Kevin G. Faley
*Originally published in
NYSBA Torts, Insurance & compensation Law Section Journal
Fall 2014 | Vol. 43. | No. 1
Introduction
Although the dog may be man’s best friend, the American public has been feeling the adverse effects of a growing dog population as dog-bite attacks are on the rise.1 New York law holds dog owners liable for injuries caused by their pets only if the owners knew or should have known of their dog’s “vicious propensity.” Once this knowledge is established, the owner faces strict liability. The Court of Appeals has made it clear that the sole claim for such attacks lies in strict tort liability, rather than ordinary negligence.2 Given this circumscribed standard – and the difficulty of providing prior notice – the popular saying is essentially true, that “every dog is entitled to one bite.”3
However, the recent holdings in Hastings v. Sauve has reformed the traditional rule. In Hastings, the Court of Appeals deviated from its long held common-law principles of liability and held that an owner of a domestic animal can be liable under ordinary negligence principles.4
The Common Dog-Bite Problem
There are approximately 83 million pet dogs in the United States and 47% of households own at least one dog.5 A survey conducted by the Center for Disease Control (CDC) and the Humane Society of the United States revealed that an estimated 4.7 million dog bites occur in the U.S. each year.6 Nearly 800,000 of those bites require medical care. Approximately two-thirds of dog bites occur on or near the victim’s property. Most victims had a familiarity or prior dealings with the dog. Even more disturbing is that approximately 50% of dog attacks involved children under 12 years old.7
The rise in dog bites has had a deleterious effect on the insurance industry. Dog bites account for roughly one-third of homeowner insurance claims nationally and insurers paid an estimated $413 million on such claims.8 In total, dog bite losses exceed one billion dollars per year.9
Interestingly, insurance companies also have their own “one bite rule.”10 A company will pay for the first occurrence, but will then either cancel the insurance or add a ‘canine exclusion’…[and] the next time the dog bites, the owner must pick up the tab.” Some insurance companies go as far as refusing coverage to certain breeds, such as Pit Bulls, Dobermans, Rottweilers, Chows – concentrating on breeds that are responsible for a disproportionate number of injuries though the years.11
The Traditional “Vicious Propensity” Rule
The traditional “vicious propensity” rule was applied by the Court of Appeals in Collier v. Zambito.12 The 12-year-old plaintiff was visiting the defendant’s home and was invited by defendant to pet defendant’s mixed breed dog, Cecil. As plaintiff approached, Cecil lunged and bit plaintiff’s face. Defendants sought summary judgment emphasizing that they did not have prior notice of Cecil’s vicious propensities, however, the Supreme Court denied the motion. On appeal, the Court of Appeals granted defendant’s motion for summary judgment.
The Court articulated that the evidence submitted by plaintiff was insufficient to raise and issue of fact as to whether the dog has vicious propensities. It further acknowledged that “for at least 188 years, the law of this state has been 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.” The Court clarified the meaning of viciousness and notice, as:
Propensities to do any act that might endanger the safety of the persons and property of others in a given situation… [and the] knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice.
Simply put, the Court re-established that the only way for the owner of an animal to learn of its vicious propensities is to witness the animal acting on such tendencies.
The nature of the attack does not demonstrate that the dog had a proclivity to such vicious behavior.13 A dog bite does not constitute conclusive evidence of the animal’s vicious state of mind.14 “Beware of Dog” signs are typically “insufficient in the absence of any additional corroborative evidence that prior to the incident that dog demonstrated and fierce or hostile tendancies.”15 Courts have consistently held that breed alone is insufficient to establish a factual issue regarding the dog’s vicious propensities.16
The Court of Appeals, in Bard v. Jahnke, held that an injury involving a domestic animal cannot create claim for ordinary negligence, but rather, is also solely determined under the rules of strict tort liability.17 In Bard, the plaintiff was engaging in carpentry work in a dairy barn on defendant’s property. While working on the barn, plaintiff was attacked and injured by a charging bull owned by defendant. The defendant allowed the bull to roam freely in order for it to breed with cows, thus, knowing of the bull’s heightened aggression level during mating season. Plaintiff argues that defendant was negligent in permitting the breeding bull to roam freely. The Court declined to apply the negligence standard. The Court reasoned that the bull “had never attacked any farm animal or human-being before…[and thus declined] to dilute the traditional…[of] vicious propensities.”
