PITTSBURGH – An Allegheny County judge has dismissed a count of negligence per se, from litigation brought by a Pittsburgh television reporter that her dog suffered fatal injuries after being groomed at a local PetSmart store, in effect being hanged by his caretakers and asphyxiated during his nail trimming.
Ashley Jean Ross first filed suit in the Allegheny County Court of Common Pleas on July 15, 2022 versus PetSmart, LLC of Phoenix, Ariz., Elizabeth J. Doty of Virginia Beach, Va. and Julie A. Miller, of Colorado Springs, Colo.
“Kobe was, in November of 2020, a 12-year-old toy poodle that Ashley Jean Ross purchased, at nine weeks of age, in Myrtle Beach, S.C., shortly after obtaining her first job in broadcasting. Ashley’s job in Myrtle Beach, S.C. was the first time she had left home and found herself at the age of 24, alone in a new job, in a new city, in need of the comfort and company that a dog can provide. Over the ensuing 12 years, Ashley’s job took her around the country and indeed around the world, and Kobe was a constant presence and constantly-devoted companion to Ashley,” the suit said.
“By 2020, Ashley, who had grown up in Pittsburgh, returned to the area and periodically took Kobe, who spent a good deal of time indoors given Ashley’s schedule, to have his nails trimmed to an appropriate length (this is typically unnecessary for dogs who spend a great deal of time running outdoors where they are naturally worn to the correct length).”
The suit explained that on Nov. 17, 2020, Ashley took Kobe to the PetSmart location in Pittsburgh’s East End for a routine nail clipping. Though she would normally remain with Kobe while his nail care took place, she was not permitted to do so since these events happened in November 2020, during restrictions imposed as a result of the COVID-19 pandemic.
Kobe was not fond of having his nails trimmed and Ashley would usually place a small muzzle on him to make sure that he was not able to nip the store employees while having his nails trimmed.
“When Ashley returned to the store to pick up Kobe, about 10 minutes after leaving him at the PetSmart, she was told by the staff that he had ‘passed out and went limp.’ Ashley went to Kobe in the grooming area and found him lying on a table, unconscious and possibly dead. Ashley rushed Kobe from the PetSmart to a nearby veterinary hospital where efforts were made to restore a heartbeat – they were not successful. Ashley returned to the store and asked to see the video surveillance tape that was taken while Kobe’s nails were trimmed (the presence of video surveillance camera in the grooming area and elsewhere in the store was obvious), but PetSmart’s employees refused to allow her to view the video tape. Ashley, after persistent inquiries, was allowed to return to the store on Dec. 1, 2020 to watch the surveillance video – the story that she had been told that Kobe simply ‘passed out and went limp’ was not true,” the suit stated.
“The surveillance tape instead showed Kobe (who already had a small muzzle on) being placed on a table and having two tethers placed around his neck, one suspended from a bar above his head, preventing him from lowering his head or moving it too far to the side, and one traveling beneath his neck, preventing him from moving his head upwards – the effect of the two tethers was to create an arrangement not unlike a hangman’s noose if Kobe were to lose his footing. Over the course of several minutes, defendants Doty and Miller began to trim Kobe’s nails and eventually turned all four of his legs to the side, suspending him over the surface of the table, in effect hanging Kobe by the neck while they trimmed his nails.”
The suit added that PetSmart knew that pets were sustaining serious injuries or death while being groomed at its stores, but annually spent millions of advertising dollars for years in presenting itself as a company who cares deeply for pets – and alleges that since 2009, more than 47 pets have been killed by PetSmart groomers.
Plaintiff counsel also offered a statement in the matter.
“Pribanic & Pribanic’s primary purpose is enforcing the rights of the innocently harmed or killed. In this case, we are doing that for Ms. Ross and her beloved dog, Toby. We all know that a world where animals are treated well is a better one for each of us. If this case results in a step in that direction, it will have been worthwhile,” Victor H. Pribanic said.
13 months after the lawsuit was first filed, PetSmart filed preliminary objections in the case on Sept. 22, seeking to have numerous paragraphs stricken from the complaint for alleged impertinent and/or scandalous material and that its claims were not sufficiently pled.
