George M. Heymann ()
How often have trial judges been confronted with a rule of law that seems out of touch with the realities of the facts before them but are “constrained” to abide by it because of certain decisions rendered by the appellate courts. Sometimes that frustration even occurs in the appellate division by the holdings of the Court of Appeals.
One such situation is the ongoing debate between the appellate divisions departments and the Court of Appeals, and within that court itself, regarding the strict liability “vicious propensities” rule with respect to injuries caused by domestic animals, as a direct result of the owner’s conduct, which prohibits recovery on the theory of negligence.
The leading cases that are the subject of this debate are Collier v. Zambito, 1 N.Y.3d 444 (2004), Bard v. Jahnke, 6 N.Y.3d 592 (2006), Doerr v. Goldstein, 25 N.Y.3d 1114 (2015) and Hastings v. Suave, 21 N.Y.3d 122 (2013).1
In Collier, a young boy was injured when bitten on the face by defendant’s dog. The dog was leashed and defendant encouraged the boy to approach. The dog lunged and bit him. Finding that there was no evidence that the owner was aware of prior vicious propensities of the dog, the Court of Appeals concluded that there was no basis to allow for recovery on the theory of negligence. Notwithstanding that this incident would not have occurred but for the defendant’s actions, the court found that barking and running around is normal canine behavior unless it was proven to be threatening or menacing.
The dissent by Judge G. B. Smith was the first attempt to distinguish between vicious propensities and negligence by stating that a jury could find that the defendant’s conduct enticing the boy to within close proximity of the dog was “ill considered in light of the attendant risk of injury.” 1 N.Y.3d at 451.
Two years later, in Bard, the Court of Appeals reaffirmed its position regarding the vicious propensities rule when it held against the plaintiff who was injured by a free roaming bull on defendant’s property. Plaintiff was hired to make repairs in defendant’s barn and was never given any warning that the bull was out and about and could wander into the barn at any time. Here, the court concluded that “when harm is caused by a domestic animal, its owner’s liability is determined solely by the application of the rule articulated in Collier.” 6 N.Y.3d at 599 (emphasis added).
In a vigorous dissent, Judge R. Smith questioned the court’s adherence to an “archaic and rigid rule” as common sense and fairness were no longer in play and that future cases “will put the rule adopted by the majority under strain.” Id. He noted that the elimination of negligence liability where injury is caused by a domestic animal “will probably be eroded by ad hoc exceptions.” Id.
In a subsequent case, Petrone v. Hernandez, 12 N.Y.3d 546 (Ct. of App. 2009), a mail carrier was injured while fleeing from defendant’s unleased dog. Again, the Court of Appeals followed the holdings of Collier and Bard. Judge Eugene Pigott expressed his concerns and disagreement with the outcome of that case. Concurring separately, he stated that had he sat on the Bard case at the time it was decided he would not have joined with the majority based on the reasoning of Judge R. Smith’s dissent that it was wrong to automatically reject negligence as a basis of liability for an animal owner’s conduct. He made it clear that his concurrence with the majority in Petrone was explicitly “on constraint” of the Bard decision. 12 NY3d at 551
‘Doerr v. Goldstein I’
Injuries by dogs are commonplace, resulting in constant litigation that is fact specific.
In Doerr v. Goldsmith, 105 A.D.3d 534 (1st Dept. 2013), plaintiff, while riding his bike in Central Park, was injured when the defendants allowed their dog to run across the bike path after plaintiff yelled out to hold the dog as he was fast approaching. The dog was being held by defendant Goldsmith, who then released it to run across the path when co-defendant Smith clapped her hands as a signal/command for the dog to run to her. As a result, the plaintiff could not avoid striking the dog, was thrown from his bike and severely injured. Rather than sue on the theory of vicious propensities, plaintiff brought the action on the basis of the defendants’ negligence in failing to restrain their dog at that critical moment after warning.
Defendant Smith’s summary judgment motion for dismissal was denied by the Supreme Court, which was then reversed by the appellate division. The majority held that it was “constrained” to reach its decision entirely in the context of strict liability as set forth by the Court of Appeals.
The dissent, which argued for reasonableness and commonsense, emphasized Judge Pigott’s concurrence in Petrone “on constraint” and his endorsement of Judge R. Smith’s dissent in Bard. It pointed out that following the holdings of the Court of Appeals would excise all remedies for relief when it was the defendant’s actions and not the instinctive volitional behavior of the dog that caused the accident.
In 2013, the Court of Appeals in Hastings, allowed recovery for negligence where a farm animal strayed from defendant’s property onto a public highway and collided with the plaintiff’s car, causing her to sustain injuries.
In reversing the Appellate Division, Third Department, (which affirmed the trial court’s granting of defendant’s motion to dismiss because it was “obligated” to do so, but expressed its “discomfort” in light of the nature of the circumstances),2 the Court of Appeals unexpectedly departed from Bard. Although it allowed for recovery that fell outside the strict liability-vicious propensities rule, it clearly limited this holding to farm animals. Whether this holding would apply to dogs, cats and other household pets, the court said “that question must await a different case. 21 N.Y.3d at 126.3
‘Doerr v. Goldsmith II’
Seeing an opportunity, post-Hastings, to rectify its previous decision in Doerr, the Appellate Division, First Department, allowed the plaintiff to reargue the matter. The appellate division then reversed itself, concluding that it was not the propensities of the dog that caused the plaintiff’s injuries, but the defendant’s actions “that turned an animal into an instrumentality of harm.” 110 A.D.3d 453 at 455 (1st Dept. 2013).
