hissing cat
A Brooklyn woman was rebuffed in her attempt to hold a store owner liable for injuries she received in an encounter with a ferocious feline like this one. State law has eliminated common law negligence as a cause of action where domestic animals are concerned. ()

The owner of a Brooklyn bodega where an allegedly “ferocious feline” attacked a customer cannot be held liable for damages because there is no proof the shopkeeper was aware of the cat’s vicious tendencies, according to a Supreme Court judge.

Napolitano v. Alshaebi, 16549/12, underscores a controversial 188-year-old New York State policy that refuses to recognize common-law negligence as a viable cause of action in cases involving domestic animals.

Instead, New York imposes strict liability for injuries caused by a domestic animal, but only if the owner knew of the creature’s violent proclivities. Critics have complained that rule essentially gives animals “one free bite” before the owner is held liable, but the law has remained unchanged.

The Napolitano case began when the plaintiff and her miniature schnauzer stopped into the Boro Park Deli Grocery in Borough Park.

According to plaintiff Eileen Napolitano, a large gray, “opossum-like” cat emerged from a shelf of Entenmann’s cakes and swatted at her dog. The plaintiff contends that when she protectively scooped up her canine, the “ferocious feline” attacked her right leg and injured her calf.

At issue in the case before Supreme Court Justice Francois Rivera (See Profile) was whether the owner of the deli had a reason to suspect that the cat was dangerous.

“Evidence tending to demonstrate an animal’s vicious propensities may include a prior attack, a tendency to growl, snap, or bare its teeth, the manner in which the animal is restrained, the fact that the animal was kept to guard the premises, and a proclivity to act in a way that puts others at risk of harm,” Rivera wrote.

Here, the owner of the store claimed that he not only had no reason to suspect the cat was ferocious, but also maintained that it wasn’t even his cat and he’d never seen it before the incident involving this plaintiff and her dog. The plaintiff, however, produced a document indicating that the defendant was keeping the cat at the store 10 days before the attack.

Regardless, Rivera said, without proof that the owner knew of, or should have known of, the animal’s dark side, the plaintiff could not sustain her lawsuit.

Jerome Patterson of Patterson & Sciarrino in Bayside, who represented the defendant, said the very notion that the cat was “ferocious,” as the plaintiff alleges, strains credulity.

“Cats don’t have vicious propensities,” Patterson insisted. “Cats by their nature are solitary creatures. They don’t attack people. I’ve had three or four cats in my life, and they never attacked anybody. She had a little dog who got into it with the cat, which is the same size as the dog, and she probably got in between them and her leg got cut up.”

The plaintiff’s attorney, Howard Greenberg of Van Leer & Greenberg in Manhattan, was not immediately available for comment.

There have been a slew of “vicious propensity” cases in recent years, many of them in the Third Department.

The justices in Albany have wrestled with questions involving a roaming cow (see Hastings v. Sauve, 2012 NY Slip Op 02535, NYLJ, April 9, 2012) and a lovesick horse (Bloomer v. Shauger, 513095, NYLJ, April 16, 2012), a boisterous dog (Buicko v. Noto, 516669, NYLJ, Dec. 9, 2013).

In addition, the Court of Appeals had a case involving a dehorned but testosterone-infused bull who was given free rein to prowl the barnyard in hopes that he would impregnate the females when efforts at artificial insemination failed.

An unwitting handyman who wandered into the pen was attacked by Fred the bull and suffered a lacerated liver, broken ribs and injured back (Bard v. Jahnke 6 NY3d 592, 2006; NYLJ, May 3, 2006). The court said the injured handyman could not recover against Fred’s owner because Fred, albeit an aroused stud, had not previously revealed an interest in or antipathy toward humans.

Observers have noted that New York seems to have a singularly stringent standard for personal injury cases involving domestic animals, denying common law relief to plaintiffs while holding defendants strictly liable if they had forwarning of the creature’s propensities.

In fact, that the policy issue has split the Court of Appeals. Fred the bull was decided by a 4-3 margin.

“For all the faults of modern tort law, and they are many, I do not think that this attempt to cling to the uncertainties of a distant era will work out well,” Judge Robert Smith wrote in dissent. “Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy?”