PetSmart, Inc. v. Eighth Judicial Dist. Court of Nev.

499 P.3d 1182

PETSMART, INC., Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Timothy C. Williams, District Judge, Respondents,andJames Todd; and Raphaela Todd, Real Parties in Interest.

No. 82454

Supreme Court of Nevada.

FILED DECEMBER 9, 2021

Law Offices of Lane S. Kay and Lane S. Kay, Las Vegas; Amaro Baldwin, LLP, and Michael L. Amaro, Long Beach, California, for Petitioner.

Claggett & Sykes Law Firm and Thomas W. Askeroth, Las Vegas, for Real Parties in Interest.

BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and SILVER, JJ.

OPINION

By the Court, SILVER, J.:

James Todd was sitting in his living room when his dog, Chip, suddenly attacked and bit James's arm, tearing it open. James's wife, Raphaela, had adopted Chip two days before from an independent pet-rescue organization holding an adoption event at a PetSmart store. The Todds later learned that Chip had previously been adopted and returned several times because of his aggressive behaviors and violent history, and they subsequently sued the rescue organization, PetSmart, and others. PetSmart filed a motion for summary judgment, asserting that there was no basis to hold it liable. The district court denied the motion. PetSmart now challenges that ruling by way of an original petition for a writ of mandamus.

To resolve this writ petition, we must decide a question of first impression for this court—namely, whether a pet store may be held liable under tort law where a dog adopted at the store through an adoption event conducted by an independent charitable organization later attacks and injures an individual. We hold that, as a pet store typically owes no duty to the individual in such circumstances, the store can be held liable only if it assumes a duty of care or has an agency relationship with the charitable organization that conducted the adoption event. Applying these principles, we conclude that PetSmart cannot be held liable because it did not assume a duty of care or have an agency relationship with the charitable organization. Accordingly, because the district court erroneously denied PetSmart's motion for summary judgment, we grant the petition.

FACTS AND PROCEDURAL HISTORY

PetSmart, through its PetSmart Charities adoption program (collectively PetSmart), contracts with independent animal welfare organizations, called "agency partners," to find homes for homeless pets and thereby help end euthanasia as a population control method.¹ PetSmart's agency partners’ vetting and prequalification process includes confirming the charity's 501(c)(3) status and liability insurance, a site visit, and an internet search of the organization by a PetSmart associate. After the vetting process, PetSmart provides the agency partner with a manual, which outlines policies and procedures for operating adoption events in the store, such as the cleaning and dress guidelines, but which does not control how the agency partner runs its adoption program.

PetSmart's agency-partner agreement clarifies that the agency partner is "fully responsible" for its adoptable pets, must conduct adoptions in designated areas, and must "use its own shelter adoption policies and procedures ... [and] make the final decision in the placement of a pet." It also warns that the public might view agency partner volunteers as PetSmart employees when in fact they are not and prohibits the agency partner from interfering with PetSmart's business, taking PetSmart inventory, disparaging PetSmart, or selling products or competitive services while in a PetSmart store. The agreement also sets guidelines for how the agency partner must operate inside of PetSmart. For example, the agreement requires the area to be kept clean and the animals to be vaccinated and healthy, and it requires the agency partner to remove from the store any animal that shows signs of aggression. The agency partner must require adopters to sign a PetSmart adoption release form and inform PetSmart of the adoption. Finally, the agreement states that it does not create "a legal partnership, joint venture, landlord-tenant or employee-employer relationship" between the agency partner and PetSmart and that the agency partner "is an Independent entity responsible for itself."

When an adoption occurs, the adopter has the option of signing up for PetSmart's Pet Perks membership, and the adopter may choose to provide PetSmart with their email and phone number in return for PetSmart store benefits. PetSmart also pays a sum to the agency partner for every adoption completed at a PetSmart store, and this sum increases when the agency partner reaches a certain threshold of adoptions. If a pet is returned to the organization, that organization may put the pet up for a subsequent adoption, and PetSmart has no measures in place to prevent agency partners from claiming an award for subsequent adoptions. PetSmart keeps copies of the adoption release forms, but it does not cross-reference those forms to determine whether the pet was previously adopted.

