Companion Animals: Adoption & Custody
Bennett v. Bennett
655 So.2d 109
District Court of Appeal of Florida, First District, 1995
FACTS: Ronald and Kathryn Bennett divorced and fought for custody of their dog, Roddy. In the dissolution proceedings, the trial court awarded custody to Ronald Bennett with visitation privileges for Kathryn Bennett. Ronald Bennett appealed the lower court decision.
ISSUES: Did the trial court err in granting visitation rights to Kathryn Bennett?
HOLDING: Yes, the trial court erred in granting visitation rights to Kathryn Bennett. Under Florida law, animals are considered to be personal property. The Court of Appeal found that the trial court lacked authority to order visitation with personal property. The case was remanded to the trial court to award Roddy pursuant to equitable distribution.
Georgia
Coogle v. Jahangard
271 Ga.App. 235
Court of Appeals of Georgia, 2005
FACTS: Eleven year old Kunisch was bitten by a dog owned by Green. Kunisch’s mother, Coogle, filed action not against Green, but against the dog’s previous owners, Hamid and Jahangard, claiming that they were liable because they gave the dog to Green knowing the dog had bitten someone before, but failed to inform Green of the dog’s dangerous propensity. Coogle’s theory was that a party placing a dog in the “stream of commerce” has a duty to warn of the dangers associated with the dog, and is liable to third parties harmed by the dog.
ISSUES: Whether Jahangard should be held liable for placing the dog into the stream of commerce without disclosing the alleged dangerous nature of the animal based on its history.
HOLDINGS:
1) The trial court did not err in granting summary judgment to the Jahangards.
2) There was no contract between any of the parties and Coogle has pointed to no law placing a duty upon a dog owner to warn a person to whom he is giving a dog of a prior biting incident.
3) The court is not persuaded by Coogle’s attempts to analogize this case involving the transfer of dog ownership to cases involving product liability and the placement of defective products into the stream of commerce.
4) Georgia law imposes upon a manufacturer of personal property certain duties, including a duty to warn users of its product of dangers arising from the use of the product, regardless of privity. There is no such statutory duty imposed upon a person transferring the ownership of a dog.
5) The cases cited are simply not on point and do not support Coogle’s position regarding liability of a dog owner to third parties after the owner has given the dog away. Where there is no legal duty owed to a plaintiff, there is no cause of action in negligence.
Iowa
In re Marriage of Stewart
Court of Appeals of Iowa, 1984
FACTS: Jay Stewart and Joan Wilson were married in 1977. During their marriage, Jay gave Joan a dog as a Christmas present. When they divorced, the trial court found that custody of the dog should be with Jay. Joan appealed arguing that granting her custody was in the best interest of the dog.
ISSUES: Did the trial court err in granting custody of the dog to Jay?
HOLDING: No, the trial court did not err in granting custody of the dog to Jay. The Court of Appeals found that a dog is personal property and while courts should not put a family pet in a position of being abused or uncared for, they do not have to determine the best interests of a pet. After considering the property distribution as a whole, the court found no reason to overrule the lower court’s decision.
Missouri
Bussell v. Tri-County Humane Society
50 S.W.3d 303
Missouri Court of Appeals, 2001
FACTS: Scott’s Dalmatian, Samson, bit a child. After being released from quarantine, Scott moved Samson to live on a farm while trying to find another owner. Tinsley contacted the Tri County Humane Society regarding its procedures for accepting an animal, and Scott placed an advertisement in a newspaper attempting to give Samson away. Humane Society accepted Samson and placed him with another owner. Subsequently, Samson bit Bussell, the neighbor-child of Samson’s new owner. Bussell brought this action against Scott, Tinsley, and Humane Society, alleging that as the prior custodians of Samson, each failed to give adequate warning of Samson’s history and vicious propensities to the successor owner. The trial court granted summary judgment in favor of Scott and Tinsley. Bussell appealed.
ISSUES: Whether the trial court erred in granting summary judgment in favor of Scott because Scott owed a duty to the public to protect it from Samson and because there were genuine issues of material fact regarding the transfer of Samson’s ownership; whether the trial court erred in granting summary judgment in favor of Tinsley because there were genuine issues of material fact regarding whether she acted as an agent of Scott and whether she made misrepresentations of fact as to Samson’s nature.
HOLDINGS:
1) Under Missouri law, a dog owner is liable for injuries the dog inflicts only if the owner harbors the dog with actual or constructive knowledge that the dog has vicious or dangerous propensities.
2) A single prior bite does not confirm that a dog has vicious propensities without an examination of the surrounding circumstances.
3) Absent any surrounding circumstances regarding Samson, it is not possible to determine whether Samson demonstrated vicious propensities which would trigger Scott’s duty to protect the public.
