Category: Law

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Law

The investigation into Eric Garner’s death passes to Jeff Sessions

The investigation into the death of Eric Garner at the hands of the NYPD will pass to Jeff Sessions, the incoming attorney general who has criticized efforts by the Justice Department to end discriminatory policing and the use of excessive force in poor, mainly black communities.

Attorney General Loretta Lynch, who is overseeing the probe, is expected to step down before prosecutors reach a resolution in the case, The Washington Post reported Friday.

In December, Lynch shifted the investigation to Washington from Brooklyn following a disagreement between prosecutors there and at headquarters, with prosecutors in Brooklyn doubting whether they could prove in court that the use of force by Daniel Pantaleo, the NYPD officer whose chokehold of Garner, a black man, led to the latter’s death on Staten Island almost three years ago, was unreasonable based on the circumstances. Their colleagues in Washington reportedly thought the record contained enough evidence to proceed.

At a hearing of the Senate Judiciary Committee in November 2015, Sessions, a senior member of the panel, called the Black Lives Matter movement, which campaigns to end anti-black racism and police abuses, “really radical” and said that “police officers all over America are concerned” about legal actions by the Justice Department against police departments and officers.

As attorney general, Sessions will inherit DOJ’s oversight of agreements with the cities of Chicago, Cleveland and Baltimore that commit police in each of those cities to refrain from unconstitutional stops, searches and arrests of African-Americans, as well as from using excessive force. In an introduction to a paper published in 2008 by the Alabama Police Institute, Sessions denounced the use of such agreements as “an end run around the democratic process.”

According to Ames Grawert, counsel for the Brennan Center for Justice, Sessions’ comments “call into question” whether he would continue the department’s probes intro police practices.

Sessions also will be charged with implementing the criminal justice agenda of the president-elect, who campaigned on a platform of law and order. Though Sessions pushed for passage of a 2010 law that reduced the disparity in sentences between crimes for crack and powder cocaine, he has opposed reform of federal sentencing laws despite bipartisan support for ending mass incarceration without compromising public safety.

Pantaleo and his partner arrested Garner, a father of six, for allegedly selling untaxed cigarettes. Video from a cellphone camera recorded the encounter, which ended with Garner telling the officers 11 times he could not breathe as they pinned him to the ground.

In a letter last Tuesday to Lynch, Rep. Hakeem Jeffries of Brooklyn and five of his fellow New York-area lawmakers called on the attorney general to prosecute Pantaleo. “In approximately two weeks, there will be a new DOJ less committed to civil rights enforcement,” they wrote. “Consequently, the investigation into Mr. Gamer’s death may itself be suffocated and die.”

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Law

President Obama writes about the president’s role in advancing criminal justice reform and the significance of second chances

In its investigation of the police department in Ferguson, Missouri, the U.S. Department of Justice found that the city relied heavily for revenue from fines for such minor offenses as jaywalking or untended lawns that it enforced most often against members of African-American communities. The city issued arrest warrants not based on public safety needs, but as a routine response to fine payments, investigators found.

We are reminded of that more recently by President Obama, who in an article for the Harvard Law Review discusses the president’s role in advancing criminal justice reform. The 50-page article summarizes many of the statistics that may be all too familiar to people in communities of color.

Roughly 2.2 million U.S. adults were housed in federal, state or local jails at the end of 2015 (the most recent year for such data), down about 2% from a year earlier. While blacks and Hispanics constitute roughly 30% of the population, they comprise half the prison population. As the president notes, though evidence suggests no statistically significant difference in drug use across races and ethnicities, the arrest and conviction rate for African-Americans is much higher.

For similar offenses, the president writes, “members of African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”

The U.S. has 5% of the world’s population but incarcerates nearly 35% of the world’s prisoners. That’s four times the world average and more than the 35 largest European countries combined. About one-third of adults – an estimated 70 million Americans – have a criminal record, which brings with it barriers to voting, employment, housing and the safety net.

“We simply cannot afford to spend $80 billion annually on incarceration, to write off… one in three adults… to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of… men and women currently in U.S. jails and prisons,” Obama writes. “In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.”

The president outlines a series of changes that would make the criminal justice system fairer and more effective. They range from reform of sentencing laws and improvements in the system of public education and juvenile justice, to curtailing use of solitary confinement, reducing gun violence and restoring rights of those who have paid their debts to society.

