New York should join the majority of other states and allow plaintiffs injured by pets that do not show vicious propensities to bring negligence claims against their owners, a state appeals court said in a signed decision.
Affirming a lower court’s decision to dismiss a lawsuit filed by a man who was knocked on his back by a bike rack being dragged by a spooked dog running down a Manhattan street, a unanimous panel of the Appellate Division, First Department, ruled March 16 that were it not bound by past Court of Appeals decisions, it would allow the plaintiff to pursue a negligence claim.
But under the rule established by the Court of Appeals’ 2006 decision in Bard v. Jahnke, 6 NY3d 592, plaintiffs cannot recover from injuries caused by a nonvicious dog, even if the owner’s negligent conduct caused the injuries, Justice Rolando Acosta wrote for the court.
“This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the state of New York without recourse,” Acosta said.
According to the decision, on March 24, 2014, defendant Stuart Wechsler tied his 35-pound dog to a roughly 5-pound bike rack outside of a pizzeria in the Upper East Side of Manhattan, but did not check if the rack was secured.
As Wechsler entered the restaurant, his dog began running down the street with the bike rack in tow. The dog apparently tried to follow its owner and was spooked by the sound of the rack scraping the sidewalk, according to court papers.
Plaintiff Gregory Scavetta was walking nearby and saw the dog dart under a car. Scavetta stepped toward the dog to see if it needed help and the dog suddenly ran in Scavetta’s direction still dragging the rack.
Scavetta’s leg got tangled in the rack and he was knocked over. He suffered a fractured knee as a result, said Steven Seiden of Seiden & Kaufman, who represented Scavetta in his suit against Wechsler.
Manhattan Supreme Court Justice Carol Edmead granted Wechsler’s motion to dismiss, citing Court of Appeals precedent that negligence is not a viable cause of action in cases where a plaintiff is injured by a domestic animal and that a plaintiff may only recover through strict liability by showing that the animal displays vicious propensities.
In Bard, the majority of a 4-3 Court of Appeals rejected the rule stated in the Second Restatement of Torts §518 permitting liability for the owner of a domestic animal who negligently fails to prevent harm caused by the animal, regardless of whether or not the animal showed vicious propensities.
The dissent in Bard, which involved a breeding bull kept on a farm that attacked a carpenter working on the property, wrote that the majority left New York with “an archaic, rigid rule, contrary to fairness and common sense.”
The question of whether the Bard rule applied to dogs and cats was answered nine years later with the Court of Appeals’ decision in Doerr v. Goldsmith, 25 NY3d 1114, which was yet another 4-3 decision.
The majority in Doerr said that Bard constrained the court to reject a negligence claim by a cyclist who was knocked over in Central Park by a dog crossing the bike path at its owner’s command.
Writing in Scavetta v. Wechsler, 155262/14, Acosta said that, like the dissenters in Bard and Doerr, the First Department panel would allow Scavetta to pursue a negligence claim if it were allowed to.
Acosta said that courts could avoid the “harshness” of the Bard rule if there were an exception allowing a dog owner to be held in negligence if the dog is attached to an “unsecured, dangerous object, allowing the dog to drag the object through the streets and cause injury to others.”
“A dog owner who, without observing a reasonable standard of care, attaches his or her dog to an object that could foreseeably become weaponized if the dog is able to drag the object through public areas should not be immune from liability when that conduct causes injury,” Acosta said.
Justices Dianne Renwick, Karla Moskowitz, Paul Feinman and Marcy Kahn joined on the decision.
John Denby, a partner at Devitt Spellman Barrett, and Maggie O’Connor, an associate with the firm, represented Wechsler. Denby said in an interview that he was pleased with decision but declined to comment further.
Seiden said in an interview that he saw the panel’s decision as a “lengthy dissenting opinion of the Doerr case.”
“I think Justice Acosta understood exactly what we were claiming and the lengthy opinion expressed the court’s frustration with the present law in New York,” Seiden said. He said he is considering whether to file for leave to argue the case before the Court of Appeals, but noted that two of the dissenters in Doerr, former Judges Jonathan Lippman and Eugene Pigott, have since left the court.