In strong opposition, Judge Robert Smith dissented and recognized that adhering to such a rigid rule was antiquated and illogical. He perceived the majority’s decision as contrary to precedent, asserting that “[t]his Court [became] the first state court of last resort to reject the Restatement rule.” Expressing confidence in the Restatement (Second) Torts which provides that “[the] one who…harbors a domestic animal is subject to liability for harm done by animal…if [the][owner][was] negligent in failing to prevent the harm,”18 Justice Smith further opined that restricting recovery in such circumstances to strict liability was contrary to fairness and unworkable.
However, after Collier and Bard, the Second Department allowed a dog attack case to proceed under a theory of negligence. In Petrone v. Fernandez, a mailwoman was injured while running away from an unrestrained Rottweiler that chased and attacked her. The Department held that a dog owner could be liable in negligence based upon his violation of a Local Leash law, even in the absence of the dog’s prior vicious propensities.19
Additionally, in certain limited circumstances, constructive, rather than actual notice was sufficient to hold defendant liable for the harm caused by defendant’s animal. In Smith v. Reilly, the Fourth Department, in a 3-2 decision, affirmed the lower court’s denial of defendant’s motion for summary judgment.20 In Smith, a bicyclist collided with a dog when it ran onto the road and collided with plaintiff, causing plaintiff to be propelled over the handlebars. The Court found that “defendant’s testimony that [the] dog had a propensity to ‘bolt’ from her residence…[raised] an issue of fact whether defendant has…constructive notice that the dog was either vicious or likely to interfere with traffic.” The Court further opined that “the evidence submitted by plaintiffs also raises a triable issue of fact whether defendant had notice of the dog’s proclivity to act in a way that created the risk of harm to plaintiff that resulted in the accident.”
Such interpretations of the traditional rule, however, were short-lived. The Court of Appeals promptly stepped in and overturned both Appellate Division decisions.
First, in overturning Petrone, a unanimous Court left little doubt on the strict application of the vicious propensity rule. Addressing the Leash Law violation, the Court held that “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.”21 Furthermore, the Court reaffirmed its holding in Bard, asserting that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.”
Judge Piggott Jr., concurring in a separate opinion, discussed his apprehension with the traditional rule articulated in Collier. He suggested that “in [his] view, and for the reasons states in Judge R.S. Smith’s dissent in Bard, it was wrong to reject negligence altogether as a basis for liability of an animal owner.” He further opined that “negligence by an owner, even without knowledge concerning a domestic animal’s vicious propensity, may create liability.”
The Court of Appeals then reversed the Fourth Department’s holding in Smith. 22 The Court invalidated the lower courts reliance on testimony that the dog, on three to five occasions, escaped defendant’s control, barked and ran towards the road, as insufficient to establish a triable issue of material fact. Preserving the traditional “vicious propensity” rule, it became clear that the Court of Appeals had no intention of deviating from its traditional rule, or so it seemed.
In With the New, Out With the Old
Although a bright-line rule regarding domestic animal owner liability was set in place, lower courts were apprehensive in applying the rigid application of the traditional rule. Even so, these courts were well aware of their duty to dismiss any case where an animal’s prior vicious propensity could not be shown. However, in Hastings v. Sauve,, the Court of Appeals decided to sidestep its long held precedent.
In Hastings, plaintiff was injured when the van she drove collided with defendant’s cow on a public road.23 The cow has been kept on defendant’s property and there was ample evidence suggesting that the fence separating the property from the road was overgrown and in bad repair. Plaintiff contended that defendant was negligent in improperly confining the cow within his property. Although the Third Department dismissed the case and held in favor of the defendant, it did so reluctantly. The Department noted that
While we are obligated to affirm Supreme Court’s dismissal of plaintiff’s claims against [defendant], we must note our discomfort with this [traditional] rule of law as it applies to these facts – and with this result. There can be no doubt that the owner of a large animal such as a cow or a horse assumes a very different set of responsibilities in terms of the animal’s care and maintenance than are normally undertaken by someone who owns a house-hold pet. The need to maintain control over such large animal is obvious…here, plaintiff was injured not because the cow was vicious or abnormal, but because [defendant] allegedly failed to keep it confined on farm property and, instead, allowed it to wander unattended onto the adjacent highway. For this reason…traditional rule of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused.24
The Third Department found that summary judgment was properly granted to defendants because the cow did not show any prior vicious propensities, stating that “it is not for this Court to alter [the traditional] rule and, while it is in place, we are obligated to enforce it.” Thus, the Appellate Division followed the Court of Appeals precedent.