He also notes his commuting the sentences of more than 1,000 people, the vast majority of whom had already served much more time than the sentence they would receive today and each of whom had obtained a GED, addressed substance abuse that led to their conviction or learned skills for future employment.

“This is an effort that has touched me personally, and not just because I could have been caught up in the system myself had I not gotten some breaks as a kid,” the president writes.

In 1990, Barack Obama, then 28, was elected the first black president in the 104-year history of the Harvard Law Review. The law review’s current president, Michael Zuckerman, along with its articles chair, invited Obama to contribute the article.

As it happens, Zuckerman was arrested and pleaded guilty to criminal trespass 16 years ago, at age 13, for trying to steal alcohol from a family he knew was away. The court assigned him to community service, which included doing art projects with homeless children who lived in motels.

The experience, Zuckerman told The Washington Post, underscored for him his privilege and taught him to redirect his energy into more productive things than stealing liquor. “So being able to publish a piece in which the president of the United States talks about the importance of second chances is very meaningful to me personally,” Zuckerman said.

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Law

Skin color provides a basis to challenge the peremptory strike of a juror: Court of Appeals

A Queen’s man charged with robbery will receive a new trial because the judge erred in allowing prosecutors to discriminate in the selection of jurors in violation of federal and state law, New York’s highest court has ruled.

During jury selection, the prosecutor in the trial of Joseph Bridgeforth dismissed five prospective jurors, all black or dark-complexioned women, including an Indian-American woman. Attorneys for Bridgeforth challenged the strikes, asserting that the state discriminated against dark-colored women. The prosecutor supplied non-discriminatory explanations for four of the exclusions but failed to provide a reason for striking the juror at issue. Still, the juror was not seated.

Bridgeforth, who is African-American, charged that the strikes violated the Equal Protection Clause of the U.S. Constitution, which forbids a prosecutor to challenge potential jurors on the basis of their race, sex or ethnicity. The move, Bridgeforth charged, also contravened the New York Constitution, which forbids denying someone his or her civil rights because of race, color, creed or religion.

The Court of Appeals agreed. “Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity,” Judge Sheila Abdus-Salaam wrote on behalf of five of her colleagues in a ruling dated Dec. 22. “That is why color must be distinguished from race.”

According to the court, the distinction between color and race is necessary to serve the purpose of Batson v. Kentucky, a 1986 ruling by the U.S. Supreme Court that provides a framework for challenging use of peremptory strikes, which allow lawyers to dismiss prospective jurors without saying why. Lawyers have used such strikes to get rid of jurors based on their race or ethnicity even though such discrimination is unconstitutional.

In Batson, a black man in Kentucky was convicted of burglary and receipt of stolen goods. At trial, the prosecutor used his peremptory to strike all black persons in the pool of prospective jurors, and a jury composed solely of white people was selected.

In an opinion by Justice Powell, the court in Batson outlined a three-step protocol for such situations. First, the defendant must show that the prosecutor used the strike the discriminate. If that showing is made, the burden shifts to the state to articulate a non-discriminatory reason for striking the juror. Third, the trial court must determine whether the reason proffered for the strike constitutes an excuse to discriminate, and whether party challenging the strike has shown purposeful discrimination.

At Bridgeforth’s trial, the discussion during jury selection proceeded as follows, according to the record before the court:

The district attorney has now preempted all the female black women and I don’t believe that there are valid reasons other than their face and their gender that they have been challenged,” [defense counsel said]. The People responded, ‘Well, Judge, we are either going to do Guyanese or African American, can’t do black or skin color, Judge.’

“Where individuals are excluded from jury service on the basis of their skin color, the defendant is denied the right to a trial by a jury of his or her peers, which is meant to reflect the community in which the defendant lives,” Judge Abdus-Salaam noted.

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Law

Owner of calf liable for motorist’s death, New York’s highest court rules

A farm whose calf strayed onto a road can be sued for the death of a woman who was struck by a car and died while trying to help the animal, New York’s highest court has ruled in a case that illustrates the concept of legal causation.

