Vicious Propensitites in Domestic Animals by Hon. George M. Heymann Continued

In recent weeks there were two Appellate Division decisions that dealt with the issue of whether the plaintiffs, who sustained injuries caused by dogs, could recover damages on the theory of negligence.

This article will discuss these two decisions, Bloom v. Lenten, [AD 3rd Dept.] 21 and Doerr v. Goldsmith, [AD 1st Dept.] 22 as well as highlight the leading Court of Appeals cases that the lower courts relied on pertaining to injuries caused by domestic animals.23

In Bloom, the plaintiff was a photographer and the defendants had a dog breeding business at their home. In 2007, plaintiff went to defendants’ home to photograph puppies of their English Labrador retriever, including a puppy named Delilah. Approximately three years later, the plaintiff again went to defendants’ home to photograph new puppies. While in the backyard on her second visit that year, three full grown dogs were running around playing and chasing after Delilah, who had now grown substantially and weighed about 50 pounds. As she was being chased, Delilah “ran into the back of plaintiff’s leg, knocking her forward and onto the ground” causing plaintiff to sustain serious injuries.

The Supreme Court granted defendants’ motion for summary judgment dismissal as to the negligence claim but not as to the strict liability claim finding questions of fact as to whether Delilah had vicious propensities of which the defendants would be aware of.

On appeal, the Appellate Division, Third Department, modified by finding that the defendants “conclusively demonstrated that they lacked knowledge of a vicious propensity on Delilah’s part, entitling them to summary dismissing the complaint.” Citing Collier v. Zambito24 the court held that “a vicious propensity does not necessarily have to be ‘dangerous or ferocious’ but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long as ‘such proclivity results in the injury giving rise to the lawsuit’.”25 Thus, the conduct of Delilah running into the plaintiff while being “playfully chased” by the other dogs was nothing more the “normal canine behavior that does not amount to vicious propensity (see Hamlin v. Sullivan, 93 AD3d [1013] at 1015; Bloomer v. Shauger, 94 AD3d 1273, 1274, affd ___ NY3d___, 2013 NY Slip Op 03121).”

In similar fashion, the Appellate Division, First Department, in Doerr, held that where a bicycle rider collided with a dog that ran into his path, causing him to fall off his bike and sustain injuries, the plaintiff could not sue the dog’s owner for negligence.

Here, the plaintiff was riding on a path in Central Park when he observed the defendant Goldsmith holding the dog in question on one side of the path and the defendant Smith on the other side clapping her hands as a signal to the dog, which belonged to her, to come to her. In anticipation of what might occur, “plaintiff screamed out, ‘Watch your dog’.” Unable to avoid hitting the dog, plaintiff was “propelled” from his bike. The plaintiff argued that this was a case of negligence based on the conduct of the defendants and not one caused by the “vicious propensities” of the animal.

The Supreme Court, N.Y. County, denied the defendant Smith’s motion for summary judgment dismissing the complaint and the Appellate Division reversed.

The appellate court held that: “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal ( )26. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities (Petrone v. Fernandez, 12 NY3d 546 at 550; Collier v. Zambito, [supra] at 446; see also Bard v. Jahnke, 6 NY3d 592 at 596-597, 599). The term ‘vicious propensities’ includes ‘the propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ (Collier v. Zambito, [supra] at 446). Here, there was no evidence that the defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted (see Smith v. Reilly, 17 NY3d 895).”

Despite a vigorous dissent, the majority went on to state that “[h]ere, the accident occurred when defendant’s dog collided with plaintiff, and defendant’s alleged negligence in calling the dog does not provide a basis to depart from the strict liability rule recognized by the Court of Appeals in Petrone, Bard and Collier (see Bloomer v. Shauger, [supra at]1274 [3d Dept 2012] [‘Although… defendant’s conduct on the day in question indeed may have evidenced some negligence on her part…, the Court of Appeals has made its position clear…; therefore, we are constrained to view this matter solely in the context of strict liability’]…).” (Emphasis added)

COURT OF APPEALS CASES

In Collier v. Zambito the plaintiff child was playing at the defendants’ house with their son and other children. Their dog was always confined to the kitchen behind a gate but would bark when visitors were in the house. When plaintiff came downstairs to use the bathroom, defendant Mary Zambito had the dog on a leash and encouraged the plaintiff to approach the dog. As he did, the dog lunged and bit him in the face. “There was no dispute that the dog’s attack was unprovoked” and that it “had never previously threatened or bitten anyone.”

Defendants sought summary judgment dismissal of the suit because plaintiff did not demonstrate that the dog had vicious propensities or that the defendants knew or should have known of such vicious propensities. Plaintiff cross-moved for summary judgment for liability. The Supreme Court denied both motions finding issues of fact as to the defendants’ knowledge of the dog’s vicious propensities since they kept it confined to the kitchen behind a gate when visitors came to the house due to the constant barking.

