D.C. v Petco Animal Supplies Stores, Inc.

[*1] D.C. v Petco Animal Supplies Stores, Inc. 2007 NY Slip Op 51413(U) [16 Misc 3d 1114(A)] Decided on July 16, 2007 Supreme Court, Nassau County Galasso, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2007
Supreme Court, Nassau County

D.C., an infant under the age of 14 years, by her mother and natural guardian Dianne Christian, by her father and natural guardian, David Christian, and Diane Christian, and David Christian, Individually, Plaintiffs,

against

Petco Animal Supplies Stores, Inc., Petco Animal Supplies, Inc., and Kenneth Coughlin, Defendants.



1670/06



ANTHONY J. LoPRESTI, ESQ.

Attorney for Plaintiff

310 Old Country Road

Suite 103

Garden City NY 11530

(516) 739-2020

BIRZON, STRANG & BAZARSKY, ESQS.

Attorneys for Defendant

PETCO

222 East Main Street

Suite 212

Smithtown NY 11787

631-265-6300

631- 360-2600

KELLY RODE & KELLY LLP

Attorneys for Defendant

COUGHLIN

330 Old Country Road

Mineola NY 11501

516-739-0400

John M. Galasso, J.

Upon the foregoing papers, defendant Kenneth Coughlin's motion pursuant to CPLR §3212 for summary judgment is granted (Seq.#003). Defendant Petco Animal Supplies Stores, Inc. and Petco Animal Supplies, Inc., (Petco's) motion for similar relief is, likewise, granted (Seq. #004).

Plaintiff's motion to compel the production of certain records (Seq.#005) is denied as moot.

This personal injury action is against a dog owner/customer and a retail pet supply chain store for the injuries sustained by the 5-year-old infant plaintiff on January 23, 2006 when she was bitten while shopping in Petco with her mother.

The dog in question, an approximately 8 to 9 month old Rottweiler named Lucy, was rescued from an animal center 10 days before the incident. Defendant Coughlin had previously owned a rescued Rottweiler for 13 years without incident. He was told Lucy was a puppy with a great disposition. Defendant received a couple of hours of training with Lucy at the animal shelter before she came home.

During that 10-day period Lucy had contact with children, including two near to plaintiff's age. She had visited Petco where she was approached and petted by several strangers. At no time did Lucy exhibit vicious propensities, including aggressiveness or territorial barking.

At home Lucy had the full run the house. Defendant who was retired and spent a great deal of [*2]time with Lucy, continued with her training. She was not being trained as a guard dog.

On the day in question, the infant-plaintiff was in the store along with another child and plaintiff's mother. According to Mrs. Christian, she asked defendant Coughlin if her daughter could pet Lucy, who was under control on a lease. He agreed. While the adults chatted for a few minutes, both children petted the dog. Then, Mrs. Christian saw the dog suddenly lunge and bite her daughter on the mouth.

In order to find liability against a dog owner for his pet biting an individual it must be shown that the animal had vicious propensities and that the owner knew or should have known about those vicious propensities. Negligence of the owner is irrelevant because once those two factors are established, the owner is strictly liable (PJI 2:220).

In the case at bar, plaintiffs chose to sue defendant Coughlin under the theory of common law negligence, which cannot be maintained in the State of New York (Bard v. Jahnke, 6 NY3d 592; Claps v. Animal Haven, Inc., 34 AD3d 715).

Even if plaintiff had argued under the appropriate theory, plaintiff's evidence fails to raise a material issue of fact.

Under the circumstances there is no evidence whatsoever that defendant Coughlin knew or should have known Lucy had vicious propensities (Collier v. Zambuto, 1 NY3d 444; Galgano v. Town of North Hempstead, ___AD3d___, 2007 WL 1704612). Although whether or not an animal actually has vicious propensities may be demonstrated by the nature and result of the attack on a plaintiff (Lynch v. Nacewicz, 126 AD2d 708; Carlisle v. Cassasa,234 AD 112), plaintiffs' expert limits himself to his conclusion that defendant Coughlin was negligent in handling and managing his dog.

Furthermore, the expert reached certain other conclusions based on Lucy's breed and the fact that she was a rescue dog. The Court of Appeals has eschewed such generalizations (Bard v. Jahnke, supra; see also Sorel v. Iacobucci, 221 AD2d 852; Bohm v. Nystrum Construction, 208 AD2d 668).

Accordingly, defendant Coughlin's motion is granted and the complaint against him as well as any cross-claim is dismissed.

