Back and Forth:

First Department Reverse Itself On Animal Liability

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent Appellate Division case involving animal liability.

This past June we discussed a Court of Appeals case, Hastings v. Sauve, where the Court of Appeals refused to apply the traditional rule requiring a plaintiff to show viscious propensities and held that a landowner or the owner of an animal may be liable under ordinary tort law principals when a farm animal is negligently allowed to stray from the property on which the animal is kept. We also noted that the case that we discussed in May, Doerr v. Goldsmith could also be reinterpreted based upon the Court of Appeals decision in Hastings. That reinterpretation has now come, not from the Court of Appeals, but from the Appellate Division, First Department who originally decided the appeal.

After Hastings v. Suave was decided by the Court of Appeals in June, the plaintiff in Doerr v. Goldsmith moved to reargue the appeal in the Appellate Division based on the Court of Appeals decision in the Hastings case. The First Department granted reargument and has now reversed its prior decision and has revived the lawsuit. As you may remember, in Doerr v. Goldsmith the plaintiff was injured on Central Park Loop Road when he was riding his bike and he collided with the defendant's dog. The plaintiff alleged that the defendant was negligent because as plaintiff was riding nearby, defendant's girlfriend, who was on the other side of the road, called for the dog which was not wearing a leash to come to her, which caused the dog to run across the road and into the plaintiff's path of travel. In the original decision, the First Department found the defendant's alleged liability in calling the dog did not provide a basis to depart from the strict liability rule recognized by the Court of Appeals. Upon the argument, the First Department found that based upon the Court of Appeals decision in Hastings v. Suave, the Courts should now recognize that an accident caused by an animal's aggressive or threatening behavior is fundamentally distinct from one caused by an animal owner's negligence.

The First Department found that the Doerr case was not about the particular actions of an animal that led to a person’s injury. Rather, it was about the actions of a person that turned the animal into an instrumentality of harm. Here, the dog was in the control of defendants at all times in the split second before the accident occurred. Had defendant Smith not called the dog, and Goldsmith not let got, plaintiff would have ridden past them without incident. The Court found that this case was different from the cases addressing the issue of injury claims arising out of animal behavior because it was defendant's actions and not the dog's own instinctive, volitional behavior that most proximately caused the accident.

There was a dissent in which Justice Andrias thought that it was improvident to presume that the Court of Appeals would apply a negligence standard to a dog owner's behavior as the majority had done. Justice Andrias noted that while cows may be expected to be kept on the farm, the Court of Appeals has thus far declined to impose liability where an owner permits a dog to be unleashed in a public place based on a theory of common law negligence. Perhaps now with another dissent, the Court of Appeals may finally rule on this issue.

Should you have any questions, please call.

Thomas M. Bona