Wolfgang Doerr v. Daniel Goldsmith / Cheryl Dobinski v. George O. Lockhart

This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 17
Wolfgang Doerr,
Respondent,
v.
Daniel Goldsmith,
Defendant,
Julie Smith,
Appellant.
---------------------------
No. 66
Cheryl Dobinski,
Appellant,
v.
George O. Lockhart, et al.,
Respondents.
Case No. 17:
Scott T. Horn, for appellant.
Dara Warren, for respondent.
Case No. 66:
Dennis J. Bischof, for appellant.
Mark P. Della Posta, for respondents.
MEMORANDUM:
In Doerr v Goldsmith, the order of the Appellate
Division should be reversed, with costs, defendant Smith's motion
for summary judgment dismissing the complaint granted and the
certified question answered in the negative. In Dobinski v
Lockhart, the order of the Appellate Division should be affirmed,
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with costs.
Under the circumstances of these cases and in light of
the arguments advanced by the parties, Bard v Jahnke (6 NY3d 592
[2006]) constrains us to reject plaintiffs' negligence causes of
action against defendants arising from injuries caused by
defendants' dogs (see Bard, 6 NY3d at 596-599; see also Bloomer v
Schauger, 21 NY3d 917, 918 [2013]; Smith v Reilly, 17 NY3d 895,
896 [2011], revg 83 AD3d 1492 [4th Dept 2011]; Petrone v
Fernandez, 12 NY3d 546, 547-555 [2009]; Collier v Zambito, 1 NY
3d 444, 446 [2004]). We decline to overrule our recently
reaffirmed precedent (see Bloomer, 21 NY3d at 918; Petrone, 12
NY3d at 547-555). Furthermore, our holding in Hastings v Sauve
(21 NY3d 122 [2013]) does not allow plaintiffs 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 (see Hastings, 21 NY3d at 124-126).
Finally, in Dobinski, the Appellate Division properly
granted summary judgment to defendants with respect to
plaintiff's strict liability cause of action. Defendants carried
their initial burden on summary judgment of establishing that
they did not know of any vicious propensities on the part of
their dogs. In response, plaintiff failed to demonstrate the
existence of a triable issue of fact as to whether defendants had
notice of the animals' harmful proclivities, and consequently,
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defendants were entitled to summary judgment on plaintiff's
strict liability claim (see Petrone, 12 NY3d at 550; see
generally Jacobsen v New York City Health and Hospitals Corp., 22
NY3d 824, 833 [2014]).
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Wolfgang Doerr v Daniel Goldsmith and Julie Smith
No. 17
Cheryl Dobinski v George O. Lockhart and Milagros Lockhart
No. 66
ABDUS-SALAAM, J. (concurring):
In these two cases, we consider whether an individual
injured by a domestic animal other than a farm animal may
institute a negligence cause of action against the owner of the
animal based on the owner's alleged misfeasance in supervising or
directing the animal. Like the majority (see majority op. at 2),
I conclude that a negligence cause of action does not lie under
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our longstanding precedent, and I reject the specific grounds
advanced by plaintiffs here for declining to apply the
controlling principles of law set forth in Bard v Jahnke (6 NY3d
592 [2006]). Therefore, I join the majority's opinion in full.
I write separately to provide additional background on these
cases, suggest further guidance for future cases, and respond to
the particular contentions of the plaintiffs and my dissenting
colleagues.
I
Doerr v Goldsmith
At about 7:00 a.m. on May 31, 2009, defendant Julie
Smith and her boyfriend, defendant Daniel Goldsmith, were
accompanied by Smith's dog in Manhattan's Central Park. The
couple did not keep the dog on a leash, acting consistently with
local regulations that permit a dog to remain off-leash in
certain designated areas of the park from 9:00 p.m. to 9:00 a.m.
(see New York City Department of Parks and Recreation Rules and
Regulations § 1-04 [i] [2]). Smith, Goldsmith and the dog were
near a section of the bicycle "loop" road that runs throughout
Central Park. Specifically, Smith and Goldsmith were outside the
roadway on opposite sides of the road, and Goldsmith was kneeling
down and holding the dog in his arms, as if hugging it.
Meanwhile, plaintiff Wolfgang Doerr was riding his
bicycle on the loop. As Doerr approached Smith and Goldsmith's
location, Smith bent down and clapped her hands on her knees, and
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she allegedly called the dog over to her. Doerr called out for
Smith and Goldsmith to control the dog, but it was too late; as
the dog crossed the street, Doerr hit the dog and was thrown from
his bike, resulting in significant injuries.
Doerr commenced this personal injury action in Supreme
Court by filing a complaint asserting a negligence cause of
action against Smith and Goldsmith based on their having
negligently "controlled and directed their dog into the path of
the plaintiff." Doerr did not set forth any strict liability
cause of action or allege that the dog had a vicious propensity.
As pertinent to this appeal, Smith answered and demanded
discovery, including depositions. After discovery, Smith moved
for summary judgment dismissing the complaint, arguing that Doerr
could not bring a negligence cause of action based on injuries
caused by a domestic pet because such claims are barred by the
rule of Bard and Petrone v Fernandez (12 NY3d 546 [2009]). Doerr
opposed the motion on the ground that the Bard rule does not
apply where, as here, liability is premised on the conduct of the
owner in turning the animal into an instrumentality of harm.
Supreme Court denied Smith's motion for summary judgment
dismissing the complaint, largely adopting Doerr's position.