Turning to the cause of action against Petco sounding in negligence for its policy allowing customers to bring their pets into the store, Petco clearly has an implied duty to its customers to afford them protection from exposure to harm by third parties (see Pulka v. Edelman, 40 NY2d 781). Petco is in control of the premises in general and specifically in control of the third-party customer specifically by virtue of its animal-friendly policy.

Nevertheless, foreseeability determines the scope of defendant's duty (Palsgraf v. Long Island R. Co., 248 NY 339). It is a matter of logic, science and policy and is a legal question for the [*3]Court to determine (Sachez v. State, 99 NY2d 247; DeAngelis v. Luthern Medical Center, 84 AD2d 17, aff'd 58 NY2d 1053; PJI 2:12).

For instance, in Struck v. Zoltandki, 62 NY2d 572, the Court of Appeals had to determine a landlord's liability when leasing a property to a tenant knowing the tenant to possess a dog with vicious propensities. Strict liability, as would be applicable to the tenant, was not imposed on the landlord; rather the duty was defined as one to use reasonable care not to expose third persons to an unreasonable risk of harm.

In Claps v. Animal Haven, Inc., 34 AD3d 715, the Second Department resolved the scope of duty question to be one of strict liability when Petco was sued by an individual who suffered a dog bite at an animal adoption fair held by the defendant rescue organization on the public sidewalk in front of Petco's store. The organizations' lack of knowledge of the dog's alleged vicious

propensity was imputed to the Petco store.

Consquently, under the strict liability standard, there can be no liability as a matter of law as the Court has already found for the pet's owner on these issues.

In any event, in applying the Struck standard of reasonable care balanced by an unreasonable risk of harm, Petco's motion for summary judgment must likewise be granted.

According to the uncontroverted evidence submitted by Petco, its policy to allow customers to bring their pets into its retail establishments is an industry-wide standard designed for the benefit of their patrons. The standard is also designed to facilitate other aspects of the pet supplies and care industry, such as grooming, photography, training and inoculations.

In order to protect customers, the standard mandates that all animals be leashed or contained in pet carriers.

Statistically, in over 800 Petco stores nationwide and over 80 million customer transactions in 2005, only five incidents involving a dog bite were reported to management.

That year, according to the Center for Disease Control and Prevention and the American Veterinary Medical Association, there were between 4.6 and 4.7 million dog bites to the public at large.

Petco has established its entitlement to judgment as a matter of law that its animal friendly policy was not inherently dangerous by its undisputed statistical analysis and the fact that it is an industry-wide practice(PJI 2:16; cf. Capotosto v. Diocese of Rockville Centre, 2 AD 384).

Moreover, plaintiff's expert, who ignores defendant's evidence, fails to raise an issue of fact by his conclusions that are based on the generalities that in unfamiliar environments dogs tend to act more defensively and that loosened standards of dog breeding lead to overly aggressive dogs.

The former opinion does not require an expert's clarification since it is within the knowledge of a typical person (DeLong v. Erie, 60 NY2d 296; e.g., Rojas v. Supermarkets General Corp., 238 AD2d 393; The latter, of dubious relevance, is too speculative and tends to mislead by its oblique reference to Lucy's breed (see generally Aetna Casualty & Surety Co. v. Barile, 86 AD2d 363; Cooke v. Bernstein, 45 AD2d 497; McGee v Adams Paper & Twine, Co., 26 AD2d 186).

As to those suggestions that Petco had a duty to warn its customers in some manner by placing signs near the entrance, even were the Court to find such signs would be a reasonable precaution for Petco to take, there is no evidence in the case at bar that the lack of such a warning sign was a substantial factor in causing the occurrence, nor can the Court infer such a casual connection without the resort to speculation (see generally Galye v. New York, 92 NY2d 936; Burgess v. Acqueduct Realty Corp., 92 NY2d 544; Ohdam v. New York, 268 AD2d 86; PJI 2:70). Plaintiffs owned several pets, frequented their local Petco in the past and should have been aware of its pet-friendly policy.

As to plaintiffs' argument that Petco had duty to "vet" each customer and their pet as they entered the store to determine if the animal demonstrated vicious propensities, such a precaution would be unreasonable as a matter of law under the circumstances when balanced with the duty owed by a reasonably prudent business owner (PJI 2:90).

Cognizant of the lesser standard plaintiffs must realize on a motion for summary judgment and with efforts to discern a valid line of reasoning that might not automatically foreclose plaintiff from all recovery, (see generally Burgos v. Aqueduct Realty Corp., supra), the Court nevertheless concludes that the lack of evidence refuting Petco's analysis is fatal to plaintiff's case under a common law negligence theory as well as the appropriate strict liability theory.

The complaint is dismissed.

Dated:July 16, 2007Signed John M. Galasso.