Holly Hain stopped her car late one night on the southbound lane of a road in upstate Steuben County to assist a calf that had escaped its closure. Leah Jamison, driving north, collided with Hain, killing her. Hain’s husband sued both Jamison’s mother, who owned the vehicle, and the Drumm Family Farm, which owned the calf, for negligence.

The trial court refused a request by Drumm to dismiss the lawsuit, finding that it could not conclude that the woman’s leaving her car in the road was sufficiently removed from the calf’s escape as to rule out the farm as a cause of the accident. The Appellate Division overturned the ruling, finding that the farm did not cause the accident.

But the Court of Appeals disagreed. “The very same risk that rendered negligent the farm’s alleged failure to restrain or retrieve its farm animal – namely, that the wandering calf would enter a roadway and cause a collision – was, in fact, the risk that came to fruition,” Judge Leslie Stein wrote on behalf of six of her colleagues in a ruling decided Dec. 22. “That the Farm could not predict the exact manner in which the calf would cause injury to a motorist does not preclude liability because the general risk and character of injuries was foreseeable.”

At issue before the court was the concept of so-called proximate causation. Even if Hain’s husband could show that Drumm had a responsibility to prevent the calf from entering the road and that the farm failed to uphold that responsibility, the husband still needed to establish that the Drumm’s negligence caused his wife’s injury.

The requirement of proximate causation promotes fairness. In short, would it be fair to make the Drumm’s pay for the injury to Holly Hain? The answer, as the Court of Appeals explained, turns on whether the harm is foreseeable and, in cases like this one, whether the intervening act – Jamison’s driving her car into Hain – is itself a foreseeable consequence of the conditions created by Drumm’s negligence.

An injury with more than one cause requires the judges to determine whether the intervening act has severed the chain of causation. As Stein explained, factors that inform the determination include the foreseeability of the event resulting in injury; the passage of time between the originally negligent act and the intervening act; whether the original act of negligence was completed or ongoing at the time of the intervening act; and what, if any, other forces combined to produce the harm.

Cases in which the intervening acts are said to sever the chain of causation have one of two distinguishing features, the court noted. First, the risk created by the original negligence did not produce the harm. (A bus driver who hits a wheelchair-bound plaintiff does not cause the injuries that arise form the plaintiff’s use of a defective replacement wheelchair.) Or second, the initial act of negligence has ceased, such as when a defendant negligently causes a vehicular accident, and the plaintiff has reached a position of safety only to be injured in a second accident.

In the case of Holly Hain, a jury “could reasonably conclude decedent’s actions in exiting her vehicle and entering the roadway were an entirely ‘normal or foreseeable consequence of the situation created by the defendant’s [Drumm’s] negligence,’” the court noted (citations omitted).

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Law

Insurer can re-file $100 million mortgage lawsuit against Bear Stearns: New York appeals court

An insurance company that has charged an erstwhile Wall Street investment bank with lying on an application for insurance can file a new legal pleading after the first one was dismissed, a New York appeals court has ruled in a decision that highlights fallout from the financial crisis eight years on.

In 2006, Bear Stearns & Co. approached CIFG Assurance North America about purchasing insurance in connection with two collateralized debt obligations (CDOs), which held bundles of mortgages that varied in their risk.

Bear Stearns, which was acquired in 2008 by JPMorgan after the former failed amid a run on the bank by customers, allegedly assured CIFG that the mortgages that went into the securities would be selected by managers acting independently of Bear Stearns and in the interest of long-term investors. While that assurance led CIFG to insure the securities, the company says, Bear Stearns itself allegedly chose the collateral, which according to the insurer, consisted of risky mortgage-backed securities from the bank’s own books, and then bet on the portfolios to fail. (For more on that type of thing, see “The Big Short.”)

A trial judge dismissed the lawsuit with prejudice (meaning permanently) because CIFG’s court papers contained insufficient information about the insurance policies and the circumstances under which they were issued. The court found fault with a failure by CIFG to describe the terms of the policies, the dates they were issued, the period of time they covered, the parties to the contracts, the beneficiaries, or any information about so-called credit default swaps that would guarantee the CDOs. (In the context of the transaction, CIFG insured the credit default swaps, which, in turn, guaranteed notes issued by the CDOs.)

