Anderson v. Franklin Cnty. Humane Soc'y
| Docket Number | 21-CV-01152 |
| Decision Date | 08 November 2023 |
| Citation | 2023 Vt Super 110802 |
| Parties | Kianna Anderson, et al v. Franklin County Humane Society, Inc. Franklin County Animal Rescue, et al |
| Court | Superior Court of Vermont |
DECISION ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Kianna Anderson, age 9, was visiting the home of Defendant Michael and Nicole Canto when their recently adopted dog Remi, attacked her. She brought this suit against the Cantos as well as the Franklin County Humane Society, Inc. ("FCHS"), from whom the Cantos had adopted Remi. Arguing that it owed Ms. Anderson no actionable duty, FCHS has moved for summary judgment. The court grants the motion in part and denies it in part.
The standards on a motion for summary judgment are familiar, and need not be repeated here. Instead, it suffices to observe that applying those standards and viewing all evidence in the light most favorable to Ms. Anderson, the following narrative emerges. On or about December 1, 2020, the Cantos adopted Remi from FCHS. Remi was a four-year-old mixed breed who had been surrendered to FCHS for re-housing three months earlier. At the time of Remi's surrender, his previous owners informed FCHS that he was aggressive with other dogs. While Remi had never shown aggression towards people, the previous owners were concerned about Remi's being near their young children, and requested that FCHS not place him in a home with children. Notwithstanding this request, FCHS placed Remi with the Cantos, who had at least one child. Three months later, Ms. Anderson, who was a friend of that child, slept over at the Cantos's residence. The next morning, Remi attacked her, causing serious injuries. This lawsuit followed.
Ms Anderson asserts no fewer than ten counts against FCHS. The first seven of these, Counts 2-8, sound in negligence. Thus the threshold question in each of these counts is whether FCHS owed Ms. Anderson any duty of care.
As a matter of first principles, Vermont law rejects strict liability for injuries caused by dogs. See, e.g., Martin v. Christman, 2014 VT 55, ¶¶ 14-16, 196 Vt 536 (). Thus, Count 11, which alleges liability under a theory of strict liability, fails as a matter of law. Instead, Vermont law provides that where a dog's owner "knows that the dog is dangerous, he or she has a duty 'to exercise reasonable control and restraint' of the dog to avoid injury to others." Gross v. Turner, 2018 VT 80, ¶ 22, 208 Vt. 112 (quoting Davis v. Bedell, 123 Vt. 441, 443 (1963)). Similarly, our Supreme Court has recognized that "keepers" of dogs may be held liable for injuries caused by dogs with known dangerous propensities. Id. ¶ 23. The Court has yet to extend liability beyond these two categories.
Here, the undisputed facts make clear that nearly three months before the incident that gave rise to this suit, FCHS ceased to be either an owner or keeper of Remi. The latter conclusion requires no deep analysis. "[B]eing a keeper requires a person to exercise a similar degree of control and care for a dog as its owner." Id. Here, there is no evidence that once it adopted Remi out to the Cantos, FCHS undertook none of the typical responsibilities of dog ownership. Thus, it was not his keeper.
Ms. Anderson does not dispute this conclusion. Instead, she asserts that under the terms of the Adoption Contract signed by FCHS and the Cantos, FCHS retained ownership of Remi. That agreement provides:
I hereby acknowledge receipt and understanding, therefore, agree to the following in regard to the animal I am adopting .... To be the primary caretaker of this animal.... To provide, at my own expense; adequate food, water, shelter, medical care, exercise, licensing and vaccinations in accordance with VT State Laws. ... To care for my new pet in a humane and patient manner and notify [FCHS] immediately for guidance if my pet is showing issues of any kind. To do my due diligence to work through any issues, however, if it becomes necessary I will make an appointment to return him/her exclusively to [FCHS].