A divided panel of the Appellate Division reversed
Supreme Court's order, granted Smith's motion for summary
judgment dismissing the complaint and directed the clerk to enter
judgment accordingly (see Doerr v Goldsmith, 105 AD3d 534-535
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[1st Dept 2013]). The majority determined that, because "New
York does not recognize a common-law negligence cause of action
to recover damages for injuries caused by a domestic animal,"
Doerr could not sue Smith for her allegedly negligent handling of
her dog (id. at 534 [internal quotation marks and citation
omitted]). One Justice dissented on the theory that Smith could
be held liable for her negligent instruction to the dog, as
distinct from the dog's own willful actions (see id. at 535-537
[Mazzarelli, J., dissenting]).
After the Appellate Division's decision in Doerr, we
handed down our decision in Hastings v Sauve (21 NY3d 122
[2013]), wherein we held "that the rule of Bard v Jahnke does not
bar a suit for negligence when a farm animal has been allowed to
stray from the property where it is kept" (Hastings, 21 NY3d at
124 [internal citation omitted]). Doerr moved for reargument of
his appeal in the Appellate Division or, in the alternative, for
leave to appeal to this Court.
The Appellate Division issued an order granting the
reargument motion, vacated and recalled its prior decision,
substituted a new decision, and denied plaintiff's motion for
leave to appeal. On the same day it granted the reargument
motion, the Appellate Division issued its new decision and order,
which, by a split vote, affirmed Supreme Court's order and denied
Smith's motion for summary judgment dismissing the complaint (see
Doerr v Goldsmith, 110 AD3d 452, 452-455 [1st Dept 2013]). The
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majority recounted the Bard rule, and it cited favorably the Bard
dissent's position that the rule is archaic and leads to unfair
results (see id. at 452-454). The majority decided that this
Court had recently ameliorated the harshness of the Bard rule in
Hastings, which "recognized that an accident caused by an
animal's 'aggressive or threatening behavior' is 'fundamentally
distinct' from one caused by an animal owner's negligence in
permitting the animal from [sic] wandering off the property where
it was kept" (id. at 454, quoting Hastings, 21 NY3d at 125). The
majority continued:
"We recognize that the Hastings Court did not
decide whether to apply the holding to dogs
at that time. However, that should not be an
impediment to denying summary judgment in
this case. That is because this case is of
an entirely different ilk than Hastings, Bard
and Petrone. It is not about the particular
actions of an animal that led to a person's
injury. Rather, it is about the actions of a
person that turned an 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 Smith not called the dog, and
Goldsmith not let it go, plaintiff would have
ridden past them without incident. [Smith's
and Goldsmith's] actions can be likened to
those of two people who decide to toss a ball
back and forth over a trafficked road without
regard to a bicyclist who is about to ride
into the ball's path. If the cyclist
collided with the ball and was injured,
certainly the people tossing the ball would
be liable in negligence." (id. at 455).
Two Justices dissented, voting to reverse Supreme
Court's order and grant Smith's summary judgment motion (see id.
at 455-456 [Andrias, J., dissenting]). The dissent maintained
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that, in its previous decision in this case, the court had not
overlooked any material fact or principle of law that would
warrant vacatur of the prior decision and order (see id. at 455).
The dissent distinguished Hastings on the ground this Court had
expressly limited its holding in that case to farm animals and
left open the question of its application to domestic pets (see
id. at 455-456). The dissent maintained that it would be
inappropriate to extend Hastings's holding to this case absent
further guidance from this Court (see id. at 456).
Smith moved the Appellate Division for leave to appeal
to this Court from that court's order denying her summary
judgment motion, and the Appellate Division granted the motion
and certified to us the question of whether its order was
properly made.
Dobinski v Lockhart
On the morning of May 20, 2012, plaintiff Cheryl
Dobinski and her husband were riding their bicycles on the
shoulder of Route 98 in Franklinville. The Dobinskis reached an
area of the road that was about 60 feet from the farm of
defendants George and Milagros Lockhart. At approximately the
same time, Milagros Lockhart released her husband's two German
Shepherds from her house and onto the outdoor portion of the
property. The dogs barked at the Dobinskis and ran into the
road. About 10 seconds after the dogs were released, Cheryl
Dobinski struck one of them, which caused her to flip over the
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front of her bicycle and suffer severe injuries.
Cheryl Dobinski initiated this personal injury suit in
Supreme Court by filing a complaint which, as amended, asserted
causes of action for negligence and for strict liability against
the Lockharts. Dobinski claimed that, because the Lockharts had
allowed their dogs to leave the farm and collide with her on the
road, the Lockharts had been negligent in their failure to
adequately supervise and restrain the dogs. Dobinski also argued
that the Lockharts were strictly liable for the injuries caused
by the dogs, as they had actual or constructive knowledge of the
dogs' harmful propensities, including the animals' purported
tendency to run onto the road. Dobinski further asserted that,
by failing to restrain the dogs on the property, the Lockharts
had negligently created and maintained a dangerous condition on
their premises and, eventually, on the roadway. The Lockharts
joined issue, and discovery commenced.
During discovery, Dobinski and her husband acknowledged
that they did not have any prior familiarity with the dogs or
their propensities. For their part, the Lockharts maintained
that they had never received any complaints about these specific
dogs or observed any vicious behavior from them. In fact, a
neighbor averred she had never heard of any complaints against
those two dogs or seen them interfere with traffic. The
Lockharts acknowledged that, on two occasions -- one before and
one after Dobinski's accident -- two of their other dogs had run
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into the road and been struck by a car. George Lockhart further
stated that he sometimes exercised the dogs involved in the
accident by having them chase his four-wheeler at a relatively
modest pace on his property, but never off the property.
Additionally, while it was uncontested that German Shepherds are
a breed often used as guard dogs, there was no evidence that the
Lockharts had used their dogs as guard dogs.