A Home 4 Spot (AH4S) acquired Chip, a large mixed-breed dog, from The Animal Foundation (TAF). TAF had adopted Chip out twice before, but both adopters returned Chip due to his aggressive behavior toward humans and other animals. TAF therefore determined that Chip was not adoptable. For reasons unexplained by the record, AH4S took Chip from TAF and placed him up for adoption at an adoption day event held at PetSmart. A family adopted Chip but returned him to AH4S less than a week later, reporting that Chip had growled at the children and chased the father around the house. AH4S again placed Chip up for adoption at an event conducted at PetSmart, where another family adopted him. But that family also returned Chip to AH4S, reporting that he unexpectedly attacked the daughter, knocking her to the ground, biting her arm, and severely injuring her thumb.

AH4S then put Chip up for adoption again through an adoption day event held in the loading dock area of a PetSmart store. Raphaela Todd decided to adopt Chip because he acted very friendly toward Raphaela and her small dog. Raphaela worked with an AH4S associate who characterized Chip as "a gentle giant" and explained that Chip had previously been adopted and returned following a minor incident where Chip nipped a person who was teasing him. Raphaela signed a form that explained PetSmart was not affiliated with AH4S, wherein she released PetSmart and PetSmart Charities of liability related to Chip's adoption. Upon adopting Chip, Raphaela received a goody bag with PetSmart coupons and a PetSmart adoption kit.

Two days after adopting Chip, Raphaela and her husband, James Todd, were sitting in their living room when Chip, who was lying on the floor in front of James's chair, started growling at James. Before Raphaela could even call Chip's name, Chip suddenly lunged and bit James on his right forearm, trying to pull James to the ground and tearing deep, gaping wounds in James's arm. Raphaela tried to pry Chip's jaws open, receiving puncture wounds in the process. After Raphaela freed James, James ran into the backyard and Raphaela maneuvered herself and Chip into the garage. Chip continued trying to get back into the house to attack James. Animal Control later took the dog away.

The Todds filed a complaint for negligence, negligent infliction of emotional distress, and respondeat superior against PetSmart, AH4S, TAF, and others. Pertinent here, PetSmart moved for summary judgment, arguing it could not be held liable because it did not own or control Chip and was not involved with Chip's adoption. The district court conducted a hearing and issued an order denying PetSmart's motion for summary judgment. The court found that PetSmart owed a duty to the Todds under Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989). The district court further found that there were genuine issues of material fact concerning a possible agency relationship between PetSmart and AH4S, the Todds’ waiver, and PetSmart's vetting and prequalification procedures. PetSmart now petitions this court for writ relief, arguing that it did not owe the Todds a duty of care as a matter of law and had no agency relationship with AH4S.

DISCUSSION

We exercise our discretion to entertain the writ petition

"A writ of mandamus is available to compel the performance of an act which the law ... [requires] as a duty resulting from an office, trust or station, or to control a manifest abuse or an arbitrary or capricious exercise of discretion." Cote H . v. Eighth Judicial Dist. Court , 124 Nev. 36, 39, 175 P.3d 906, 907-08 (2008) (internal quotation marks and footnote omitted) (alterations in original). Mandamus is an extraordinary remedy, available only when there is no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170 ; see also Cote H., 124 Nev. at 39, 175 P.3d at 908.

The decision to entertain a petition for a writ of mandamus is within our sole discretion. Smith v. Eighth Judicial Dist. Court , 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Generally, we do not consider writ petitions challenging a district court order denying summary judgment. Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997). However, we may consider such a petition where doing so is in the interests of judicial economy and either there is no factual dispute and summary judgment is required pursuant to clear authority, id. , or the petition presents a matter of first impression that may be dispositive in the case, see Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 547, 376 P.3d 167, 170 (2016).

Here, the essential facts are not in dispute, and PetSmart's petition raises an important legal issue of first impression—whether a pet store may be liable to a dog-bite victim who purchased the dog from an independent organization temporarily operating on the pet store's premises. Establishing a clear...