VICIOUS PROPENSTIY/DOG BITES AND OTHER ANIMAL INJURIES

Collier v Zambito 1 NY3d 444 (2004)

http://www.courts.state.ny.us/Reporter/3dseries/2004/2004_00960.htm (February 24, 2019)

“Defendants Charles and Mary Zambito own Cecil, a beagle-collie-rottweiler mixed breed dog that they keep as a family pet. Defendants customarily confined Cecil to the kitchen area, behind a gate, when they were away from home and when visitors came, because he would bark. On the night of December 31, 1998, 12-year-old Matthew Collier was a guest of the defendants’ son, Daniel. He had been to the defendants’ home on several previous occasions, and on that evening had been upstairs with Daniel and several other children. When Matthew came downstairs to use the bathroom, the dog began to bark. Mary Zambito placed Cecil on a leash and, when Matthew emerged from the bathroom, invited him to approach to allow the dog to smell him, as the dog knew him from prior visits. As the boy approached, Cecil lunged and bit [*2]Matthew’s face. There is {**1 NY3d at 446}no dispute that the dog’s attack was unprovoked. The parties testified at their examinations before trial that, to their knowledge, Cecil had never previously threatened or bitten anyone.”

“At Supreme Court, defendants moved for summary judgment to dismiss plaintiff’s complaint for failure to state a cause of action. Specifically, defendants argued that plaintiff did not demonstrate that the dog had vicious propensities or that the defendants knew or should have known of the dog’s alleged vicious propensities. Plaintiff cross-moved for summary judgment on the issue of liability. Supreme Court denied both motions, finding that plaintiff established an issue of fact as to whether the defendants knew or should have known of Cecil’s alleged vicious propensities. The court held that defendants’ implied knowledge of such propensities could be inferred by defendants’ confinement of Cecil in the kitchen.”

“The Appellate Division reversed, on the law, finding that plaintiff failed to raise an issue of fact as to whether the defendants were aware or should have been aware of their dog’s alleged vicious propensities (299 AD2d 866 [2002]). The Court further found no evidence that Cecil actually had vicious propensities of the type that resulted in Matthew’s injury. Two Justices dissented and would have voted to affirm, finding that plaintiff raised an issue of fact as to “whether defendants knew or should have known of Cecil’s dangerous propensities and, if so, whether defendant was negligent in initiating the contact between plaintiff’s son and Cecil” (299 AD2d at 868). We now affirm.”

“Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice (see Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223, 225 [1897]; see also 5A-5 Warren, Negligence in New York Courts {**1 NY3d at 447}§ 5.04 [6] [2003]). In addition, a triable issue of fact as to knowledge of a dog’s vicious propensities might be raised—even in the absence of proof that the dog had actually bitten someone—by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained (see Hahnke v Friederich, 140 NY 224, 226 [1893]; see also Rider v White, 65 NY 54, 55-56 [1875]). The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities (see Hahnke, 140 NY at 227).”

Bard v Jahnke 6 NY3d 592 (2006)

http://nycourts.gov/reporter/3dseries/2006/2006_03440.htm (February 24 2019)

“The accident underlying this litigation occurred on September{**6 NY3d at 594} 27, 2001 at Hemlock Valley Farms in Otsego County, a dairy farm owned and operated by defendant Reinhardt Jahnke and his wife in partnership with their two sons. At roughly 8:00 a.m., plaintiff Larry Bard, a self-employed carpenter, arrived at the farm to meet defendant John Timer, another self-employed carpenter. One of Jahnke’s sons had asked Timer to repair ripped cow mattresses in a certain section—called the “low cow district”—of the farm’s free-stall dairy barn. This large [*2]barn, which was divided into several sections, housed approximately 400 cows at the time, 130 of them in the low cow district. The repair work involved chiseling off the bolts fastening the damaged mattresses to the concrete base of a stall, stretching the mattresses and then refastening the bolts. Timer had asked Bard the day before if he would be interested in helping him carry out this task, and Bard had replied that he would.”