The Appellate Division reversed, on the law, finding that plaintiff failed to show that defendants were aware or should have been aware of the dog’s vicious propensities. The court found that there was no evidence that the dog had vicious propensities of the type that resulted in the plaintiff’s injury.  Two justices dissented.  The Court of Appeals affirmed the reversal.
“[T]he owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities ( ). Vicious propensities include the ‘propensity to do any act that might endanger the safety of persons and property of others in a given situation’ ( ). Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice ( ). In addition, a triable issue of fact as to the knowledge of a dog’s vicious propensities might be raised ‘even in the absence of proof that the dog had actually bitten someone’ by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained ( ).  *** [Behavior that] reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities albeit only when such proclivity results in the injury giving rise to the lawsuit.  But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether it had vicious propensities.”

In Collier, there was no evidence that the dog’s behavior was ever “threatening or menacing. Indeed, the dog’s actions ‘barking and running around’ are consistent with normal canine behavior. Barking and running around are what dogs do.”

In a dissenting opinion, Judge G. B. Smith pointed out that “of course dogs run around and bark.” The fact that defendants’ dog had never actually bitten or threatened anyone should not be dispositive, where, as in this case, the dog was never given an opportunity to do so.  *** Regardless that the defendant may have meant well by inviting the plaintiff to approach the dog, “a jury could reasonably conclude that it was ill-considered in light of the attendant risk of injury.”

Bard v. Jahnke gave the Court of Appeals an opportunity to have a “bull” session. In this case, the bull was named “Fred.”  Fred was roaming freely on the defendants’ property in an area referred to as a “low cow district” housing about 130 cows in order to impregnate those cows who failed to conceive by artificial insemination. Plaintiff was there to do some repair work in the dairy barn at the request of another self-employed carpenter and was injured when Fred charged him and slammed him into the pipes in the stall.

The Supreme Court granted the defendants’ summary judgment motions for dismissal because Janke did not know that the plaintiff would be working in his barn that day and the co-carpenter did not know of the bull’s presence in the barn.  The Appellate Division affirmed but on the grounds enunciated in Collier that Jahnke could not be liable for plaintiff’s injuries unless he knew or should have known of the bull’s vicious or violent propensities. The court further found that there was “competent” evidence to establish that prior to the accident Fred “had never injured another person or animal or behaved in a hostile or threatening manner.”

The Court of Appeals affirmed, re-stating its “long-standing rule” regarding “known or should have known of an animal’s vicious propensities” as set forth in Collier. Fred had never attacked any farm animal or human being before this incident. Thus, Bard could not “recover under the traditional rule. *** In sum, when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.” The Court rejected plaintiff’s argument that the defendant is liable under common-law negligence as stated in section 518 of the Restatement (Second) of Torts which “provides generally that the owner of a domestic animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm, or is negligent in failing to prevent harm.”

Addressing the Court’s failure to adopt the view of the Restatement, Judge R. S. Smith, in his dissent, strongly asserted that “[t]his Court today becomes the first state court of last resort to reject the Restatement rule. I think it is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense that will probably be eroded by ad hoc exceptions. *** No opinion of our Court before today announced the rule, now adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face ‘that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned. *** The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or a bull?”  Judge Smith then cited a few examples where, in his opinion, future cases “will put the rule adopted by the majority under strain.”

As reflected in subsequent cases, Judge Smith’s dissent in Bard v. Jahnke has struck a chord with other jurists in the various courts.

In Petrone v. Fernandez, the plaintiff, a mail carrier, was chased by the defendant’s Rottweiler who was lying unleashed on the unfenced front lawn of defendant’s house.  As soon as plaintiff noticed the dog, while approaching the house, she immediately turned away and began to return to her car. The dog began to run in her direction and she then ran the remaining distance to the car and attempted to jump through the open window on the driver’s side, sustaining injuries. Ironically, the dog did not bark, bite, threaten or come in contact with the plaintiff as she tried to extricate herself from her state of “panic” that the dog was about to attack her.

Plaintiff sued on the theory of defendant’s knowledge of his dog’s prior vicious propensities and for negligence of the local leash law that required the defendant to keep his dog leashed “in any open or unfenced area abutting on a public place.”27

The Supreme Court dismissed the complaint against the defendant because there was no showing that the defendant had knowledge of the dog having any vicious propensities or behavior demonstrating a proclivity to act in any way to harm others and “the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that the defendant … left the dog unrestrained.”

The Appellate Division held that there was a cause of action for the leash law, as well as the dog’s behavior notwithstanding that there was no prior display of vicious propensities and deleted those provisions of the Supreme Court’s order dismissing the cause of action for negligence.

The Court of Appeals reversed stating: “ ‘[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier’ (Bard v. Jahnke, [supra][emphasis added by Court]) – i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities. *** Here, defendant’s violation of the local leash law is ‘irrelevant because such a violation is only some sort of evidence of negligence, and negligence is no longer a basis for imposing liability’ after Collier and Bard.” ( )

In a separate concurring opinion, Judge Pigott noted that had he sat in the Bard case he would not have joined the majority’s opinion. However, “on constraint” of that decision he concurred in this case. “In my view, and for the reasons stated in Judge R. S. Smith’s dissent in Bard ( ), it was wrong to reject negligence altogether as a basis for the liability of an animal owner. ‘[N]egligence by an owner, even without knowledge concerning a domestic animal’s [vicious] propensity, may create liability’ ( ).”