In a memorandum decision, the Court of Appeals reversed the appellate division, stating that “Bard v. Jahnke … constrains us to reject plaintiff’s negligence causes of action against defendants arising from injuries caused by defendants’ dogs … . Furthermore, our holding in Hastings v. Suave … does not allow plaintiff to recover based on defendants’ purported negligence in the handling of their dogs, which were not domestic farm animals subject to an owner’s duty to prevent such animals from wandering unsupervised off the farm.” 25 N.Y.3d at 1116 (internal citations omitted; emphasis added).4
A lengthy concurring opinion by the late Judge Sheila Abdus-Salaam, attempts to rationalize and harmonize Bard and its progeny, resulting in explanations that seek to stretch reality to conform to prior holdings of the court. As the majority of the court views it, “dogs may deem their masters’ commands considerably less compelling than the forces of acceleration and gravity [such as throwing a ball]. … [Thus,] [t]he inability to predict or control how a dog will interpret, react and respond to its surroundings is why negligence cannot lie based on the owner’s order alone.” Id. at 1131-32.
Because animals can react or not react to commands in various ways, and there is no way to know why this particular dog did what it did, the court found that “there is no principled basis on which to impose negligence liability.” Id. at 1133.
In either case, it stretches credulity to find that the act of the throwing of a ball toward a biker is negligence, whereas a person giving commands to a dog to run across a biker’s path cannot legally be the proximate cause for an accident, and that failure to prove prior vicious propensities precludes any recourse for the injured person in the judicial system.
The court held Bard established a “bright-line” rule limiting recovery to the theory of strict liability which, according to the court, outweighs the limited number of cases where its application and the outcome “may seem unsatisfactory.” Id. at 1137. Where an owner is unaware of his animal’s tendency to harm others, he or she “should not bear the costs of the animal’s instinctive decisions” even if “poorly directed or unrestrained.” Id.
Then-Chief Judge Jonathan Lippman dissented, noting that, as per Hastings, the vicious propensities rule does not cover every situation. In “directing [an] animal to engage in conduct that causes direct and immediate harm … the fault should be attributed to the owner.” Id. at 1142. He points out that dog owners often expend time, effort and expense to train their dogs to act on command and under circumstances such as Doerr the owners should not be immunized from liability as the injury did not result from the dog’s vicious propensities but the owners’ conduct.
In a second dissent, Judge Eugene Fahey clearly states the holding in Bard is “wrong” and he would overrule it. In discussing other jurisdictions that have incorporated the language of the Restatement (Second) of Torts §518 into their body of laws, he states that New York’s rejection of it “identifies [it] as a unique outlier” (id. at 1149), and encourages the adoption of the Restatement doctrine as “reasonable and equitable” (id. at 1157) where, notwithstanding vicious propensities, an owner can be liable for negligence for failing to prevent acts that will result in harm to others. The judge further criticized Bard‘s conclusion that remedies are dependent “solely” on the application of Collier by contrasting the Hastings decision as an ad hoc exception to Bard. Id. at 1154.
‘Scavetta v. Wechsler’
The most recent incarnation of this debate regarding strict liability where, like Doerr, the plaintiff was injured by a dog as a result of its owner’s conduct, and was left with no cause of action for relief because vicious propensities of the animal was not a factor, is Scavetta v. Wechsler, 149 A.D.3d 202, 49 N.Y.S.3d 436 (1st Dept. 2017).5
Here, the defendant attached his dog’s leash to an unsecured bike rack and proceeded down the street to a pizzeria. In an attempt to follow his master, the dog pulled the rack from its location and began running down the street dragging it behind him. The plaintiff was struck by the rack causing him to spin around and land on his back, sustaining injuries.
“On constraint” of Bard, the Appellate Division, First Department, affirmed the trial court’s summary judgment motion for dismissal, as negligence is no longer a basis for recovery. Frustrated by the Court of Appeals’ reversal of its Doerr decision, the court took the “opportunity to acknowledge plaintiff’s persuasive argument that the Bard rule may be neither prudent law nor prudent policy.” Id. at 437. “Were we not so constrained, however, we would, like the dissent judges in Bard and Doerr, permit plaintiffs to pursue their negligence cause of action.” Id. at 442.
Under facts such as these, Doerr and the like, defendants bear no responsibility for their negligence and the injured plaintiffs are left without recourse.
While the Court of Appeals remains steadfast in its application of Collier and Bard, there will be many more cases such as Doerr and Scavetta that will keep this issue alive for years to come.
1. See Heymann, “Is the ‘Vicious Propensities’ Rule Losing it’s Bite?,” N.Y.L.J., 2/18/15, p.4, col.4, for more detail of the seminal cases.
2. See Bloomer v. Shauger, 94 A.D.3d 1273, aff’d 21 N.Y.3d 917 (2013), where the plaintiff was injured in trying to assist the defendant in restraining his horse. The Third Department was “constrained” to view that case exclusively on the theory of strict liability.
3. This exception to Bard was reiterated in Hain v. Jamison, 28 N.Y.3d 524 (Ct. of App. 2016). Here, however, it could not be determined, as a matter of law, whether defendant’s negligence in letting its calf wander onto a public highway merely furnished the occasion for the accident, or that the intervening act of the deceased plaintiff getting out of her car to assist the calf off the road and was killed by an oncoming vehicle was the proximate cause of her death, the matter could not be summarily dismissed in favor of the defendant. See Heymann, “Proximate Cause and Intervening Acts,” N.Y.L.J., 2/24/17, p.4, col.4).
4. In the companion case, Dobinski v. Lockhart, the Court of Appeals affirmed the Appellate Division, Fourth Department, which granted summary dismissal to the defendants because they had no prior knowledge that their dog, who ran off their property causing injury to the biker plaintiff, had vicious propensities.
5. This decision was written by then Justice Presiding Rolando Acosta, who was elevated to Presiding Justice by Gov. Andrew Cuomo on May 22, 2017.