4) Since there is no indication on the record that Samson’s bite was one which would trigger Scott’s liability for subsequent bites, Scott owed no duty to the public regarding Samson’s future actions.
5) Tinsley neither owned not harbored Samson at any time. She had no knowledge of their propensities. Hence, Tinsley cannot be held strictly liable for Samson’s actions.
New York
Feger v. Warwick Animal Shelter
814 N.Y.S.2d 700
Supreme Court of New York, 2006
FACTS: Feger alleged that a white Persian cat surrendered to the shelter by an unidentified person and adopted by an unidentified family was actually her champion pure-bred Persian cat “Kisses” that was stolen from her home. The Supreme Court granted Warwick Animal Shelter’s summary judgment motion to dismiss the complaint on the ground that they were entitled to statutory immunity. Feger appealed.
ISSUES: Whether the lower court erred in granting Warwick’s motion for summary judgment.
HOLDINGS:
1) The Supreme Court erred in granting summary judgment because there are questions of fact as to whether the white Persian cat was “Kisses.”
2) Feger may not recover damages for the emotional harm she allegedly suffered from the loss of her cat.
3) The allegations of Feger’s complaint are insufficient to support a claim for punitive damages.
New York
Marshall v. Darmody-Latham
783 N.Y.S.2d 738
Supreme Court of New York, 2004
FACTS: Damody-Latham adopted her dog, Apollo, after he had been rescued from an abusive environment by the Central New York Society for the Prevention of Cruelty to Animals. Three years after the adoption, Apollo bit Marshall when Marshall was trying to break up a fight between Apollo and another dog, Emma. Marshall subsequently commenced this action seeking damages from Damody-Latham.
ISSUES: Whether Damody-Latham knew or should have known that Apollo had vicious propensities such as would preclude summary judgment, based on evidence that Apollo had been involved in fights before he was rescued, had scars, and had been bitten by another dog at an animal shelter.
HOLDINGS:
1) The owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities.
2) Damody-Latham established that she had no knowledge that the dog had vicious propensities.
3) In the absence of any evidence that Apollo was the aggressor in any previous dog fights, none of which occurred after defendant adopted Apollo 3 years before the incident that gave rise to this action, Marshall has failed to raise an issue of fact whether Damody-Latham knew or should have known that Apollo had vicious propensities.
New York
Raymond v. Lachmann
695 N.Y.S.2d 308
Superior Court, Appellate Division, First Department, New York 1999
FACTS: Raymond and Lachmann moved in together. Plaintiff Raymond brought her cat, Lovey, into the shared housing situation. Raymond left the living situation, leaving the cat behind, and later sought to remove Lovey to a new residence. The trial court used a strict bailment of chattels analysis and awarded custody to Raymond. Defendant Lachmann challenged the trial court’s decision.
ISSUE: Did the trial court err in granting custody to Raymond?
HOLDING: Yes, the trial court erred in granting custody to Raymond. The appellate court reversed the trial court’s decision, instead granting custody to Lachmann. The court cited the “cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of courts to resolve them satisfactorily” and found that it was “best for all concerned” that given his limited life expectancy, Lovey, at almost ten years old, remain where he has “lived, prospered, loved and been loved for the past four years.”
Pennsylvania
Desanctis v. Pritchard
803 A.2d 230
Superior Court of Pennsylvania, 2002
FACTS: Anthony DeSanctis and Lynda Hurley Pritchard divorced in 2000. During their marriage, the couple purchased a dog, Barney. In a property agreement pursuant to their divorce, the couple specified that Barney would be the property of Pritchard and she would retain full custody. The agreement also provided Desanctis the right to visit Barney. This case was brought by Desanctis against his ex-wife, Pritchard, for her failure to allow him visitation rights with Barney. Desanctis argued for the court to grant injunctive relief to mandate “shared custody” of Barney, to declare that Pritchard was in breach of the Agreement, and to reform the Agreement to provide for “shared custody” of Barney. The trial court denied DeSanctis’ petition and granted full custody to Pritchard.
ISSUE: Did the trial court err in granting full custody of Barney to Pritchard?
HOLDING: No. In seeking shared custody of Barney, Desanctis was treating Barney as a child. Pennsylvania law, however, considers a dog to be personal property. Any agreement that attempts to award custodial visitation or shared custody of personal property is void as a matter of law. The Agreement explicitly awarded this property to Pritchard.