Following discovery, the Lockharts moved for summary
judgment dismissing the amended complaint. They argued that
Petrone precluded a negligence action in this case and that the
evidence adduced in discovery yielded no triable issue of fact as
to strict liability because they had no actual or constructive
notice of any dangerous propensity of the dogs. Dobinski opposed
the motion on the ground that triable issues of fact allegedly
existed with respect to the Lockharts' negligence and strict
liability. In Dobinski's estimation, George Lockhart's use of a
four-wheeler to exercise the dogs was tantamount to training the
dogs to chase vehicles at high speed. Dobinski viewed the
incident in which other dogs owned by the Lockharts had run into
the road as evidence of the harmful propensities of the dogs at
issue here.
Supreme Court denied the Lockharts' motion for summary
judgment dismissing the amended complaint, finding that Dobinski
had a viable negligence cause of action under Hastings. The
court did not directly address Dobinski's strict liability claim.
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The Lockharts appealed.
The Appellate Division unanimously reversed Supreme
Court's order, granted the Lockharts' motion for summary judgment
dismissing the amended complaint and dismissed the amended
complaint (see Dobinski v Lockhart, 121 AD3d 1601, 1601-1602 [4th
Dept 2014]). Recognizing strict liability as the only viable
theory of recovery, the Appellate Division determined that the
Lockharts had "met their initial burden [on summary judgment] by
establishing that they [had] lacked actual or constructive
knowledge that the dog had a propensity to interfere with
traffic" (id. at 1602). And, the court concluded that, "[i]n
opposition to the motion, [Dobinski] failed to raise a triable
issue of fact in that respect" (id.). We granted Dobinski leave
to appeal.
II
A
"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" (Collier v Zambito, 1 NY3d 444, 446 [2004]
[internal citation omitted]). Under this rule, a "vicious
propensity" is the "'propensity to do any act that might endanger
the safety of the persons and property of others in a given
situation,'" including behavior that is dangerous but not
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necessarily aggressive (id., quoting Dickson v McCoy, 39 NY 400,
403 [1868] [opinion of Glover, J.]).
In Bard v Jahnke (6 NY3d 592 [2006]), we expounded upon
the relationship between ordinary negligence principles and the
strict liability cause of action permitted by Collier and other
prior decisions, concluding that strict liability's traditional
status as the predominant theory of recovery for injuries caused
by a domestic animal logically forecloses recovery under a theory
of negligence. In Bard, a farm worker was left alone in the farm
owner's barn to watch the cows, but unbeknownst to the worker, a
breeding steer was among the cows; the steer attacked and injured
the worker (see Bard, 6 NY3d at 594-595). The worker sued in
strict liability and negligence, and on appeal, we rejected both
claims based on the worker's failure to demonstrate that the bull
had a known vicious propensity (see id. at 596-599).
Specifically, we held that "when harm is caused by a domestic
animal, its owner's liability is determined solely by application
of the rule articulated in Collier," for were we to allow a
plaintiff to recover upon the typically less demanding showing of
a prima facie case of negligence, we would "dilute our
traditional rule under the guise of a companion common-law cause
of action for negligence" (id. at 599).
Three Judges dissented, saying:
"Under the Restatement (Second) of Torts, the
owner of a domestic animal who does not know
or have reason to know that the animal is
more dangerous than others of its class may
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still be liable for negligently failing to
prevent the animal from inflicting an injury.
This Court today becomes the first state
court of last resort to reject the
Restatement rule. I think that is a mistake.
It leaves New York with an archaic, rigid
rule, contrary to fairness and common sense,
that will probably be eroded by ad hoc
exceptions." (id. at 599 [Smith, J.,
dissenting]).
The dissent surveyed the nineteenth century cases creating the
strict liability rule and maintained that none of them foreclosed
a negligence action, and the dissent opined that Hyland v Cobb
(252 NY 325 [1929]) and Dickson, supra, left open the possibility
of a negligence action by declaring that "'negligence by an
owner, even without knowledge concerning a domestic animal's evil
propensity, may create liability'" (Bard, 6 NY3d at 602, quoting
Hyland, 252 NY at 326-327). The dissent conceded that the
majority's rule found support in our previous affirmances of
Appellate Division decisions establishing strict liability as the
sole viable theory of liability arising from animal-related
injuries (see id., citing Kennett v Sossnitz, 260 AD 759 [1st
Dept 1940], affd 286 NY 623 [1941]; Brown v Willard, 278 AD 728
[3d Dept 1951], affd 303 NY 727 [1951]). The dissent nonetheless
found that those cases should not control the matter in light of
the Restatement's sounder rule (see id. at 602). The dissent
predicted that we would eventually have to abandon the rule or
recognize numerous unworkable exceptions to it in order to avoid
harsh results, especially in cases involving exceptionally
dangerous animal behavior directed at vulnerable or particularly
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sympathetic plaintiffs (see id. at 602-603).
We have consistently adhered to Bard in several
subsequent cases, concluding that Bard's prohibition against
negligence actions arising from harms caused by domestic animals
served to foreclose the plaintiffs' negligence claims (see
Bloomer v Schauger, 21 NY3d 917, 918 [2013]; Smith v Reilly, 17
NY3d 895, 895-896 [2011]; Petrone, 12 NY3d at 547-550; Bernstein
v Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008]). Among
those cases, Petrone and Smith have particular relevance to
plaintiffs' claims here regarding a dog owner's negligence in
failing to restrain his or her animal.
In Petrone, the plaintiff mail carrier saw that there
was no fence around the yard in front of the defendant's house,
and the defendant's Rottweiler was lying unrestrained in the yard
(see id. at 547-548). Fearful of the dog, the plaintiff started
walking away to her car, and when she turned around, she saw the
dog running after her (see id.). The plaintiff ran away and
jumped through the window of her car, injuring herself (see id.).