Smith v. Reilly also involved a collision between a cyclist and a dog. In a memorandum opinion, the Court of Appeals held: “Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v. Zambito, [supra]).”

Hamlin v. Sullivan, cited by the Appellate Division, Third Department, in Bloom, is similar to that case in that the plaintiff was injured when defendant’s dog, running freely in a park area designated for that purpose, ran into the plaintiff causing her to fall. On appeal, the Supreme Court’s denial of defendant’s motion for summary judgment dismissal was reversed. Citing, inter alia, Smith, Collier and Bard, the court opined that “[i]nasmuch as the behavior of which defendant admittedly had notice –jumping on people- was not the behavior that resulted in plaintiff’s injury, and plaintiff failed to produce any evidence that defendant had notice of a proclivity by [the dog] to run into people and knock them over, plaintiff failed to raise a question of fact to preclude summary judgment ( ).”28 The Appellate Division concluded that running around in a dog park where dogs are supposed to run around was “typical canine behavior” and insufficient to establish “vicious propensities.”

Bloomer v. Shauger, cited in both Bloom and Doerr, involved a horse who was “spooked” when its owner approached the horse with a “lead line” causing the horse to suddenly pull its head back which was resting on plaintiff’s shoulder. Plaintiff was injured when the middle finger of his left hand got caught in one of the rings in the horse’s metal halter which he had been holding.

Here, again, the appellate court, in affirming the trial court’s granting of defendant’s summary judgment motion for dismissal was “constrained to view this matter solely in the context of strict liability” citing Petrone, Bard and Collier. The court pointed out its recently expressed “discomfort” in New York’s failure to recognize a common law negligence to recover for injuries caused by a domestic animal where the “defendant’s conduct on the day in question indeed may have evidenced some negligence on her part.”29

The dissent averred that the horse’s behavior at issue – avoidance to lead lines- was the very behavior that resulted in the plaintiff’s injury and might not have occurred but for the defendant approaching with the lead line. Thus, “the horse responded in a manner entirely consistent with [her] propensity” to avoid the lead line and the matter should proceed to trial on the contested factual issues.

The Court of Appeals affirmed the Appellate Division, reiterating its holdings in Bard v. Jahnke and Collier that the defendant had no knowledge of the horse’s vicious propensities, etc. “No showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of ‘behavior that is normal or typical for the particular type of animal in question ( ).”30

In a major departure from its prior holding in Bard, the Court of Appeals [Smith, J] in Hastings v. Suave31 held that “the rule of Bard v. Jahnke does not bar a suit for negligence when a farm animal has been allowed to stray from property where it is kept.”  Here, plaintiff was injured when her vehicle collided with a cow that wandered off defendant’s property and onto a public highway. The Supreme Court granted defendants’ motions for summary judgment dismissal and the Appellate Division, Third Department, affirmed.  “While we are obliged to affirm … we must note our discomfort with this rule as it applies to these facts – and with this result. ***Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on the farm property… The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it.” (Emphasis added)

In reversing the Appellate Division, the Court of Appeals finally recognized that situations have and will continue to arise where its strict liability holdings will become “eroded” by “ad hoc exceptions.”32 “We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal – i.e., a domestic animal as that term is defined in Agriculture and Markets Law §108 (7) [supra at fn 4] – is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.” (Emphasis added)33

CONCLUSION

The Court of Appeals’ latest holding, which leaves the door ajar for recovery in a “different” case, in which the injuries were caused by the negligence of the owners of household pets without having to prove the defendants’ knowledge of their pet’s vicious propensities, is a major breakthrough in this area of the law.

Perhaps one or both of the plaintiffs in Bloom and/or Doerr will be arguing this issue before the Court of Appeals. In that event, there is no doubt Judges Smith and Pigott will pay special attention based on their prior opinions in Bard, Petrone, and Hastings, as set forth above. In the case of Doerr v. Goldsmith, the Judges will be treated to the well reasoned, common sense, dissent by Associate Justice Mazzarelli who pointed out that “[t]he rule articulated in Bard and affirmed in Petrone is not without controversy.”  She noted Judge Pigott’s concurrence in Petrone “on constraint” of Bard and his endorsement of the dissent of Judge R. S. Smith as set forth above.  She further states that “[b]ecause of the Bard/Petrone rule, it has been virtually impossible for people injured by animals to recover if they could not establish the defendants’ knowledge of the animal’s vicious propensities. Indeed, even if the injury was not caused by ‘vicious’ behavior, no remedy exists.    ***  Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that caused the accident.” (Emphasis added)34

34 Doerr v. Goldsmith, supra at 536

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