and the trial court granted an injunction requiring debarking surgery be performed by a board-certified veterinary surgeon for any mastiffs on the property.
Tapes were admitted in the injunction hearing to show the barking had continued. The trial judge found the injunction was justified because there was no adequate legal remedy to stop continued barking. Citronella and shock collars did not work. Nor did covering portions of the fence in an apparent effort to prevent the dogs from seeing any activity on the neighbor’s property that might provoke barking.
Szewc and Updegraff had claimed the mastiffs were guard dogs for their livestock and it was a “farming practice” protected by statute. The trial judge did not allow Szewc to raise the defense through 2006, because it had been unsuccessfully raised before the county hearing officer, the appeals court said. Szewc and Updegraff did not include the farm-use defense in their answer to the second amended complaint.
Debarking surgery involves cutting a dog’s vocal folds or cords, according to the Washington Post, which cites information from the American Veterinary Medical Foundation. Six states ban the procedure.
The Oregon Humane Society backed a bill to ban the surgery in the state, but it did not win approval. Spokesman David Lytle told the Oregonian “we are just shocked” by the decision.