The dog left the defendant's property and reached the plaintiff,
but it did not harm her (see id.). The plaintiff sued the
defendant for negligence and strict liability, asserting, among
other things, that the defendant's failure to keep the dog
contained on his property, as required by the local leash law,
was proof of actionable negligence on his part (see id. at 549).
We rejected the plaintiff's claims as she failed to
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prove the defendant's prior knowledge of the dog's alleged
vicious propensity, saying, "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" (id. at 550 [internal
quotation marks and citation omitted]). Two Judges joined in a
concurring opinion, in which they stated that, while Bard was
wrongly decided, the precedential force of that decision bound
them to follow it (see id. at 551-552 [Pigott, J., concurring]
["(A)lthough I would not have joined the majority's opinion in
Bard, I must, on constraint of that decision, concur in the
majority's opinion in the present case").
In Smith, we similarly addressed an allegation of
negligent supervision of a domestic animal other than a farm
animal. There, the principal plaintiff was riding his bicycle
when the defendant's dog ran into the road and collided with the
plaintiff, propelling him over the handlebars of the bike and
injuring him (see Smith v Reilly, 83 AD3d 1492, 1493 [4th Dept
2011]). The plaintiff commenced a personal injury suit against
the defendant, pursuing strict liability and negligence theories
of recovery (see id.). A divided panel of the Appellate Division
denied the defendant's motion for summary judgment dismissing the
complaint (see id. at 1493-1494). The majority found that the
defendant's deposition testimony about her dog's tendency to
"bolt" out the door of her home had created a triable issue of
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fact as to whether her dog had known vicious propensities (id.).
The Appellate Division dissenters maintained that the plaintiff
had not raised a triable issue of fact as to vicious propensity
and that no other cause of action is available in this context
under Bard (see id. at 1494-1495 [Scudder, J.P., and Smith, J.,
dissenting]). On further appeal, we reversed the Appellate
Division's order, insisting that the plaintiff had to demonstrate
that the defendant knew of the dog's vicious propensities before
the plaintiff could recover for the injuries caused by the
defendant's failure to restrain the dog (see Smith, 17 NY3d at
895-896). Thus, as in Petrone, we concluded that only a strict
liability claim, and not a negligence cause of action, will lie
based on a pet owner's failure to confine the animal to the
owner's property or to restrain the animal from running into
another person.
Subsequently, in Hastings, we considered an unusual
variant of negligent animal control which implicated an
individual's overlapping responsibilities as an owner of farm
land and an owner of farm animals. There, the plaintiff was
driving her van and hit the defendants' cow, which had wandered
off their farm and onto the public roadway without any apparent
obstruction from the dilapidated fence around their property (see
Hastings, 21 NY3d at 124). The plaintiff and her husband filed a
complaint asserting negligence and strict liability causes of
action against the defendants, and the defendants moved for
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summary judgment on the grounds that the cow's vicious propensity
had not been shown and that negligence was not a viable theory of
liability under Bard (see id. at 125).
We unanimously decided that the defendants were not
entitled to summary judgment and "h[e]ld that the rule of Bard v
Jahnke does not bar a suit for negligence when a farm animal has
been allowed to stray from the property where it is kept" (id. at
124 [internal citation omitted]). We took care not to disturb
the Bard rule, instead explaining that the Bard line of cases
addressed claims of "aggressive or threatening behavior by an[ ]
animal" (id. at 125) -- in other words, claims that the owners of
domestic animals engaged in negligent conduct by failing to
adequately suppress the animals' harmful behavior. By contrast,
we noted, the case before us involved a claim that was
"fundamentally distinct from the claim made in Bard and similar
cases: It is that a farm animal was permitted to wander off the
property where it was kept through the negligence of the owner of
the property and the owner of the animal" (id.). In our view,
the Bard rule had no bearing on the issue of a farm owner's
negligence in failing to keep his or her farm animals on the
property, as applying the Bard rule in such circumstances would
improperly "immunize defendants who take little or no care to
keep their livestock out of the roadway or off of other people's
property" (id.). We "therefore h[e]ld that a landowner or the
owner of an animal may be liable under ordinary tort-law
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principles when a farm animal — i.e., a domestic animal as that
term is defined in Agriculture and Markets Law § 108 (7) — is
negligently allowed to stray from the property on which the
animal is kept," and hence the plaintiff had a viable negligence
claim against the defendants (id. at 126). However, we cautioned
that we were "not consider[ing] whether the same rule applies to
dogs, cats or other household pets" because "that question [had
to] await a different case" (id.).
On the same day we handed down our decision in
Hastings, we faithfully applied the Bard rule in another case,
rebuffing the plaintiff's request to overrule Bard. In Bloomer v
Schauger, supra, the plaintiff was helping the defendant to
control the defendant's distraught horse by holding the horse's
halter (see Bloomer, 21 NY3d at 918). When the defendant was in
the process of placing a lead line on the skittish animal, the
plaintiff tried to assist him, and the horse jerked its neck back
in response to the defendant's attempt to restrain it, causing
the halter ring to sever the plaintiff's finger (see id. at 918;
see also Bloomer v Schauger, 94 AD3d 1273, 1273-1274 [3d Dept
2012]; appellant's brief in Bloomer at 10-12). The plaintiff
sued the defendant on a theory of strict liability and for
negligence (see Bloomer, 94 AD3d at 1273-1274). The Appellate
Division dismissed the plaintiff's negligence claim on constraint
of Bard, and it dismissed the strict liability cause of action
based on the plaintiff's failure to show that the horse had a
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known vicious propensity (see id. at 1274-1277). One Justice
dissented, urging that because the Bard rule was "extremely
restrictive" and harsh, it should be applied narrowly in a manner
that would allow the plaintiff to recover (id. at 1277 [Garry,
J., dissenting]).
