Sunday, July 22, 2012

Can I Break a Car Window to Save a Dog in a Hot Car?

The question of the week comes from another attorney (we’ll call her “Robin”) who sent me a message on Facebook.  Let me set the stage for the question:

It was an ordinary Sunday afternoon in Louisville, Kentucky, much like any other Sunday afternoon in July.  The white Kentucky sun beat down with a relentless 106 degree cruelty that only Mother Nature can provide.  A wavy haze rose from the asphalt, rubber, metal and glass of the Kroger parking lot.  It was staggering, this heat. 

Robin stepped out from the cool confines of her Ford Fusion, and onto the asphalt.  Instantly, she felt the sticky discomfort and forced herself to think optimistically.  It will be a short walk across this parking lot to the Kroger.  They’ll have the air conditioning blasting inside.

Robin isn’t one to snoop.  Honestly, your business is your business and she has enough business of her own.  But on this particular Sunday, as she made the brief but taxing journey across the Kroger parking lot, something caught her eye.  There, in the backseat of an old, beat up Toyota Camry, was the most adorable of adorable dogs. 

It was a small dog, about 15 lbs or so.  short nose.  medium length hair.  But the most commanding feature of this particular animal was the look of fear and hopelessness in its eyes.  The dog was trapped in the old Camry – its owner having abandoned it for the tenure of the owner’s trip to Kroger.  The windows were up.  The doors were locked.  Robin’s heart sank.

This dog was dying.

The question posed by Robin is this:  Am I legally allowed to break the window? 

Back in that Kroger parking lot, Robin doesn’t have time to think things out.  She has read the National Weather Service’s warnings on this subject, and knows that every minute is crucial.*  Robin goes back to her Fusion, pops the trunk, grabs a tire iron, and liberates the animal.

Let’s find out if Robin is going to do hard time, shall we?

We’ll start with the proposition that, if Robin breaks the window of the Camry (damage which would total $273.50 for the replacement window, not including labor), she would be committing a criminal offense.  Specifically, Criminal Mischief.  If Robin damages someone else’s property, and causes less than $500 in damage, she is committing Criminal Mischief in the Third Degree, which is a Class B misdemeanor.  Since this crime carries up to 90 days in the County Jail, Robin is seriously concerned about the ramifications of her Kroger Parking Lot choices.  So, assuming Robin’s conduct would be criminal in nature, we need to find a good defense.

The Kentucky Revised Statutes provide “principles of justification” in KRS 503.  Among the justifications for committing a crime are “Choice of Evils,” which is found in KRS 503.030.  The statute states in pertinent part:

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged[.]

Basically, the “choice of evils” defense allows a person to commit what would otherwise be a crime, if that person genuinely believes it is necessary to prevent a greater evil (injury).  The question then becomes: What is/are the injury or injuries inflicted, and what injuries would be prevented.

From a purely financial perspective, things don’t look good for Robin.  The window is worth $273.50, based on a blind guess conjured in my head as I write this blog.  The dog, however, is considered only personal property, or “chattel” in Kentucky.  The law recognizes no sentimental value in the animal.  At best, the dog is probably worth $50.  Thus, considering only the financial aspect of the “damage,” one should let the dog die.  $273.50 is greater than $50. 

However, Robin makes a little scratch, and so she hires a good lawyer.  Some young, handsome hotshot named Greg Simms.  Simms informs her that this “Choice of Evils” justification may work out for us after all.  The law is slightly ambiguous, and speaks of “greater injury.”  Although the injury caused in Criminal Mischief is purely monetary in nature, the Choice of Evils justification does not speak in such constricting terms.  If we get creative with the defense, it can still work for us.

Simms explains that the owner of the dog was most likely committing the crime of Cruelty to Animals in the Second Degree, a Class A misdemeanor, by keeping the dog in a car with the doors locked and windows up in the 106 degree heat.  By arguing that Robin made the choice to commit a Class B misdemeanor in order to prevent a Class A misdemeanor (a greater crime), we can justify Robin’s actions.

What may be even more important is the fact that the Choice of Evil “necessity” is determined by what the defendant subjectively “believes” to be necessary.  So long as Robin genuinely believed that she needed to break the window to prevent a greater injury, it doesn’t matter if Robin was correct in her belief.  Thus, if the owner of the dog only ran in for a very brief time, and came out just as Robin broke the window (so we can assume the dog was NOT going to die), Robin still has a valid defense, based on her belief that the actions were necessary.

In short, the answer is “Yes.  Robin can break the window because the ‘injury’ of property damage would be outweighed by the ‘injury’ she would be preventing.”

Robin will rest easy knowing that she is not going to spend 90 days in the clink, eating nearly edible bologna sandwiches and awkwardly taking showers with some of her own clients.

If you have any other questions or concerns on this issue, please feel free to call me, attorney Greg Simms, at 502.473.6464.  Visit


  1. I found this information very helpful as I was in a situation similar, sitting on a hot day in Kroger parking lot and seeing a dog panting and sweating in the vehicle next door with all the windows up and in the sun. Since animal control can be slow I wondered what I should do as every minute counts on a hot day. Especially when you see needless suffering because someone had to run an errand for 10-15 minutes inside a nice, cool store. Actually could not even talk to a human at animal control when I called! Did my best effort to inform the store and hopefully that helps but I wanted to know what is within scope of further help had that not worked.

  2. Did Robin have to pay for the replacement of the window?
    What were the lawyer fees?

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