“While the unfortunate nature of the incident is recognized, plaintiff’s complaint sets forth various impertinent and scandalous statements and materials which must be stricken. Further, plaintiff’s complaint improperly sets forth multiple separate causes of action, violative of Rule 1020(a) inasmuch as the complaint sets forth nine separate causes of action, negligence, negligence per se and intentional infliction of emotional distress against each of the three defendants, under only three counts. Moreover, several of the counts set forth in plaintiff’s complaint are defective as a matter of law. Count II – Negligence Per Se, is not recognized in Pennsylvania as a separate cause of action as it is subsumed in Count I of plaintiff’s complaint asserting ordinary negligence. Count IV – Intentional Infliction of Emotional Distress, is not a valid claim in relation to property damage disputes, which is the issue here as pets are considered property under Pennsylvania law,” the objections stated.
“Count V – Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law, fails to meet the requirements to demonstrate PetSmart made misrepresentations or engaged in fraud or deception. Count VI –Breach of Implied Warranty of Good Faith and Fair Dealing, fails to demonstrate that PetSmart acted in bad faith, dishonestly, or with improper motives. Count VII – Fraud and Deceit, is a recitation of Count V and, regardless, fails to demonstrate PetSmart made misrepresentations or engaged in fraud or deception. In light of the foregoing, PetSmart respectfully requests this Honorable Court sustain its preliminary objections and enter the attached order striking plaintiff’s complaint.”
A Nov. 8 opposition response brief from the plaintiff countered that there was nothing impertinent about the plaintiff’s claims against PetSmart.
“This matter involves the death of a beloved pet by strangulation. This was disconcerting to Ashley Ross to say the least. There is no way around that. PetSmart indulges itself in a bit of hyperbole when it suggests that the paragraphs at issue constitute ‘slander.’ It is simply a waste of judicial resources under the circumstances for PetSmart to ask this court to examine 17 separate allegations for ‘impertinence,’ as the allegations do not ‘slander’ PetSmart in the least,” the brief stated, in part.
“PetSmart argues that Pennsylvania law does not recognize a cause of action for the emotional distress generated from the death of one's beloved pet. Plaintiff Ross, however, has advanced allegations in her complaint sufficient to withstand PetSmart’s preliminary objections. The upshot of this is that the death of a pet may trigger a cause of action for intentional infliction of emotion distress, where the conduct that results in the death of one’s pet is directed to the plaintiff. Such specific allegation appears in the amended complaint at where plaintiff Ross states that ‘defendants’ conduct was both intentional and directed at both Ms. Ross’s pet and Ashley Jean Ross.’ Accordingly, plaintiff Ross has met the applicable pleading in this instance.”
Ross further requested permission to amend her complaint to add two necessary elements of a negligent hiring claim, these being “1) That the employer knew (or should have known) of the violent propensities of the employee, and (2) That such employment placed the employee in a situation in which a third party may be harmed.”
UPDATE
Allegheny County Court of Common Pleas Judge Alan D. Hertzberg sustained only one of PetSmart’s numerous preliminary objections on Nov. 20, which then removed the negligence per se count from the case.
“Upon consideration of the preliminary objections of PetSmart and any response thereto, it is hereby ordered and decreed that defendant’s preliminary objections are sustained as follows: Count II of plaintiff’s complaint, alleging a claim of ‘negligence per se’ is dismissed as to defendant PetSmart as not recognized as a separate cause of action,” Hertzberg said.
For counts of negligence, negligent hiring, supervision and retention, intentional infliction of emotional distress, violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, breach of implied warranty of good faith and fair dealing, fraud and deceit, the plaintiff is seeking compensatory and punitive damages in excess of the jurisdiction of the Court’s Board of Arbitrators.
The plaintiff is represented by Victor H. Pribanic and Ernest J. Pribanic of Pribanic & Pribanic, in White Oak.
The defendants are is represented by Thomas A. Will and Bruce L. Castor III of Thomas A. Will & Associates, Jeffrey T. Morris of Elliott & Davis, both in Pittsburgh, plus John M. Wutz of Chartwell Law, in Philadelphia.
Allegheny County Court of Common Pleas case GD-22-008774
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com