On appeal to us, the plaintiff contended that the
Appellate Division had erred in finding his showing of vicious
propensity inadequate (see appellant's brief in Bloomer at 2-3,
13-17). In the alternative, the plaintiff argued that, while the
Bard rule would ordinarily limit his ability to recover for the
defendant's alleged negligence, that rule should not bar his
negligence claim under the facts of his case. He said, "This
case is significantly different from the four cases which have
come before this Court since Collier" because "in none of the
cases that have been before this Court has the owner caused the
animal to engage in the injury[-]causing conduct" (appellant's
brief in Bloomer at 18). Thus, the plaintiff asserted that the
defendant was liable insofar as "the [defendant]'s conduct" in
placing the lead line on the horse "caused [the horse] to injure
[the plaintiff]" (appellant's brief in Bloomer at 18-19). To the
extent Bard was to the contrary, the plaintiff "respectfully
request[ed] that this Court reverse Collier and Bard and adopt
the Restatement rule to allow appellant and those injured by
domestic animals to recover under theories of common law
negligence," asserting that those cases were wrongly decided for
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the reasons stated by the Bard dissent (appellant's brief in
Bloomer at 21). The plaintiff reiterated this point in his reply
brief (see appellant's reply brief in Bloomer at 1-3).
We were unmoved by the plaintiff's requests that we
overturn Bard or permit his negligence action to proceed on the
premise that the defendant's conduct, rather than the horse's
instinctive behavior, caused the horse to injure the plaintiff.
In a memorandum decision issued on the same day as Hastings, we
unanimously affirmed the Appellate Division's order (see Bloomer,
21 NY3d at 918). Specifically, we declared:
"Under the rule of Bard v Jahnke (6 NY3d 592,
848 NE2d 463, 815 NYS2d 16 [2006]), plaintiff
cannot recover in the absence of a showing
that defendant had knowledge of the animal's
'vicious propensity' or 'propensity to do any
act that might endanger the safety of the
persons and property of others' (6 NY3d at
596-597, quoting Collier [1 NY3d at 446]).
No such showing was made here. A tendency to
shy away when a person reaches for a horse's
throat or face is, as the record shows, a
trait typical of horses. The Appellate
Division correctly held that a vicious
propensity cannot consist of 'behavior that
is normal or typical for the particular type
of animal in question' (Bloomer v Shauger, 94
AD3d 1273, 1275, 942 NYS2d 277 [2012])."
(id. at 918).
Significantly, despite that a farm animal was involved in
Bloomer, our decision there was fully consistent with both Bard
and Hastings, as Bloomer did not involve Hastings's unique
intersection of the defendant's obligations as a land owner and
his obligations as the owner of a domestic animal.
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B
Acknowledging that Bard and its progeny would otherwise
preclude them from bringing negligence causes of action against
defendants in these cases based on the injuries caused by
defendants' animals, plaintiffs in the cases at bar propose two
potential bases on which they might avoid Bard's prohibition
against negligence liability. Plaintiffs' theories are: (1) our
holding in Hastings logically extends to cover domestic pets,
such that the failure to properly restrain a dog or confine it on
the owner's property may create negligence liability; and (2)
defendants' affirmative negligent acts in using their dogs as
instrumentalities of harm created negligence liability because,
unlike in Bard and similar cases involving animals instinctively
harming others without the direct control of their owners, such
affirmative acts constitute the negligence of the owners rather
than of their pets. In their briefs, plaintiffs do not ask us to
overrule Bard, though they complain about some of its purported
shortcomings. For the reasons that follow, I reject plaintiffs'
arguments with respect to these two proposed exceptions and
conclude that the Bard rule controls.
Contrary to plaintiffs' suggestion, our decision to
impose liability on the owner of a farm animal in Hastings, based
on the owner's failure to keep the animal from wandering off his
or her property, does not logically create a negligence cause of
action for the failure to restrain a dog on one's premises or in
other locations. As we noted in Hastings itself, there is a
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"fundamental[ ] distinct[ion]" (Hastings, 21 NY3d at 125) between
a domestic animal owner's failure to prevent his or her animal
from behaving dangerously, which is generally not an actionable
form of negligence, and a farm owner's decision to allow his or
her farm animals to wander freely onto a public road or someone
else's property, which as a commonsense matter violates societal
expectations in a manner that gives rise to negligence liability.
And, Hastings's treatment of the failure to keep farm animals on
the owner's property as distinct from the negligent supervision
of other types of domestic animals makes sense. In that regard,
domestic farm animals -- horses, cows, goats, sheep, swine, ducks
and the like (see Agriculture and Markets Law § 108 [7]) --
either are difficult to train to remain on one's premises of
their own accord (e.g., cows, goats, sheep, fowl), have a
proclivity to bolt without confinement (e.g., horses) or have a
particularly hazardous combination of a large size and a habit of
extremely aggressive behavior related to establishing dominance
with respect to humans and other animals (e.g., bulls, pigs). In
recognition of the unique peril that arises from allowing farm
animals to wander off a farm unsupervised and unconfined, the
Legislature requires such animals, by statutory definition, to be
"raised in confinement" and under state license (id.).
In other words, in New York, society has long
recognized that the owners of farm animals have a duty to
exercise reasonable care in keeping such exceptionally dangerous
- 20 -
- 21 - Nos. 17 & 66
or errant creatures on the owners' premises, and in Hastings, we
recognized that duty in holding the defendant farm owner liable
for his negligent failure to confine his cow on his property.