“Bard retrieved some tools from his truck and started to work at about 8:30 a.m. He testified that a number of cows wandered into the area as he was working. Further, he was “familiar with working in and around cows,” which would “come up, drool on you, lick on you and everything else,” and that he didn’t “usually pay much attention to them.” At about 9:00 a.m., as Bard was down on his knees removing bolts, he first noticed a bull “[w]hen he stepped in behind him” and “bellered” within a distance of two to three feet. Bard testified that he “slowly kind of looked around, and didn’t know what to do at that point.” As he “went to stand up,” the bull “took [him] in the chest. [The bull] charged [him] then [and] proceeded to start slamming [him] into the pipes” in the stall. No one else was present in the low cow district at the time. Neither Jahnke nor anyone else associated with the farm knew ahead of time that Timer planned{**6 NY3d at 595} to repair the mattresses that day, or that Bard would be working for Timer to carry out this task.”

According to Supreme Court, these owners are subject to “some duty of enhanced care” to restrain or confine the animal or to warn a human being who{**6 NY3d at 596} might come into contact with it. Applying this rule to the facts, Supreme Court granted defendants’ motions for summary judgment because Jahnke did not know that Bard would be at his farm or working in the dairy barn, and Timer was unaware of the cleanup bull’s presence in the barn.

“The Appellate Division affirmed, but on a different basis altogether. Noting that a bull is a domestic animal as defined in Agriculture and Markets Law § 108 (7) and citing our recent decision in Collier v Zambito (1 NY3d 444 [2004]), the Court concluded that Jahnke was not liable for Bard’s injuries unless he knew or should have known of the bull’s vicious or violent propensities. The Court noted that the record contained no evidence of this, and “[t]o the contrary, it contains competent evidence establishing that, prior to [Bard’s] accident, the subject bull had never injured another person or animal or behaved in a hostile or threatening manner” (16 AD3d 896, 897 [3d Dept 2005]).”

”Finally, with respect to Bard’s negligence claim, the Appellate Division noted that it had “considered and decline[d] to adopt the enhanced duty rule espoused under certain limited circumstances by the First and Second Departments” (id. at 898). Bard subsequently sought to appeal so much of the Court’s order as affirmed the grant of summary judgment to Jahnke. We granted him leave to appeal, and now affirm on the ground adduced by the Appellate Division.”

“Only two years ago, in Collier, we restated our long-standing rule “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. Vicious propensities include the propensity to do any act that might endanger the safety of the{**6 NY3d at 597} persons and property of others in a given situation” (Collier, 1 NY3d at 446 [internal quotation marks and citations omitted]; see also NY PJI 2:220 [2006]).”

“Once this knowledge is established, the owner faces strict liability.[FN2] We made two additional points in Collier, which bear repeating. First, while knowledge of vicious propensities “may of course be established by proof of prior acts of a similar kind of which the owner had notice,” a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less (Collier, 1 NY3d at 446). In Collier, a case in which a dog bit a child, we gave the example of evidence that a dog had, for example, “been known to growl, snap or bare its teeth,” or that “the owner chose to restrain the dog, and the manner in which the dog was restrained” (id. at 447).”

“In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id.).”

Petrone v Fernandez 12 NY3d 546 (2009)

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04694.htm (February 24, 2019)

“On May 9, 2005, plaintiff Melanie Petrone, a mail carrier employed by the United States Postal Service, was making the rounds on a “drive-out” mail route in Douglaston, Queens. At about 11:30 a.m., she parked her Honda Accord along the side of a one-way roadway, directly across the street from the house where defendant James McCloy resided at the time. The [*2]house’s front door is set back about 15 feet from the sidewalk, and the lawn slopes down toward the street. The lawn is unfenced. As plaintiff got out of her car, she observed at least two landscapers working on the house’s lawn. After she had walked about six feet toward the house, plaintiff also saw a dog—defendant’s then nine-year-old rottweiler—lying on the lawn, unleashed. She immediately “turned back to walk back to [her] vehicle,”{**12 NY3d at 548} intending to skip the mail delivery because of the unrestrained dog, a postal procedure she called “flagging” a house.”

