Lucky the dog was a very, very bad boy – but the shelter from which he was adopted may end up paying the price for his aggressive behavior. The case is Tighe v. North Shore Animal League America (NY Sup. Ct. Nassau Cty. Oct. 10, 2014, Index # 600080/2013).
In sum, plaintiff sued to recover for injuries sustained when Lucky – adopted from the defendant’s facility – “bit her in the face when she leaned toward Lucky and was rubbing his belly.” The court denied defendant’s motion for summary judgment on most of plaintiff’s claims arising from injuries sustained from a dog bite.
Plaintiff argued that defendant did not tell her that Lucky “was adopted twice before and returned”, nor that he “had been returned the first time after three months because the family’s babysitter disliked him and threatened to quit, or that he was returned the second time in less than 30 days of his adoption because he had bit[ten] a child in the face.”
Plaintiff sued on theories of intentional infliction of emotional distress, negligence, and breach of the implied warranty of merchantability.
Defendant sought dismissal on three grounds, namely, that (1) it did not own Lucky at the time of the incident, (2) it did not have sufficient knowledge of Lucky’s vicious propensities, and (3) plaintiff’s claims are barred by the adoption agreement.
As to the first point, the court distinguished cases cited by defendant, as neither involved, as was the case here, “a claim by the party who adopted a dog for failing to disclose the dog’s vicious propensities.”
As to the second point, the court noted that “plaintiff has not sought to impose liability for her injury on [defendant] based solely on Lucky’s vicious propensities”. Rather, plaintiff “relies on a duty to disclose information of this nature to potential adopters and to hold [defendant] responsible based on its failure to do so.”
As to the third point, there was an “issue of fact as to whether [defendant] engaged in concealed fraud in procuring the plaintiff’s release.”
The court also held that the plaintiff’s claim for breach of the implied warranty of merchantability – maintainable under UCC 2-714 – was not barred by the parties’ release. Dogs can be considered “goods”, and the transfer of the dog (despite the lack of a fee) amounted to a “sale”, under the UCC. Furthermore, although waivers of the implied warranty of merchantability are enforceable under UCC 2-316, the waiver here “may also have been the result of [defendant]’s alleged concealed fraud.”
The court, however, dismissed plaintiff’s claim for intentional infliction of emotional distress.