When Animals Attack in New York - Part I

The following article appeared in the February 27, 2012 New York Law Journal:


By Marc Miner Esq.

During the past year victims of animal attacks have had a hard time finding relief through the courts. Towards the end of 2011 the Court of Appeals in Smith v. Reilly dismissed plaintiff’s case because he could not overcome the defendant’s submission that the dog in issue did not have a “vicious propensity.”[i] Such a result has become more common as the Court of Appeals has restricted the liability theories under which such cases can be proven. In fact, for persons injured as a result of the actions of an animal,New York is perhaps the toughest jurisdiction in the nation to be in. To understand why those injured by animals in New York have such a hard time reaching a jury, one must understand what the standard of law is today. In 2004 the Court of Appeals in Collier v. Zambito stated that “the law in 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.”[ii] Two years later in Bard v. Jahnke, the Court of Appeals held an animal owner’s liability is to be determined “solely” by application of the vicious propensity rule.[iii] The owner of a domestic animal, whether a cat, dog, horse or bull, 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.[iv] Vicious propensities include the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation."[v] Once knowledge of a vicious propensity is shown "an owner faces strict liability for the harm the animal causes as a result of those propensities."[vi] Dogs are not entitled to "one free bite." Vicious propensity may be shown by other means.[vii] The facts of each case must be looked at. Thus vicious propensity may be shown under certain circumstances such as: whether the dog has been known to growl, snap or bare its teeth; whether the dog was kept restrained, and the reasons why; and whether the dog was kept as a guard dog.[viii] “A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act.”[ix] New York is unique in that when an injury is caused by an animal, whether or not the owner of the animal acted negligent, is wholly irrelevant on the issue of whether the injury victim will be compensated for the injuries suffered. The one and only question is whether the particular offending animal had previously shown a propensity to act in the manner which caused the injury. New York appears to be the only state in the nation that rejects the rule set forth in the Restatement [Second] of Torts that the owner of a domestic animal who does not know or have reason to know that the animal is more dangerous than others of its class may still be liable for negligently failing to prevent the animal from inflicting an injury.[x] Further, despite having a strict liability rule, New York has not followed a number of states which have statutorily eliminated the requirement that a plaintiff prove that a dog owner knew or should have known of the dog’s vicious tendencies. In adopting a strict liability approach, those states have decided that a dog owner as opposed to wholly innocent victims should bear the risk of dog ownership.[xi] In the Collier case a 12 year old boy was a guest in the defendant’s home, where he was bitten by the defendant’s dog. The parties were unaware of any prior incidents, and plaintiff herself testified that the dog had always been friendly. Without a showing of a prior vicious propensity the case was dismissed. In Bard the Court of Appeals crystallized that they did not intend to stray from their holding in Collier and that when it comes to dealing with domestic animals, justice is blind as to whether the animal is a 20 pound poodle or 2000 pound bull.[xii] In Bard, the plaintiff was a carpenter hired to perform work on a farm. He was aware that there were cows in the section of property where he was performing the work, but not that there was a bull. However, as he was working, he became aware that a bull was a few feet away from him when the bull "bellered". The bull (whose name was "Fred") had charged and struck the plaintiff in the chest, slamming him into pipes in the stall. Plaintiff's case was dismissed because Fred, who was allowed to roam freely and impregnate the cows, had according to his owner, never previously acted aggressively or injured another farm animal or human being. Further, the court declined to hold that a breeding bull, (or for that matter female animals caring for their young), are a dangerous class of animals as a matter of law. That the farmer may have been negligent, in failing to warn of the bull or confine it, was of no consideration. The next time the Court of Appeals considered an animal attack, in Bernstein v. Penny Whistle Toys, Inc., it made clear that it does not matter where the incident occurred. The only standard that will be considered is the vicious propensity test, and the duty of a possessor of property to keep the premises reasonably safe, has no bearing in the discussion.[xiii] In Petrone v. Hernandez, the Court of Appeals held that a Defendant's violation of the local leash law was “irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability” after Collier and Bard.[xiv] In the past year, victims of animal attacks have had a particularly hard time finding relief through the courts. The Fourth Department followed Petrone in holding that a violation of Agriculture and Markets Law § 353 was equally irrelevant. The Court held that even assuming, arguendo, that the statute required that shelter be provided to a domestic animal the violation of that statute was irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability for injuries sustained as the result of” the actions of a domestic animal.[xv] In the same case, the court held that, as Res Ipsa Loquitor is a negligence theory, it cannot be used in a case caused by an animal injury. Thus, plaintiff’s cause of action relying on a Res Ipsa theory that a horse would not have escaped confinement and ran into the roadway absent negligence was dismissed. In the Smith case, the plaintiff was a bicyclist who was injured when a dog owned by the defendant ran into the road and collided with plaintiff’s bicycle, causing plaintiff to be propelled over the handlebars. The motion court denied the defendants motion for summary judgment, and the Fourth Department affirmed in a 3-2 decision, finding an issue of fact based upon defendant’s testimony that the dog had a propensity to bolt from her residence and that she had observed the dog in and around the roadway on several occasions. The Court of Appeals reversed in a one paragraph memorandum decision holding that “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.” In three cases decided in the past year by the Appellate Divisions where dogs or horses have escaped their confinements, and caused accidents involving motorists, or bicyclists, the cases have been dismissed in the absence of a showing that the animal had a propensity to escape and interfere with traffic. It made no difference if the owner failed to lock the gate to the fence surrounding her property allowing her dog to push open gate and run into road.[xvi] The retention of an expert to show that an animal, or group of animals, were dangerous was wasted money by plaintiff, as the only issue the court is willing to consider is the vicious propensity of the specific animal in question. Thus, plaintiff’s case was dismissed where he was attacked by a pack of 6 dogs owned by the defendant, despite expert testimony that the dogs may have been engaging in "social facilitation" and "pack behavior" as such was irrelevant and speculative.[xvii] Where a plaintiff had been knocked down by a dog, there was no actionable case based upon the owner's negligent failure to restrain, where the plaintiff failed to show vicious propensity.[xviii] Where a plaintiff saw his neighbor's dog run at him, and tripped and fell as he attempted to run away, the case was dismissed as there was no evidence that the dog had previously run at other people.[xix] Despite the Court’s seeming enmity towards victims of animal attacks, the Appellate Divisions have recently found some cases actionable. Thus, vicious propensities have been found where a dog frequently shoved its nose under a fence and growled and snapped at neighbors[xx]; Where, a dog owner testified that he would put on a "bite sleeve" and trained the dog to jump up and grab the “bite sleeve”[xxi]; Where a dog had aggressively barked and growled at strangers in defendants’ presence and defendants were aware that the dog was “moody” and “protective”[xxii]; And, where defendants testified that their barking dog rushed toward cars and people on numerous occasions prior to the incident with plaintiff.[xxiii] In summary, a person who has been injured due to the actions of a domestic animal must show that the animal had a propensity to engage in the behavior which caused the injuries. Evidence must be obtained from people who had observed the animal’s behavior. While such testimony may come from the victim, or people who came in contact with the animal (e.g. neighbors, veterinarians, delivery persons, the Department of Health, etc.), often a plaintiff will have to rely on the animal owner’s testimony in trying to prove a case. Since a plaintiff may be forced to rely on the defendant’s testimony in proving a case, and the court will not consider the defendant’s negligence or violation of law as relevant, New York is the "ruff"-est jurisdiction in the nation for a victim of an animal attack to find relief. Marc Miner, esq. is the principal attorney at the law firm of Zalman Schnurman & Miner. He has written and lectured in the past on various personal injury matters, and can be reached at www.1800LAWLINE.COM. Reprinted with permission from the February 27, 2012 edition of the New York Law Journal © 2012, ALM media Properties, LLC, all rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@aolm.com or visit www.almreprints.com. If you have been bitten or injured by a dog, or any other animal, you may call attorney Marc Miner for a free consultation about your rights at 1-800-LAWLINE (1-800-5295463).