Indeed, it is a matter of common expectation among people in
general that a 1,500-pound cow, a 400-pound pig or an unruly goat
will not be permitted to wander freely into traffic or onto a
neighbor's yard, mangling people and property alike.
By contrast, the ownership of most domesticated non-
farm animals does not naturally necessitate such a duty of care
and restraint on the part of their owners because non-farm
animals pose different risks than farm animals. Domestic pets
are more apt to stay on their owners' premises of their own
volition as a result of the domestication and training that have
been reinforced over the centuries of humanity's near-familial
relationship with its pets. And, few lawfully kept domestic
animals reach the levels of size, aggressiveness and desire to
wander that many farm animals do.
Furthermore, at least since our decision in Bard, New
York society has had no reasonable expectation that all domestic
pets will be perpetually confined in their homes or physically
restrained at all times. Pet owners often take their pets to
public places in close proximity to other people, both on leashes
and off of them depending on the location, and the people in
those areas have come to expect this phenomenon and to approach
such situations with caution. The average New Yorker knows or
- 21 -
- 22 - Nos. 17 & 66
ought to know that he or she will encounter insufficiently
restrained pets, which are not confined to the owner's premises
and may harm others depending on the disposition of the pet and
the degree of training it has received. In public parks, one
regularly encounters dog owners with their unrestrained canine
companions, whereas one almost never sees, and certainly never
expects to see, someone taking his or her cow for a walk in the
neighborhood. As Bard effectively holds, New York society has
learned to adequately mitigate the perils of unrestrained pets by
a combination of strict liability, statutory regulation and the
prudence of those who approach these animals, without adopting a
negligence cause of action based on the failure to supervise or
restrain a domestic pet. Given the clear differences in the
risks posed by farm animals and pets, there is no reason to
extend the rule of Hastings to authorize negligence liability
resulting from faulty supervision of a pet.
More fundamentally, plaintiffs' proposed expansion of
liability under Hastings would run directly counter to our
precedents, including Petrone and Smith. After all, in Petrone
we rejected a claim that negligence should lie where a dog owner
allowed his dog to stray from his property and chase a mail
carrier (see Petrone, 12 NY3d at 547-550). And in Smith, we
concluded that a dog owner's failure to restrain her dog from
running into the street and hitting a bicyclist did not give rise
to a negligence cause of action (see Smith, 17 NY3d at 895-896).
- 22 -
- 23 - Nos. 17 & 66
An extension of Hastings would clearly contradict those decisions
because, under Hastings, the owner of a farm animal may be held
liable for his or her negligence in permitting an animal to
wander unrestrained and injure people, whereas in Petrone and
Smith, we concluded that the defendants were relieved of
negligence liability for engaging in essentially the same
behavior with respect to their dogs, which were permitted to roam
about and harm others. Rather than extending Hastings to create
an inherent contradiction in our case law, I choose to harmonize
Petrone, Smith and Hastings by finding that the Hastings rule is
limited to cases involving farm animals. Thus, as the majority
observes (see majority op. at 2), the Hastings rule does not
render defendants liable in the instant cases, both of which
involve claims of negligence in the handling of domestic pets
rather than the failure to keep farm animals from wandering off
the farm.
Following the reasoning of the Appellate Division
majority in Doerr, plaintiffs in the instant cases now proclaim
that Bard and its progeny do not preclude their negligence claims
because defendants engaged in affirmative acts of control over
their pets, whereas in the Bard line of cases, the animals
injured people of their own volition after their owners failed to
restrain them. But this argument does not withstand close
scrutiny. To see the flaws in this direct-control-versus-
failure-to-restrain theory, one need only look at the Appellate
- 23 -
- 24 - Nos. 17 & 66
Division majority's attempt to apply that theory in Doerr.
In Doerr, the Appellate Division majority tried to
distinguish Bard and Petrone on the ground that defendant Smith,
unlike the defendants in those cases, affirmatively used the dog
as an instrumentality of harm by calling it to cross over the
road to her; such a case "is not about the particular actions of
an animal that led to a person's injury," the Appellate Division
majority said, but rather "is about the actions of a person that
turned an animal into an instrumentality of harm" (Doerr, 110
AD3d at 455). But, contrary to the Appellate Division's
supposition, there is no material difference between the act of
negligently failing to restrain an instrument of danger and the
act of negligently ordering such an instrument to possibly cause
harm because both forms of conduct have the same tendency to
injure others. Regardless of whether a person releases a dog to
instinctively roam near a high-traffic bicycle path or urges the
dog to cross the same path, there is some likelihood that the dog
will run into a bicyclist and injure him or her. In both
scenarios, then, the dog owner is equally capable of preventing
harm to the cyclist and equally responsible for that harm, and
consequently, the dog owner should face equal liability, or lack
thereof, for his or her negligence.
Stated differently, neither the calling of a dog across
the road nor the release of a dog near the road can cause injury
without the volitional conduct of the dog, thereby making the two
- 24 -
- 25 - Nos. 17 & 66
actions comparable for purposes of negligence law. Where the
owner calls the dog across the road, the dog still will not cross
the road and into the path of a bicyclist without instinctively
and willfully choosing to do so. If the dog ignores the owner's
call, as dogs are sometimes wont to do, no injury occurs.
Likewise, if a dog is released from restraint at the side of a
road, the dog may instinctively choose to wander into the way of
a cyclist, to do nothing, or to wander away from the road, but
only its choice, rather than the owner's act of releasing it from
its bonds, will result in any injury. In both scenarios, then,
the dog's volitional behavior ultimately creates the harm, and
the owner's act or omission does not cause the injury.