“According to plaintiff, when she was about four feet from her car, she “turned to see if the dog had moved and the dog had proceeded to run at [her] from the top of the hill”; and had come to within approximately six feet of her.[FN*] She “ran” the short remaining distance to her car, and “tried to jump through” the open window on the driver’s side “[l]egs first.” As plaintiff describes what she did, she “grabbed” the car and flung her right leg through the open window, jamming her right middle finger on “[t]he outside of the doorframe where the window comes down” as she executed this maneuver. She ended up stuck in an awkward position—with her right leg inside the car and her left leg outside—and “screaming . . . for someone to help.” The dog was “[r]ight next to [her],” but “did not do anything.” Plaintiff does not recall whether the dog ever barked at her. In other words, the dog did not bite or threaten or apparently make any contact whatsoever with plaintiff.”

“Plaintiff handed defendant his mail, and continued on her rounds. Soon, however, she “felt pain” in her right middle finger, which “began to bruise.” She called her shop steward to tell him what had happened and he, in turn, informed her manager. The manager met and accompanied plaintiff to a nearby medical facility where her injured finger was X-rayed, and diagnosed as “possibl[y] fracture[d].” As a result of this diagnosis, plaintiff’s right middle finger was splinted for about five weeks, and taped to the adjoining finger for an additional week or so; no medication was ever prescribed to her for the injury. Plaintiff missed about six weeks of work, but was paid her full salary during the absence. At the time of her deposition, 10 months after the incident, plaintiff complained that the{**12 NY3d at 549} finger “still ache[d],” especially in the “colder weather,” and was “hard to bend . . . still.” In addition, she could not “really put any pressure on [*3]it,” and had “a hard time opening bottles.” Plaintiff also was required to “vary [her] work” when “do[ing] what’s called, ‘finger[ing] the mail’ ” on account of the residual stiffness of her finger.”

“In September 2005, plaintiff sued defendant and the owner of the house for personal injuries as a result of her encounter with the dog. She alleged a first cause of action based on defendants’ supposed knowledge of the dog’s “prior history of vicious propensities”; and a second cause of action for negligence because of defendants’ “violation of . . . laws, statute[s], regulation[s], and ordinance[s].” The second cause of action was essentially premised on the local leash law, section 161.05 (a) of the New York City Health Code (24 RCNY 161.05 [a]), which provides that “a person who owns, possesses or controls a dog shall not permit it to be in a public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long” (emphasis added).”

“Supreme Court issued a decision, dated November 29, 2006, granting the motion and, after searching the record, dismissing the complaint against both defendants. The court noted that the owner of the house had made out a prima facie case of entitlement to summary judgment by showing that he had no knowledge of the dog’s vicious propensities; that “the dog, in fact, neither had vicious propensities nor behaved in a manner that reflect[ed] a proclivity to act in a way that put others at risk of harm”; and that “the dog’s alleged conduct that resulted in plaintiff’s injuries was not vicious or reasonably foreseeable.”{**12 NY3d at 550} Further, plaintiff failed to rebut this prima facie case “with evidence establishing either the existence of the [dog’s] alleged vicious propensities or [the owner of the house’s] knowledge thereof.” Supreme Court opined that “the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that defendant . . . left the dog unrestrained.”

“Plaintiff subsequently took an appeal, which she limited to the trial court’s dismissal of her negligence cause of action against both defendants. The Appellate Division held, contrary to the Third Department’s decision in Alia v Fiorina (39 AD3d 1068 [3d Dept 2007]), that a dog owner “may be held liable to a plaintiff based upon an alleged violation of a local leash ordinance and the dog’s behavior, even though the dog ha[s] not displayed any prior [*4]vicious propensities” (Petrone v Fernandez, 53 AD3d 221, 222 [2d Dept 2008]). As a consequence, the court deleted the provision of Supreme Court’s order which awarded summary judgment dismissing the negligence cause of action against defendant. The Appellate Division has asked us if this portion of its order was properly made, and we conclude that it was not.”

“[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier” (Bard v Jahnke, 6 NY3d 592, 599 [2006] [emphasis added])—i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities (see Collier, 1 NY3d at 446-447; see also Bard, 6 NY3d at 601 [R.S. Smith, J., dissenting] [objecting to “the rule . . . adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face—that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned”]). Just last year we unanimously affirmed an Appellate Division decision rejecting the notion that a negligence cause of action survives Collier and Bard (see Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008], affg 40 AD3d 224 [1st Dept 2007]). Here, defendant’s violation of the local leash law is “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 (Alia, 39 AD3d at 1069).”