But while the trial judge properly dismissed the lawsuit, she erred in not allowing CIFG to re-file it, the state’s Appellate Division ruled on Nov. 29. “A request for leave to amend a complaint should be ‘freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law,’” Judge Judge Rosalyn Richter wrote on behalf of a five-judge panel. [citations omitted] Further, “[a] party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment.]”

According to the panel, CIFG, which in July merged into Assured Guaranty, asserted that it paid more than $100 million pursuant to the policies but did not identify to whom the payments were made, or the events that triggered them.

Still, CIFG alleged on appeal that Bear Stearns created the CDOs to transfer high risk assets from its own books to other investors and knew that the market would require that the senior notes issued by the CDOs be insured. CIFG also alleges that Bear Stearns misrepresented repeatedly that the CDOs’ portfolios would be selected by managers independent from Bear Stearns. The specificity of those allegations entitle CIFG to file its lawsuit anew, the panel said.

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Law

Albany fire victim can sue city, court rules

You can sue a city for negligence in performing a governmental function if you can establish that the municipality owes you a duty of care, a New York appeals court has ruled in a lawsuit brought by a homeowner whose house burned down after the fire department told him it had been extinguished.

The blaze at issue began on the evening of Feb. 2, 2013 at the home of John Trimble, an Albany man who called 911 to report the emergency. The fire department responded to the call and proceeded to put out the fire. Some time later, according to Trimble, the lead investigator for the department advised him that the fire had been extinguished and it was safe to enter the house.

The Trimbles went in, retrieved some belongings and then left to spend the night with relatives. Several hours later, the fire started again and burned down the house. Trimble sued the city, claiming negligence. A trial judge dismissed the case, finding the city owned him no duty and was entitled to governmental immunity.

The Appellate Division’s third department disagreed. “We are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to re-enter the home, the [d]epartment assumed an affirmative duty to plaintiffs,” Justice Karen Peters wrote for a three-judge panel in a ruling dated Nov. 23 that returned the lawsuit to a jury.

Nor could the city rely on the immunity that shields cities from lawsuits for discretionary actions taken during the performance of governmental functions. Though fighting fires invariably involves discretion, the city failed to demonstrate that its alleged negligence resulted from an exercise of judgment.

According to Trimble, the department failed, in violation of its own procedures, to remove a stack of firewood and the remains of lawn furniture and other debris from a window well that the department determined was the location of the second fire.  A report by the department later showed that none of the firefighters could remember pulling away the debris.

“Thus, on this record, it cannot be said that the asserted negligence — failing to remove and fully extinguish a stack of firewood and damaged lawn furniture — was the consequence of an actual decision or choice on the part of the [d]epartment,” the court noted.

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Law New York City

DOJ shifts gears in Eric Garner investigation

Two years ago this December, then Attorney General Eric Holder announced that the Department of Justice would proceed with a federal civil rights investigation into the death of Eric Garner, an unarmed resident of Staten Island who died five months earlier after an NYPD officer put him in a chokehold while trying to arrest Garner for allegedly selling loose cigarettes.

DOJ’s investigation would be handled by prosecutors in Brooklyn and Washington, Holder said. In civil rights cases, U.S. attorneys’ offices such as the one in Brooklyn and their counterparts at the Civil Rights Division in Washington work as partners. But last Monday, the department shifted the investigation to D.C. exclusively, taking the Brooklyn prosecutors off the case.

Though federal investigators convened a grand jury in Brooklyn, the  investigation has dragged on, reportedly because of a disagreement among prosecutors there and in D.C, with the group in Brooklyn doubting whether they can prove in court that force used by Daniel Pantaleo, the officer who applied the chokehold to Garner, was unreasonable based on the circumstances. Their colleagues in Washington reportedly think they have enough evidence to proceed.

“It is taking quite a bit of time,” William Yeomans, a former acting assistant attorney general for civil rights, told the Times. “I’d almost say it’s been longer than expected, especially since a video exists.”

The video, of course, is the footage that shows Garner’s death after being subdued by Pantaleo. The city’s medical examiner ruled the death a homicide.

Holder convened the investigation within hours of a decision by a Staten Island grand jury not to charge Pantaleo. (The Staten Island grand jury considered whether Pantaleo’s conduct violated state law.)