[i] Smith v. Reilly, 17 N.Y.3d 895 (2011).

[ii] Collier v. Zambito, 1 N.Y.3d 444 (2004).

[iii] Bard v. Jahnke, 6 N.Y.3d 592 (2006)

[iv] Hosmer v. Carney, 228 NY 73, 75 (1920).

[v] Dickson v. McCoy, 29 NY 400, 403, (1868).

[vi] Collier v. Zambito, 1 N.Y.3d 444 (2004).

[vii] Collier v. Zambito, 1 N.Y.3d 444

[viii] Hankhe v. Friederich, 140 NY 224 (1893).

[ix] Anderson v. Carduner, 279 A.D.2d 369 (1stDept. 2001)

[x] Bard v. Jahnke, 6 N.Y.3d 592 (2006) dissent by J.R.S. Smith

[xi] See Collier v. Zambito, 1 N.Y.3d 444 and footnote discussing statutes inArizona,California,Florida,Iowa,Michigan,Minnesota,Montana,Nebraska, andNew Jersey.

[xii] Bard v. Jahnke, 6 N.Y.3d 592 (2006). Similarly, see Krieger v. Cogar, 83 A.D.3d 1552 (4thDept. 2011) where plaintiff was knocked down by a horse.

[xiii] Bernstein v. Penny Whistle Toys, Inc. 10 N.Y.3d 787 (2008)

[xiv] Petrone v. Fernandez, 12 N.Y.3d 546 (2009).

[xv] Tennant v. Tabor, 89 A.D.3d 1461 (4th Dept. 2011).

[xvi] Vichot v. Day, 80 A.D.3d 851 (3dDept 2011); Rockwood v. Labate, 83 A.D.3d 1530 (4thDept. 2011); Tennant v. Tabor, 89 A.D.3d 1461 (4th Dept. 2011).

[xvii] Curbello v.Walker, 81 A.D.3d 772 (2dDept. 2011)

[xviii] Gordon v. Davidson, 87 a.d.3d 769 (3d Dept. 2011).

[xix] Barone v. Phillips, 83 A.D.3d 1523 (1stDept. 2011).

[xx] Rosenbaum v. River 80 A.D.2d 686 (2dDept. 2011).

[xxi] Gannon v. Conti, 86 A.D.3d 704 (3dDept. 2011).

[xxii] Grillo v. Williams, 71 A.D.3d 1480 (4thDept 2010).

[xxiii] Lewis v. Lustan, 72 A.D.3d 1486 (4thDept. 2010).

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