CLINTON — A hearing on pending motions is set this week in connection with a lawsuit filed by the parents of a child who was bit by a dog last March.

Attorney John Frey on March 28 filed a petition on behalf of Tyler and Holly Harrison. The petition alleges one count against Kristopher and Ashley Greene, for dog owners’ strict liability. The suit alleges two counts against the Clinton Humane Society for product liability, negligence and breach of express warranty.

The Clinton Humane Society, through attorneys Adam Zenor and Lauren VanWaardhuizen, in November filed a motion for summary judgement. The motion states because the Clinton Humane Society was not an owner, possessor of harborer and because the Clinton Humane Society had no control over the premises where the bite occurred, the Harrisons’ tort theory fails. The motion also states the Clinton Humane Society made no express warranty that the dog, named Emmet, was child friendly and that because the written adoption contract disclaims any potential warranty as to behavior and temperament, the motion alleges the Harrisons’ contract theory fails.

Tyler and Holly Harrison, through Frey, filed a resistance to the Clinton Humane Society’s motion for summary judgement and request for oral argument. The resistance states the plaintiffs’ negligence claim is based on common law negligence during the sale of a dog to be used as a domestic pet. It is not based on common law strict liability, which applies only to those who harbor or possess an animal in Iowa. Strict liability does not require proof of negligence.

“Iowa law has long recognized common law negligence as a remedy for damages caused by negligent commercial sales,” Frey said in the resistance. The resistance states Iowa law has long recognized common law negligence as a remedy for damages caused by negligent commercial sales. Iowa recognized products liability as a result of the difficulty in proving negligence in the context of commercial sales.

“Apparently, some courts have erroneously concluded common law strict liability is the only remedy for people injured by dog bites,” Frey states in the resistance. “That position is illogical and terrible public policy because, similar to sovereign immunity, it allows commercial sellers of dogs to escape responsibility for their unreasonable actions. In Iowa, those who own a dog are held strictly liable by statute. Non-owners who possess or harbor a dog may be held accountable under common law strict liability which does not require proof of negligence, only possession with knowledge the dog is dangerous or has dangerous propensities. Others whose negligence causes injury by a dog may be held accountable under the rules of ordinary common law negligence for conduct which is unreasonable. Sellers of dogs should not get a free pass for negligent failure to warn or negligent failure to instruct.”

The resistance states the plaintiffs have proposed an amendment to their petition to clarify that the plaintiffs’ negligence claims are based on negligent sale and not common law strict liability.

The resistance alleges evidence obtained through discovery shows the Clinton Humane Society did not expressly warrant the dog to be child friendly. The plaintiffs allege the Clinton Humane Society expressly and impliedly did warrant the dog to be a boxer mix breed. The dog is predominantly a American Staffordshire Terrier breed, which is commonly known as a pit bull, according to the resistance.

“This was analogous to selling a candle and delivering a stick of dynamite,” Frey states in the resistance. “The breach of warranty caused injury to plaintiffs because the Greenes would not have purchased the dog if they knew it was a pit bull. Additionally, Holly Harrison would not have allowed a pit bull in her house. Plaintiffs therefore have valid warranty claims but need to amend their petition to correctly state the particulars of their warranty claim in conformance with the evidence. A motion for leave to amend accompanied by a proposed amended petition has been filed.”

A hearing on pending motions is set for 1:30 p.m. Friday.

The incident

In March 2017, friends Ashley Greene and Holly Harrison both had children of about the same age and the Harrison family had a dog named Bailey.

Greene and her family at the end of the day March 15, adopted a dog named Emmett from the Clinton Humane Society. Greene contacted Harrison after the Greene family had left the Clinton Humane Society with the dog. Harrison suggested that Greene bring Emmet over to the Harrison home. Greene, her children and Emmet went to the Harrison residence around 6 p.m.

According to court documents, Emmet bit Harrison’s 14-month-old son, who suffered severe injuries and initially was taken to Mercy Medical Center ― Clinton. Greene and the children stayed at the Harrison residence until police officers arrived. Officers took Emmet back to the Clinton Humane Society.