The grand jury’s failure to charge Pantaleo sparked sparked protests world-wide. Garner’s last words, “I can’t breathe,” which he repeated 11 times, have become a rallying cry against mistreatment of Black people by the state.

“This is a small step forward,” Erica Garner, the victim’s daughter, said in a statement following the decision by DOJ to move the investigation to headquarters. Attorney General Loretta Lynch, who succeeded Holder, is a former head of the U.S. attorney’s office in Brooklyn.

The city agreed last year to pay Garner’s family $5.9 million to settle a claim of wrongful death in connection with his killing. The state’s highest court declined to order the release of transcripts from the grand jury that might have shed light on its deliberations. Pantaleo remains on desk duty and is likely to be disciplined by the department following the federal probe.

The NYPD in 1993 banned the use of chokeholds after the maneuver was implicated in a series of deaths. For his part, Pantaleo told the grand jury that he meant merely to tip Garner so that Garner would fall to the ground. Upon hearing Garner say he could not breathe, Pantaleo testified that he sought to separate himself from Garner as quickly as possible. But in the video, Pantaleo seems to continue to restrain Garner by the neck.

Now it falls to prosecutors in Washington to determine whether the NYPD violated Garner’s civil rights. What Garner says, as much as what the video shows, commands our attention.

“I can’t breathe,” he told the officers who pinned him to the pavement. “I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.”

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School officials erred in terminating teacher whose wrongful behavior did not violate a law or regulation and who hadn’t been warned, court rules

Terminating a public school teacher who has tenure is too severe a measure for behavior that is improper but does not violate any law or regulation, an appeals court in New York City has ruled in a case that shows the significance of due process in the context of public education.

Though evidence presented at a hearing established that the teacher, who teaches eighth-grade phys ed in the Park Slope section of Brooklyn, asked at least two of his female students if they had older sisters and accepted a phone number of one of them, his behavior did not warrant his firing, the Appellate Division’s first department determined in a decision published Sept. 27.

In 13 years of service, the teacher had not been accused previously of any misconduct, nor had he been warned or reprimanded regarding the conduct at issue, the court noted. Nor was there any evidence that the teacher made sexual comments to his students. An arbitrator who sided with the city concluded that termination might be “too severe” but was the only penalty that could “jolt” the teacher into knowing the seriousness of his misconduct, But that, by itself, could not justify termination, according to the majority.

Writing in dissent, Justice Peter Tom said the teacher “irreversibly abused his position… by transforming the high school where he teaches into a dating forum using his young female students to search out candidates for his illicit romantic escapades. This behavior harmed his students, even if they did not fully realize it.”

Reaction to the ruling in the neighborhood was mixed. “He shouldn’t be allowed back,” one mother  told the Post. “You shouldn’t ask students if they have attractive moms.”

But a colleague of the teacher’s told the paper he welcomed the decision, saying the incidents were “blown out of proportion.”

The ruling shines a light on the procedures that school districts must follow when dismissing a teacher who has attained tenure, which in New York safeguards educators who have earned the protection (after three or four years, depending on when the teacher was hired) from being fired arbitrarily.

Teachers in New York City have had tenure protections for nearly a century. As Dana Goldstein, a journalist who has chronicled the history of the teacher profession, has written, tenure protects educators from political interference and assaults on their civil liberties.

“This ‘due process’ was the bedrock principle of teacher unionism,” notes Goldstein, “the protection that could help prevent teachers from being fired because of their political leanings, gender, race, religious beliefs, pregnancy or opposition to administrative policies – all once-common practices.”

Among other stipulations, a tenured teacher charged with misconduct is entitled to have the charges detailed in writing, to review the evidence, to confront witnesses and to a hearing before an impartial arbitrator.

That’s not to suggest that school officials can’t discipline or remove a tenured teacher for incompetence or misconduct. Tenure simply means that the officials must have a legitimate basis for doing so and adhere to procedures provided by law.

As the justices noted, teachers can and have been removed for, among other reasons, sexually harassing and forcibly kissing a colleague, verbally abusing students, engaging in a relationship with a minor female student, and for discussing bestiality, necrophilia and his own ejaculations with students. But even in the latter case, school officials warned the teacher at least three times to stop such conduct before firing him.