South Dakota
Blaha v. Stuard
640 N.W.2d 85
Supreme Court of South Dakota, 2002
FACTS: Chad Blaha bought a dog from Stuard for his dad. Before buying the dog, Blaha and Stuard discussed the dog’s characteristics of the dog and the type of environment the dog would be in under the Blaha’s care. Stuard told Chad that the dog had jumped on a child a long time ago and that the dog was protective of the porch area. Blaha gave the dog to his father as a gift. The dog got along well with the family until he bit Chad’s sister, Jessica. A personal injury lawsuit against the Stuards followed, alleging negligence, breach of warranties, negligent infliction of emotional distress, and strict liability. The trial court granted summary judgment for the Stuards and Blaha appealed.
ISSUES: Whether Blaha has a cause of action for negligence, breach of warranty, negligent infliction of emotional distress or strict liability.
HOLDINGS:
1) Dogs are “goods” and not “products.” We adopt the holding of the courts of Illinois, Colorado and Missouri which have all held that animals cannot be “products” under the Restatement of Torts.
2) Because a dog is not a product, no liability exists under a theory of strict liability.
3) Blaha failed to allege facts sufficient to support the contention that this was an abnormally dangerous animal.
4) Blaha’s action for negligence must fail because the dog was not “possessed” by the Stuards as required by the language in the Restatements. Blaha has cited nothing and the Court has found nothing to support the contention that a possessor’s liability may be super-imposed upon a seller.
5) The Stuards fulfilled their duties as sellers when they relayed to the Blahas their experience with the dogs. Accordingly, there was no breach of duty owed and an action for negligent infliction of emotional distress may not be maintained.
6) There existed no warranty concerning the dog’s disposition around people.
7) The statements complained of only describe the personality of the dog at the time it was sold. There is no warranty by the seller that the dog’s personality will not change in the future.
Texas
Koepke v. Martinez
84 S.W.3d 393
Court of Appeals of Texas, 2002
FACTS: James Koepke sold his Shar-Pei dog, Jackie Chan, to Teresa Canales. Because Canales was out of town, Maria Martinez, who was employed by Canales, traveled to Koepke’s home, exchanged money for Jackie Chan and took the dog to Canales’s home. The next day, while at Canales’ home, Andres Martinez went into the backyard to feed Jackie Chan. He alleges that Jackie Chan knocked him to the ground, bit his hand, left index finger, and chest, and began to bite at his throat. Andres claims he sustained injuries to his finger and chest, suffered a torn rotator cuff in his left shoulder and a herniated disk in his lower back. Andres brought suit claiming negligence, misrepresentation, strict liability, and gross negligence. Maria brought suit for loss of consortium and mental anguish, and their children brought bystander claims. The jury returned a verdict finding Andres 40% negligent and Koepke 60% negligent and awarded zero damages. Andres filed a motion to enter judgment notwithstanding the verdict and Koepke filed a motion for directed verdict. Koepke’s motion was denied and Andres’ motion was granted and damages were awarded. Koepke appeals.
ISSUES: Whether the court erred in granted Andres’ motion for judgment notwithstanding the verdict and denying Koepke’s motion for directed verdict.
HOLDINGS:
1) The trial court erred in denying Koepke’s motion for directed verdict.
2) The gist of an action to recover for injuries caused by a domestic animal, resulting from other than known vicious propensities, is usually negligence of the owner or keeper in the keeping or handling of an animal. Therefore, Andres was required to prove that Koepke was the owner or keeper of Jackie Chan at the time of the incident, and that he negligently handled Jackie Chan.
3) Because Koepke was neither the owner nor the handler of Jackie Chan at the time of the incident, he owed no duty to Andres.
Vermont
LaMare v. North Country Animal Rescue
743 A.2d 598
Supreme Court of Vermont, 1999
FACTS: On June 3, 1997, LaMare and Arnold’s German Shepard, Billy, and Billy’s puppy broke free from their tether and ran away. The puppy returned a few hours later but Billy never did. Later in the day a couple found Billy running down the road and brought him to Lamoille Kennel. Billy was not wearing his tags. The kennel notified Wolcott animal control. As required by ordinance, animal control posted notices describing the dog in the village store, post office, and town clerk’s office. After 9 days Billy was transferred to the North Country Animal League. LaMare and Arnold learned of Billy’s whereabouts, went to the League and identified the dog. A League employee told them that Billy belonged to the League and that the only way to gain possession was to fill out an adoption application. They did. The League denied their application and informed LaMare and Arnold that Billy had been adopted to another family. LaMare and Arnold sued to recover their dog and damages from the League for violation of due process. The trial court ruled against LaMare and Arnold and they appealed.
ISSUES: Whether the rule of Morgan or the lost property statutes should be applied; whether the town had the authority under state law to transfer possession of Billy to the League; whether the ordinance violated due process; whether the trial court erred in failing to apply the notice requirements of the lost property statutes; whether the trial court erred in denying the motion to compel disclosure of the adoptive family’s identity.
