This was the determination of the Appellate Division, First Department, in Doerr v. Goldsmith (NYLJ, 4/18/13) where a bicycle rider collided with a dog that ran into his path, causing him to fall off his bike and sustain injuries, and, yet, could not sue the dog’s owner for negligence.
The majority in this case relied, inter alia, on four prior holdings of the Court of Appeals in reaching its conclusion that the plaintiff cannot recover for his injuries. These cases, Collier v. Zambito (1 NY3d 444 ); Bard v. Jahnke (6 NY3d 592 ); Petrone v. Fernandez (12 NY3d 546 ) and Smith v. Reilly, 17 NY3d 895, will be discussed in more detail below.
In Doer, 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 (citation omitted). 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, [supra] at 550; Collier v. Zambito, [supra] at 446; see also Bard v. Jahnke, [supra] 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, [supra]).”
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, 94 AD3d 1273, 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’].”
In Collier v. Zambito, supra, the plaintiff child was playing at the defendants’ house with their son and other children. Their dog was always confines 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 lease 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 have vicious propensities of the type that resulted in the plaintiff’s injury. Two justices dissented. The Court of Appeals affirmed the reversal.
The Court of Appeals explained its positions thusly:
“For at least 188 years ( )*, the law of this State has been that the 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 ( ). The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities ( ).
“In addition, animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless 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.” (Citation omitted)
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. Another factor to be given consideration in assessing the “level of threat posed” by the dog is the age of the victim, as children are more “vulnerable” to attacks by dogs than adults, requiring even greater supervision by the owner. 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, supra, 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. It was Fred’s role to impregnate those cows who failed to conceive by artificial insemination. On the day that plaintiff was injured, as a result of his unexpected meeting with Fred, he was there to do some repair work in the dairy barn at the request of another self-employed carpenter who had worked on the farm in the past. Neither the other carpenter nor Jahnke informed plaintiff of the bull’s presence. Moreover, Jahnke was unaware that the workers would be on his premises on the date of the incident. At about 9:00 that morning while working on his knees the plaintiff “first noticed a bull ‘[w]hen he stepped in behind him’ and ‘bellered’ within a distance of two to three feet.” Looking around and not knowing what to do, the plaintiff stood up whereupon the bull “ ‘took [him] in the chest. [The bull] charged [him] then [and] proceeded to start slamming [him] into the pipes’ in the stall.” No one else was around at the time and plaintiff finally escaped to his truck where he stayed until he was able to summon help.
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 v. Zambito, supra, 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 spelled out in Collier v. Zambito, set forth above. Once the plaintiff establishes knowledge, then the owner faces strict liability. “Here, Fred had never attacked any farm animal or human being before [this incident]. He had always moved unrestrained within the limits of the barn’s low cow district, regularly coming into contact with other farm animals, farm workers and members of the Jahnke family without incident or hint of hostility. He had never acted in a way that put others at risk of harm. As a result, Bard cannot recover under our 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, 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.”
In Petrone v. Fernandez, supra, the plaintiff 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” (NYC Health Code §161.05 [24 RCNY 161.05(a)]).
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 any 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.” (citation omitted)
Judge Pigott concurred in a separate opinion noting 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 (citation omitted), 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’ (citation omitted).”
In the memorandum opinion of Smith v. Reilly, supra, also involving a collision between a cyclist and a dog, 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 of 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]).”
Returning to the initial case of Doer v Goldsmith, supra, Justice Mazzarelli in a common sense dissent, pointing 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. *** The common denominator in each of the cited cases is that the plaintiff was injured because an animal did what nature permits it to do in the absence of the owner’s control. Here, conversely, the dog was in the control of defendants at all times in the split second before the accident occurred. Had Smith not called the dog, and Goldsmith not let it go, plaintiff would have ridden past them without incident. Thus, the majority’s statement that ‘there is no evidence that the defendant had knowledge that her dog had a propensity to interfere with traffic’ is irrelevant. 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)
*Matter in parenthesis ( ) are omitted internal citations.