Court of Appeals Chips Away at Vicious Propensity Rule

The following article is reprinted from the New York Law Journal:

For the first time since 1929 the Court of Appeals has explicitly allowed a lawsuit, arising out of an injury caused by an animal, to proceed on a negligence theory. Previously, the court moved toward requiring that victims of injuries caused by animals prove that the animal had shown a prior vicious propensity, until eventually requiring victims to rely solely on proving a prior viciousness. That rule however, proved unworkable, and was criticized in a number of Appellate Division rulings. Now, in Hastings v. Sauve, —N.Y.3d­­— (May 2, 2013), the court has moderated its previous position by holding that an owner of an animal may be liable under ordinary tort law principles in certain situations.

Vicious Propensity Rule:

The court's recent rigidity to the vicious propensity rule can be traced back to the case of Collier v. Zambito, 1 N.Y.3d 444 (2004). In Collier, a child was bitten by a dog. In dismissing the case, the court held: "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."

While it has always been true that a showing of a prior vicious propensity was a valid basis to prove liability, such did not necessarily mean that one could not also prove liability by showing the animal owner was negligent. In 1929 the Court of Appeals held in Hyland v. Cobb that the "negligence by an owner, even without knowledge concerning a domestic animal's evil propensity, may create liability." Thereafter, the Appellate Divisions allowed many lawsuits arising out of injuries caused by negligence to proceed on that negligence theory. See e.g. Petrone v. Fernandez, 53 A.D.3d 221 (2d Dept. 2008) ("[T]he First and Second Departments traditionally recognized common-law liability independent of an animal's vicious propensities"). Further, in every other state in the union, and under the Restatement [Second] of Torts, a showing of negligence is sufficient to prove liability against an animal owner.

However in Bard v. Jahnke, 6 NY3d 592 (2006), the court held that "[W]hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier" (emphasis added). The dissent in Bard (by Judge Robert Smith) found that "it is surprising to find today's court rejecting the Restatement and the overwhelming weight of authority in other states, in favor of a rule stated 190 years ago that we have never otherwise endorsed."

Leaving no doubt on the issue, the court reiterated its bright-line approach that "negligence is no longer a basis for imposing liability after Collier and Bard" in Petrone v. Fernandez 12 N.Y.3d 546 (2009) rvsg 53 A.D.3d 221 (2d Dept. 2008). Even though the court left no room for doubt on the application of the vicious propensity rule in Petrone, Judge Eugene Pigott Jr. felt compelled to write a concurring opinion (in which Smith concurred) setting forth his uneasiness with the rule. He stated that "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." (Citations omitted).

Thereafter, in Smith v. Reilly the Fourth Department denied the defendant's motion for summary judgment in a case where a bicyclist collided with a dog that was known to bolt from defendant's residence, and had been seen in the roadway on prior occasions. In the opinion of the Appellate Division, such prior behavior showed a proclivity to act in a way that created the risk of harm to plaintiff, resulting in the accident. Yet, the Court of Appeals dismissed the case holding that the "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." Smith v. Reilly, 83 A.D.3d 1492 (4th Dept. 2011) reversed by 17 N.Y.3d 895 (2011).

After Collier, Bard and Petrone, the Appellate Divisions felt compelled to dismiss any case where a prior vicious propensity could not be shown, despite their uneasiness in doing so.

Farm Animal:

Hastings v. Sauve originated in the Third Department where the Appellate Division felt bound to dismiss the case based on the bright-line rule set down by the high court. Hastings v. Sauve, 94 A.D.3d 1171 (3d Dept. 2012). In Hastings, a motorist was injured when she collided with a cow that wandered onto the road. There was evidence that the fence separating defendant's farm from the road was overgrown and in bad repair. The court noted that:

While we are obligated to affirm Supreme Court's dismissal of plaintiffs' claims against Delarm and Sauve, we must note our discomfort with this rule of law as it applies to these facts—and with this result. There can be no doubt that the owner of a large animal such as a cow or a horse assumes a very different set of responsibilities in terms of the animal's care and maintenance than are normally undertaken by someone who owns a household pet. The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity.

Thereafter, the First Department dismissed a case where plaintiff, a bicyclist, was injured when a defendant called to her dog across a road in Central Park, causing a collision when the dog responded. Doerr v. Goldsmith, 105 A.D.3d 534 (1st Dept. 2013). In dissenting, Justice Angela Mazzarelli bemoaned the consequences of the decision:

[T]he majority's application of the Bard/Petrone rule to the facts of this case suggests that the law is in danger of evolving to the point where, simply because an animal is the immediate instrument of harm to a plaintiff, no claim for negligence lies against its owner. One can even imagine the following hypothetical situation falling within this rigid rule. A cat in an apartment several stories above the ground is sleeping on a windowsill. Its owner opens the window to let in some air, and inadvertently knocks the cat off its perch. The cat falls to the sidewalk below, injuring a pedestrian. Surely the Court of Appeals did not intend to bar a negligence claim against the owner under those circumstances. Nevertheless, the majority's inflexible reading of Bard and Petrone represents a significant step towards that absurd outcome.

Perhaps hearing the complaints of their colleagues, the Court of Appeals finally chipped away at its holding in Bard and its progeny, and reversed the Fourth Department in the Hastings case. Specifically, the court 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 the property where it is kept," and that "To apply the rule of Bard—that 'when harm is caused by a domestic animal, its owner's liability is determined solely' by the vicious propensity rule—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property." Hastings v. Sauve (citations omitted, emphasis added). The court thus differentiated the cow's behavior in Hastings, from the bull's behavior in Bard, and the dog's behavior in Collier, by arguing that the animal's behavior in Hastings did not involve aggressive or threatening behavior.

The court went on to add in Hastings that it did "not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case." And, notably, there was no mention in Hastings of the Smith case where an accident was caused by a dog in the road.


It seems logical that when the Court of Appeals does revisit this area, it will extend its holding that an owner of a farm animal may be liable under ordinary tort law principles when the animal is negligently allowed to stray from the property on which it is kept, to injuries caused by domestic animals as well, as long as the incident is not caused by aggressive or threatening behavior. Otherwise, victims struck by cats and dogs, raining from apartment windows above, or bolting into roadways, will continue to have no grounds for relief.

Marc H. Miner is the managing attorney at the personal injury law firm of Zalman Schnurman & Miner. He can be reached at 1-800-LAWLINE (1-800-529-5463) or at www.1800LAWLINE.COM.

New York Law Journal

2013-06-21 00:00:00.0

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