HOLDINGS:
1) The trial court’s application of Morgan was inapposite, but reversal of the judgment is not necessary as the Supreme Court reached the same result on different grounds.
2) A town must have the ability to make some humane disposition of an animal after a certain period of impoundment has expired. The provision of the ordinance authorizing the town to sell or otherwise dispose of an animal in a human fashion constitutes a necessary and essential power under the enabling statute and does not exceed the town’s authority.
3) Dogs belong to that class of property the keeping of which may be stringently regulated by the Legislature in the exercise of its police power – even to the extent of providing for their destruction, in given circumstances, without judicial proceedings and in a most summary way.
4) The qualified right to possession of dogs and other animals, and the strong public interest in assuring their permanent placement in a suitable environment, amply supports the town’s decision to provide for the sale or transfer of impounded dogs if unclaimed after 7 days.
5) The town’s posting of descriptive notices in the town clerk’s office, post office, and village store did not deprive plaintiffs of their constitutional right to due process.
6) The trial court did not err in failing to apply the notice requirements of the lost property statutes, under 27 V.S.A. §§ 1101-1110.
7) The trial court did not err in refusing to reveal the identity of the adoptive family, as the plaintiffs made no showing that the identity was relevant and disclosure could lead to harassment and limit or curtail adoption.
Vermont
Morgan v. Kroupa
167 Vt. 99
Supreme Court of Vermont, 1997
FACTS: Defendant Zane Kroupa lost his pet dog. Defendant informed friends and local businesses, and notified the Addison County Humane Society of the dog’s escape. Approximately two weeks later, plaintiff Mary Morgan found the dog and brought it home. She called the Addison County Humane Society with a description of the dog, put up notices in local businesses and State parks, and arranged for a local radio station to broadcast announcements regarding the found dog. Plaintiff took care of the dog, feeding and sheltering it for over a year. Defendant did not locate the dog until informed by a friend that the dog was at plaintiff’s boyfriend’s house. Defendant went to the home to attempt, unsuccessfully, to recover the dog. As he was leaving, the dog jumped in his truck and accompanied the defendant home. Plaintiff then brought an action in replevin to recover the dog. The trial court granted plaintiff Morgan custody of the dog. Defendant appealed that decision arguing that he had a right to possession of the dog under the property law principles of trover and conversion.
ISSUES: Did the trial court err in granting custody of the dog to Morgan?
HOLDING: No, the trial court did not err in granting custody of the dog to Morgan. The trial court analyzed the case as a simple property case, applying the Vermont “lost property” statute. The trail court found that Morgan had “substantially complied” with the mandates of the lost property statute. Though the Supreme Court found that the lost property statute was not designed to govern a case like this regarding a lost pet, they nonetheless held that the trial court was within its discretion in awarding custody of the dog to Morgan. They found that any argument for the defendant’s rights to possession of the dog through trover or conversion is substantially outweighed by the overriding public interest in encouraging finders to care for and shelter lost pets.
West Virginia
Haines v. Hampshire County Commission
607 S.E.2d 828
Supreme Court of Appeals of West Virginia, 2004
FACTS: Haines’ dog was seized by police on August 14, 2002, while running at large. Officer Gee was unable to read the dog’s tags and subsequently impounded the dog. Officer Gee alleges that he posted a public notice for 5 days at the county courthouse, waited an additional 8 days, and then transported the dog to PetSmart where the dog was spayed, treated, for infection, and later adopted. The Haines alleged that they reported that their dog was missing to Officer Gee on August 10, 2002, and that on September 4, 2002, they saw a notice with a picture of their dog in a local newspaper stating that the dog was available for adoption through the Hampshire County Pet Adoption Program. They then filed suit alleging that their substantive and procedural due process rights were violated and arguing that their dog was held in custody without notifying them of its whereabouts and then was unlawfully sold. The circuit court dismissed the Haines’ complaint and they appealed, seeking repossession of their dog, monetary damages, and the removal of the Officer Gee, who impounded their dog.
ISSUES: Whether the circuit court erred in dismissing the Haines’ complaint for failure to state a claim upon which relief could be granted.
HOLDINGS:
1) None of the Haines’ allegations state a legal basis upon which any of their requested relief can be granted.
2) A finding of the Court in favor of the Haines would render the effect of numerous animal control statutes virtually null and void. As such, intervention by the Court would necessarily have a chilling effect on future enforcement efforts.
3) The Haines’ quest for repossession of the dog is misdirected as the county is no longer in possession of the personal property sought.
4) The Haines’ alternative request for monetary compensation is without merit as the Haines’ admit that the dog was not assessed as personal property by their county assessor.
5) In order to recover damages for the loss of a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable.