On Amateur Chihuahua Breeding And Bailments

by: Peter J. Gallagher (LinkedIn)

After reading the opening paragraph of the Appellate Division’s decision in Rivera v. Canseo, I was hooked. Here it is:

[Plaintiff] owns a female chihuahua. Defendant . . . owns a male Chihuahua. [Plaintiff] and [defendant] reached an oral agreement to have their dogs mate. [Plaintiff] was to obtain puppies from the mating and [defendant] was to receive consideration for the use of his dog.

Interesting facts, check. Awkward references to uncomfortable subjects reminiscent of 1950’s health class videos – “obtain puppies from the mating” – check. And what exactly does it mean to “receive consideration for the use of his dog”? Needless to say, I was hooked.

[As it turns out, the consideration question was never answered. Plaintiff claimed that defendant was to receive “the pick of the litter if the mating ultimately resulted in the birth of puppies,” while defendant claimed he was to receive $500, “regardless of whether [plaintiff’s] dog was impregnated.” Because “[t]he exact nature of [defendant’s] expected consideration [was] not material” to the court’s decision, however, the dispute was never resolved.]

In Rivera, after plaintiff and defendant agreed to have their Chihuahuas mate, plaintiff brought her dog to defendant’s home, along with a supply of the dog food to which her dog was accustomed. According to plaintiff, her dog was in good health when she left her at defendant’s home. Clearly a hopeless romantic, “[defendant] placed [plaintiff’s] dog and his dog in the basement together” and locked the door.

The next day, defendant called plaintiff and told her that her dog refused to eat the food that she brought and instead ate the food defendant put out for his dog. Plaintiff wanted to pick her dog up that day, but defendant convinced her to wait one more day to give the dogs additional time to get to know each other.

When plaintiff got her dog back later the next day, her dog appeared sick and dehydrated. She took the dog to the vet where it was treated with fluids and antibiotics, resulting in a bill for $1,276.58. The vet’s records did not identify a cause of the dog’s illness, nor did they attribute it to either “a lack of food or ingestion of food to which the dog was unaccustomed.”

Plaintiff sued in the Special Civil Part for “neglect and abuse of her dog.” After trial, the court concluded that plaintiff had not established that defendant caused her dog to become ill. The court held that the vet’s records did not ascribe fault to defendant or anyone else. Plaintiff appealed.

The Appellate Division agreed with the trial court and affirmed, but added some additional commentary on bailment. The Appellate Division held that plaintiff “created a bailment when she left her dog at defendant’s home.” A bailment is created when one person leaves “chattel” with another and “the latter is given primary control of the chattel for the time being.” “For example, a bailment is created when jewelry is checked with a swimming pool attendant, diamonds are delivered to a retail jeweler for sale, and automobile is left in a shop to be washed, and an airplane is stored in a hanger.” And, apparently, also when a Chihuahua is left with a neighbor to mate with the neighbor’s dog.   

“When a bailment has a mutual benefit for the bailor and bailee, the bailee has a duty to exercise reasonable care for the safekeeping of the chattel bailed.” If the chattel is lost or damaged, a presumption of negligence arises and the bailee (the person with whom the chattel was left) must show that the loss did not occur as a result of his or her negligence.

In Rivera, the Appellate Division held that defendant was able to overcome the presumption of negligence. He testified that he tried to give plaintiff’s dog the food plaintiff provided, but that the dog would not eat it. The Appellate Division also noted, as the trial court did, that the vet’s records do not blame defendant for plaintiff’s dog’s illness.

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