This is why, in Doerr, the Appellate Division
majority's assertion that the actions of Smith and her boyfriend
in releasing and calling the dog across the biker's path were
akin to those of a couple tossing a ball across a roadway must
fall flat (see Doerr, 110 AD3d at 455). When a person tosses a
ball, the object has no will of its own, and hence the object's
non-existent volitional behavior cannot cause any injury. The
ball can do nothing other than obey the laws of physics, and the
ball must move if the human actors carry out their wish for it to
do so. While the individuals hurling the ball may not know the
exact path it will follow, they are liable for negligence so long
as it is reasonably foreseeable that the ball's travel through
the air might place it on a collision course with another person.
- 25 -
- 26 - Nos. 17 & 66
By contrast, dogs may deem their masters' commands considerably
less compelling than the forces of acceleration and gravity. A
dog owner's call may prompt the dog not to move at all, much less
collide with someone, and therefore negligence cannot lie based
on the owner's order. This 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. With
respect to the ball-tossing scenario, the more apt analogy would
be between a person throwing a ball in someone's way and a person
tossing a small dog in someone's way, causing the dog to hit the
person regardless of its desire to avoid such a fate. Plainly,
such a case is not presented in either of these appeals.
Not only does plaintiffs' proposed distinction between
an omission of restraint and an act of control defy the practical
realities of pet behavior, but it is also inconsistent with basic
negligence principles. In that regard, the existence of
liability for negligence generally does not depend on whether the
negligent conduct of the tortfeasor is deemed an act or an
omission, but rather on whether the individual violates a common-
law duty to exercise reasonable care to prevent certain harms
(see 79 NY Jurisprudence Negligence § 10 [2d edition]; see
generally Palsgraff v Long Is. R. R. Co., 248 NY 339, 342, 344
[1928]). Because Bard does not impose a duty on a pet owner to
exercise reasonable care in the control of a pet that has no
known vicious propensity, the owner's failure to exercise such
- 26 -
- 27 - Nos. 17 & 66
care, whether by act or omission, does not furnish a basis for
liability. It is presumably for this reason that we have never
drawn the illusory act/omission distinction now urged by
plaintiffs. In fact, as discussed above, in Bloomer, we declined
the plaintiff's invitation to draw such a distinction.
One of my colleagues, who dissents in Doerr only, deems
the Appellate Division's rationale in that case "not entirely
satisfactory" (dissenting op. in Doerr at 4), yet offers a
rephrased version of the same unsatisfactory rationale, declaring
that "where a plaintiff sustains injury as the direct result of
actions that a domestic animal took under the owner's direction
and control, a cause of action in negligence should lie" (id. at
4-5). However, this proposed rule proceeds from the same
premise, and hence suffers from the same logical flaws, as the
Appellate Division's decision. Again, where an owner calls to
his or her animal, such that the animal is under the purported
"direction and control" of the owner, the owner's call still
merely sets off a "chain of events" (dissenting op. in Doerr at
4) rather than a certain and direct accident.1 Even in the face
1
To the extent the Doerr dissent's comment about a "chain
of events" (dissenting op. in Doerr at 4) is a reference to the
issue of proximate cause, that is simply beside the point here.
In this Court and the courts below, the parties in Doerr have
never framed the issue here as one of proximate cause, and as a
result, this Court cannot decide this case on that basis. More
to the point, any attempt to cast proximate cause as the sole
decisive issue in cases involving injury caused by animals must
fail because, even where there is adequate evidence that an
animal owner's conduct proximately caused an accident via his or
- 27 -
- 28 - Nos. 17 & 66
of a direct command, the animal may still decide to ignore the
instruction, follow the instruction perfectly, take the requested
action for reasons unrelated to the instruction or carry out the
requested action in an unanticipated way. Since there is no way
to know why the animal did what it did, there is no principled
basis on which to impose negligence liability.
To be sure, in Doerr, Smith seemingly attempted to
control her dog by calling to it, and the dog did decide to cross
the bike path after Smith made that call. But it does not follow
that Smith had unquestioned command of the dog, or that the dog
chose to cross the bike path at the moment of Doerr's approach as
a direct result of Smith's command. For instance, Smith's dog
might have crossed the bike path because it was attracted to the
appearance of the grass on the other side. The dog could have
completely failed to hear Smith's call over the din of a busy
park, or misunderstood the order, and yet it still ran across the
path because it was naturally inclined to run toward the area
that it saw immediately in front of it. Perhaps the dog
initially responded to Smith's call prior to Doerr's arrival on
the scene, but then decided to move at a leisurely pace,
her interaction with the animal, the owner has nonetheless not
breached any duty of care recognized under New York's law of
negligence. Indeed, our prior decisions in this area have never
turned on the lack of proof of proximate causation, and decisions
such as Bloomer denied relief to the plaintiffs in the face of
clear evidence of proximate causation because the duty element of
a negligence action was lacking.
- 28 -
- 29 - Nos. 17 & 66
lingering too long on the path to finish crossing before Doerr
arrived.
In any of these scenarios, Smith might have hoped that
the dog would choose to follow her command, but she did not know
that it would, nor did she know that the dog would fail to dodge
the oncoming bike or to otherwise proceed cautiously in response
to her command. It is true that these various possibilities are
speculative on this record, but so is the dissent's supposition
that Doerr's injury was the "direct result" of Smith's "direction
and control of the dog" (dissenting op. in Doerr at 4). The most
that can be said is that Goldsmith's release of the dog enabled
it to proceed unrestrained across the bike path, and that the dog
crossed the path after Smith called to it. Ultimately, though,
even if the dog decided to cross the path at its typical pace in
order to please Smith, that was the dog's choice. As we have
repeatedly made clear in the Bard line of cases, the dog's choice
does not result in negligence liability for the owner.
