Bite Worse Than the Bark – Whether Adopter of Dog Reasonably Relied on Representation of Shelter is a Jury Issue (NY)

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Lawrence v. North Country Animal Control Center, Inc. (New York)

Plaintiffs adopted a basset hound named Brutus from the defendant facility, a not-for-profit animal shelter.  Less than a month later, the dog attacked one of plaintiffs’ other dogs.  One of the plaintiffs was able to separate the animals, but Brutus attacked the plaintiff during the altercation, causing severe injuries to both of his arms.  An employee of the defendant facility removed the dog from the plaintiffs’ home on the same day.  The defendant facility thereafter refused to return the dog to the plaintiffs and sent the dog to a rescue organization out of state.  Plaintiffs tracked down Brutus’ prior owner, who claimed that about a month prior to the adoption, Brutus had been turned over to the defendant facility “to be euthanized because he had attacked the owner and her child.”

Plaintiffs filed an action against the defendant facility and its employee, alleging causes of action for, among other things, negligence, fraudulent misrepresentation, products liability, and intentional infliction of emotional distress.  The defendants moved for summary judgment, and plaintiffs cross-moved to amend the complaint and for summary judgment on their claim for intentional spoliation (the defendant facility did not produce Brutus and did not know its current whereabouts).  The trial court granted the cross-motion to amend, denied plaintiffs’ cross motion for summary judgment, and treated the claim for spoliation as a request for sanctions.  However, the trial court ruled (without prejudice to raise the issue again upon completion of discovery) that it was not imposing sanctions in connection with the defendants failure to produce the dog.  The trial court further partially granted the defendants’ motion, dismissing the products liability claim and one other cause of action.  The plaintiffs and defendants both appealed.

On appeal, the Appellate Division of the Supreme Court modified but affirmed the trial courts rulings.  With regard to the negligent and fraudulent misrepresentation claims, the defendants cited evidence that Brutus bit the plaintiffs on three prior occasions without injury such that they could not have relied on any representations by the defendants as to the dogs behavior.  The defendants also argued that the plaintiffs could have learned of the Brutus’ aggressive nature with due diligence.  Plaintiff contended that they would not have adopted Brutus if they had been told the truth regarding the prior owner’s reason for turning him over to the defendant facility.  As to the three prior biting incident, the plaintiff alleged that “they sought the assistance of trainers to deal with what they perceived as a minor issue.”  Plaintiffs further clarified that the three prior incidents “did not break the skin and were far different from the aggressive nature of the later attack.”  The Court held that issues of fact existed in terms of “whether plaintiffs reasonably relied on defendants’ misrepresentation and whether plaintiffs could have discovered Brutus’ dangerous nature with due diligence.”

The Court next addressed the defendants’ argument that the waiver and release language in the adoption agreement signed by the plaintiffs should preclude plaintiffs from recovering under a negligence claim.  The Court disagreed noting that “the clause at issue [did] not preclude plaintiffs’ claims, as it does not “advise the signor that the waiver extends to claims that might arise from the defendant’s own negligence.”  As such, the exculpation from negligence liability was not “expressed clearly and in unequivocal terms.”

As to the intentional infliction of emotional distress claim, the Court noted that it had been properly dismissed by the trial court.  The plaintiffs alleged that the defendants had reported the plaintiffs to the Department of Environmental Conservation for “harboring racoons,” which resulted in an investigation and an eventual dismissal of the report.  Even assuming those facts to be true, the Court stated that such conduct could not satisfy the “rigorous” requirements of a claim for intentional infliction of emotional distress, which requires extreme and outrageous conduct “beyond all possible bounds of decency.”

Finally, the Court found no error in the trial court’s treatment of the spoliation of evidence claim, and it confirmed that the dismissal of the products liability claim was appropriate in that there was no relevant authority supporting such a claim.

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