The agreement further reads, "I hereby accept possession of the animal at my own risk and hereby release and waive any rights against [FCHS], its staff, Board of directors and volunteers, from any damages to person or property caused by said animal . . . ."
Interpretation of this contract is a question of law. See Cate v. City of Burlington, 2013 VT 64, ¶ 15, 194 Vt. 265. It unambiguously transfers ownership of and responsibility for Remi to the Cantos, subject only to their promise to seek advice from FCHS if he showed "issues" and to return him exclusively to FCHS. By no stretch of the imagination did this agreement confer any degree of control or care upon FCHS. To the contrary, it transferred all care and control to the Cantos. In short, the Cantos became Remi's owner, to the exclusion of all others, including FCHS. This conclusion entitles FCHS to judgment as a matter of law on Count 2.
As noted above, our Court has yet to extend liability for injuries caused by dogs beyond the owner or keeper of the dog. The question nevertheless remains whether under basic negligence principles there is any basis for imposing liability on the facts of this case. FCHS, in its motion papers, identified one provision of the Restatement (Second) of Torts, § 315, that elucidates circumstances in which one can owe an obligation to protect third parties. The court has identified another, § 324A. Only the latter applies to the circumstances of this case.
Here, whether one views Remi or the Cantos as the "third person," this provision does not help Ms. Anderson. Clearly, there was no special relationship between FCHS and either such as would impose a right, much less a duty, of control. Equally, there was no special relationship between FCHS and Ms. Anderson.
Turning next to § 324A, that section provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
See Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178 (1990) (formally adopting § 324A). The first step in § 324A analysis is to determine "whether a plaintiff has made a threshold showing that there existed an undertaking to render services for another for the protection of a third party." Newton v. Preseau, 2020 VT 50, ¶ 7, 212 Vt. 445 (internal quotations omitted). If the plaintiff satisfies this threshold inquiry, she must then establish one of the three alternate scenarios under § 324A(a)-(c). Id. ¶ 9. On the facts of this case, Ms. Anderson can satisfy these inquiries only with respect to her Counts 4-6.
Between the parties, they have found one case that bears remotely on the applicability of § 324A to the context of this case.[1] In Murray v. Mason, as here, a dog bite victim brought a negligence action against the nonprofit animal shelter that released the dog for adoption. 244 A.3d 187 (Del. Super. Ct. 2020) (modified Jan. 5, 2021) ("Murray).[2] The plaintiff, as here, alleged "a litany of failures" by the shelter, including failing to warn the adopters of the dog's dangerous propensities and failing to train or otherwise rehabilitate the dog. Id. at 194. Ultimately, the court concluded that the plaintiffs allegations were "simply too attenuated to constitute a § 324A undertaking and are not viable as a matter of law" because "[t]he Restatement (Second) contemplates a § 324A undertaking as one that is tailored specifically toward, or, at the very least, has a logical connection to, the third party in question." Murray II, at *2 (Del. Super. Ct. June 30, 2021). The court rejected the idea that the animal shelter undertook a duty "on behalf of the public at large for an indefinite period of time" and determined, therefore, that the threshold inquiry failed. Id. The court nonetheless completed the analysis, finding that the plaintiff failed to state a viable claim under any of the three § 324A subsections. See id. at *3.
This court does not find the Murray court's analysis persuasive, at least as applied to the facts of this case. Arguably, FCHS undertook a duty to the Cantos to "make the best possible match" for their household. This would entail ensuring that the pet placed with the Cantos did not present an unreasonable risk to household members and foreseeable guests. In the exercise of due diligence in this regard, FCHS knew or should have known that the Cantos had a child. It was then surely foreseeable that that child might have guests. Thus, while Ms. Anderson was a complete stranger to the adoption, a jury could properly conclude that she was within a relatively discrete group of foreseeable third parties with a logical connection to FCHS's undertaking to make a safe and appropriate placement.
Of course, this does not end the inquiry. Having sufficient evidence to clear the initial threshold under §...
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