The Court of Appeals had a change of heart, recognizing the growing dissatisfaction in the application of the traditional rule among the lower courts. The Court revisited Bard and Petrone in reversing the Third Department’s holdings in Hastings. It accepted the fact that to apply the rule of Bard “in a case like this would immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.” The panel of judges included Judge R.S. Smith and Judge Piggott Jr. – the two justices who respectfully criticized the Court’s constant denial of allowing a negligence cause of action in prior cases. The Court did not “consider whether the same rule applie[d] to dogs, cats, or other household pets.”25 The Court further opined that the question regarding household pets “must await a different case,” thus leaving open the possibility that the traditional “vicious propensity” rule may be on its way out.
Conclusion
The Court of Appeals is seemingly expanding liability for animal owners. Given the language of the Hastings case, it appears that it is only a matter of time before the Court expands its holding in Hastings to household pets.
Endnotes
1. Richard J. Serpe, 2013 Dog Bite Statistics Show Rise, Virginia Dog Bite Lawyer (last visited Feb. 12, 2014), http://virginiadogbitelawyer.com/2013-dog-bite-statistics-show-rise-in-certain-dog-attacks/.
2. Filer v. Adams, 106 A.D.3d 1417, 1419 (3d Dep’t 2013).
3. Kenneth M. Phillips, New York Dog Bite Lawyer, Dog Bite Law (last visited Dec. 16, 2013), http://dogbitelaw.com/mixed-dog-bite-statute-states/new-york-dog-bite-law.html.
4. Hastings v. Sauve, 21 N.Y.3d 122, 125 (2013).
5. The Humane Society,
http://www.humanesociety.org/issues/pet_overpopulation/facts/pet_ownership_statistics.html#.UrMcNWRDu6o (Sept. 27, 2013).
6. American Humane Association, http://www.americanhumane.org/animals/stop-animal-abuse/fact-sheets/dog-bites.htmp (last visited Dec. 15, 2013).
7. Id.
8. Mary Randolph, Dog Owners’ Liability Insurance, Nolo Law for All (last visited Dec. 16, 2013), http://www.nolo.com/legal-encyclopedia/free-books/dog-book/chapter11-8.html.
9. Kenneth M. Phillips, Dog Bite Statistics, Dog Bite Law (last visited Dec. 16, 2013), http://dogbitelaw.com/dog-bite-statistics/dog-bite-statistics.html.
10. Randolph, supra note 8.
11. Id.
12. Collier v. Zambito, 1 N.Y.3d 444, 446 (2004).
13. Massimo v. Monfredo, 272 A.D.2d 306, 307 (2d Dep’t 2000).
14. Rogers v. Travis, 229 A.D.2d 879, 880 (3d Dep’t 1996).
15. Lugo v. Angle of Green, Inc., 268 A.D.2d 567 (2d Dep’t 2000).
16. Mulhern v. Chai Mgmt., 309 A.D.2d 995, 997 (3d Dep’t 2003).
17. Bard v. Jahnke, 6 N.Y.3d 592, 599 (2006).
18. Id. at 600.
19. Petrone v. Fernandez, 53 A.D.3d 221, 222 (2d Dep’t 2008).
20. Smith v. Reilly, 83 A.D.3d 1492, 1493 (4th Dep’t 2011).
21. Petrone v. Reilly, 53 A.D.3d 221 (2d Dep’t 2008), rev’d, 12 N.Y.3d 546, 550 (2009).
22. Smith v. Reilly, 83 A.D.3d 1492 (4th Dep’t 2011), rev’d, 17 N.Y.3d 895, 896 (2011).
23. Hastings v. Sauve, 94 A.D.3d 1171 (3d Dep’t 2012), rev’d, 21 N.Y.3d 122, 124 (2013).
24. Id. at 1173.
25. Id. at 126.