The court cautioned the teacher from Park Slope that while the ruling orders a less serious punishment it does not excuse his behavior. “Should [the conduct] continue,” the justices wrote, “termination may well be in order in the future.”

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Here’s the difference between evidence seized without probable cause and evidence obtained legally

Just as the Constitution requires the suppression of evidence that police seize in an illegal arrest, the law limits that suppression to evidence that was obtained illegally, a New York appeals court has ruled.

Items collected from a defendant must be excluded from the evidence presented against him at trial if the police lacked probable cause to arrest him, but his identification by the victim and statements he later makes to police after waiving his Miranda rights are admissible, the Appellate Division’s fourth department ruled on Sept. 30.

The appeal arose from a conviction of Fleming Ashford III, who in Oct. 2011 pleaded guilty to armed robbery in the first degree. The case began when police in Rochester responded after midnight to the robbery of a taxi driver. Less than 10 minutes later, they found Ashford, who matched the driver’s description, running from them near the crime scene. After detaining him, an officer searched Ashford and seized a phone, money and a do-rag from the pocket of his jeans.

The police then brought Ashford in front of the driver, who identified Ashford as the person who robbed him. From there, police took Ashford to the station, where he waived his right to remain silent. From a courtyard near where Ashford was arrested, police retrieved a gun, some clothing and keys that belonged to the victim.

On appeal, Ashford asserted that the police lacked probable cause to arrest and search him, and, consequently, that the physical evidence, his identification by the driver and his statements to police all should have been suppressed.

The court disagreed with respect to the driver’s identification of Ashford, Ashford’s statements to police and the items collected from the courtyard.

“Here, defendant did not meet his burden of establishing that the showup identification of him, his statements to the police, and the items seized… were causally related to his unlawful arrest prior to the showup identification procedure,” Associate Justice John Centra wrote for the panel. (In New York, running from the police, by itself, does not give police probable cause to stop and search you.)

The appellate division agreed with Ashford as to the evidence seized from him but held that police “had reasonable suspicion to pursue defendant and detain him for the purpose of the showup identification,” according to Centra, who vacated Ashford’s plea “inasmuch as the erroneous suppression ruling may have affected [his] decision to plead guilty.”

According to the court, police were permitted to frisk Ashford to check for weapons but not permitted to search him. “In other words,” added Centra, “only evidence that has been come at by exploitation of that illegality should be suppressed.” (citation omitted).

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Animal shelter not liable for dog attack on owner where owner had opportunities to observe animal’s aggressiveness

An animal shelter that fails to warn someone who adopts a dog of the animal’s aggressiveness is not liable for injuries when the dog later attacks the owner if the shelter’s negligence was not the cause of those injuries.

Though the North Shore Animal League America neglected to warn the owner that the dog had previously bitten someone in the face, the animal’s displays of aggressive behavior in the first three months that the owner brought it home gave the owner sufficient knowledge of the dog’s vicious tendencies, a state appeals court in Brooklyn ruled in a decision dated Aug. 17.

The ruling overturned an order by a trial judge who permitted the lawsuit to proceed based on the owner’s claims of negligence and breach of warranty implied by the adoption agreement.

The parties agreed that after the owner adopted the dog on May 19, 2012, the dog acted aggressively, including growling when the owner attempted to feed it. Eight weeks later, the dog bit the owner’s hand when she tried to retrieve a cookie from the floor, about seven weeks before the dog allegedly bit her in the face.

The weeks between the first bite on July 13 and the attack that followed “gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012,” wrote four judges of the Appellate Division’s Second Department. “Similarly, once she knew of the dog’s vicious propensities, the plaintiff was in the best position to take precautionary measures to prevent harm to herself and others.”

While New York law has held for two centuries that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be liable for harm the animal causes as a result, in this case the owner’s becoming independently aware of the dog’s tendencies meant that the shelter’s alleged failure to advise the owner of them “was not a proximate cause of her injuries,” the court added.

According to the court, the trial judge should have dismissed both the claim of negligence against the owner and the contention that the owner violated a warranty that the dog was fit to be a pet. Even if the adoption of an animal from a shelter were a transaction to which a so-called warranty of merchantability applies, the owner failed to notify the shelter of the dog’s propensities within a reasonable time after she discovered or should have discovered them, the court ruled.