Were this analysis of Doerr not already enough to show
that plaintiffs are taking a flawed approach by advancing this
act/omission distinction, Dobinski's belated and perplexing
attempt to apply this theory to her case confirms that
plaintiffs' theory is unworkable. At oral argument before this
Court, Dobinski's counsel contended for the first time that
Milagros Lockhart's conduct in releasing the dogs onto the
exterior portions of her property 10 seconds before the accident
- 29 -
- 30 - Nos. 17 & 66
constituted an affirmative act on her part, which could support
negligence liability. At first glance, this would be a plausible
argument if one were to adopt the affirmative act theory advanced
by the Appellate Division in Doerr. When a pet owner lets a dog
outside to run near the highway, he or she plainly sets an
instrumentality of harm in motion just as much as if he or she
had called the dog to the highway. As in the case of an owner
ordering a dog to come, it is ultimately the dog's decision to
enter the roadway that causes harm to passersby, notwithstanding
that the owner has enabled or encouraged the dog's movement.
That being so, Dobinski's case stands on the same footing as
Doerr's under the act/omission distinction, and if plaintiffs
were correct, negligence would lie in both cases. Yet the
possibility that plaintiffs' theory might create negligence
liability in Dobinski shows that their proposal to distinguish
the Bard line of cases in this way would soon lead to the
abrogation of our precedent, for in Petrone and Smith, we
rejected negligence liability in situations virtually identical
to the one in Dobinski. Thus, the adoption of plaintiffs'
proposed affirmative act theory threatens to swallow Petrone and
Smith whole.
Accordingly, plaintiffs' efforts to extend the Hastings
principle to this case and to distinguish the Bard line of cases
are unavailing, and they do not assert any other grounds for
declining to apply the Bard rule to their cases. Therefore, in
- 30 -
- 31 - Nos. 17 & 66
my view, the rule of Bard controls these cases and bars
plaintiffs' negligence claims arising out of the injuries caused
by defendants' domestic pets.
Having disposed of plaintiffs' contentions, there is no
need to go further to resolve their negligence claims.
Nonetheless, I note that, while refraining from any direct attack
on the precedential force of Bard, plaintiffs make some passing
criticisms of our decision in Bard at various points in their
briefs. My colleagues, who dissent in both of the instant
appeals rather than limiting their disagreement to Doerr, urge
that we cast aside Bard (see dissenting op. in both cases at 1),
notwithstanding that even plaintiffs do not ask us to go so far.2
A response is in order.
Plaintiffs and the dissent seem to lament various
aspects of Bard. As did the Bard dissenters, the plaintiffs and
the dissent imply that Bard is inconsistent with our older case
law, such as Dickson, supra, which recognized a cause of action
for the negligent failure to restrain horses and cows (see
dissenting op. in both cases at 1-8). Citing the dissent in
2
At oral argument in this Court, Doerr's counsel, while
not asking that Bard be overruled, requested a "broader ruling"
in Doerr's favor and made references to the Restatement rule,
which may have been made in support of the contention in Doerr's
brief that the holding of Hastings should be broadened to cover
his case. Even if counsel's oral presentation could somehow be
interpreted as a belated request to overrule Bard, it would be
inappropriate for us to re-evaluate the continuing validity of a
recently reaffirmed precedent absent full briefing of the issue
from both parties and any interested amici.
- 31 -
- 32 - Nos. 17 & 66
Bard, plaintiffs note the alleged harshness of the Bard rule in
denying recovery to plaintiffs who suffer animal-related
injuries, and like the Bard dissent, plaintiffs and the dissent
point out that New York is an outlier in rejecting the sort of
negligence action endorsed by the Restatement (Second) of Torts
in this context (see dissenting op. in both cases at 8-11).
However, even if the issue of Bard's continued status
as precedent were properly before us -- and it is not -- I would
not be convinced to overturn Bard based on the very arguments
that we considered and rejected in that case. In general, we do
not cast aside precedent unless it has become unworkable,
increasingly irrational and/or increasingly unjust over time (see
People v Peque, 22 NY3d 168, 194 [2013]; Policano v Herbert, 7
NY3d 588, 604 [2006]). Here, none of those things has occurred.
No party to this litigation has suggested that the courts are
incapable of consistently applying the Bard rule. To the
contrary, even plaintiffs acknowledge that Bard provides an easy-
to-apply bright line rule that consistently proves fatal to
negligence claims arising from injuries caused by certain
animals. And, while plaintiffs claim the rule is harsh, they
point to no evidence or scholarly study indicating that the
supposed harm occasioned by Bard has increased since the issuance
of Petrone, Smith and our other decisions upholding Bard.
Indeed, the only thing that has changed since we last turned away
a challenge to the Bard rule just two years ago (see Bloomer, 21
- 32 -
- 33 - Nos. 17 & 66
NY3d at 918) is the composition of this Court, which is plainly
not an appropriate basis on which to set aside precedent (see
Peque, 22 NY3d at 194).
To be sure, plaintiffs' and the dissent's complaints
about Bard are not baseless, but the same could be said of those
criticisms when they were raised by the Bard dissent 10 years
ago. Then, as now, we had issued decisions potentially
permitting negligence actions against the owners of horses loosed
from their confines -- cases which can be squared with Bard and
Hastings to the extent they involved farm animals (see Dickson,
39 NY at 401 [opinion of Dwight, J.]; cf. id. at 402-403 [opinion
of Glover, J.]; see also Benoit v Troy & Lansingburgh R.R. Co.,
154 NY 223, 225-227 [1897]) and which, as the Bard dissent
conceded (see Bard, 6 NY3d at 601-602 [Smith, J., dissenting]),
could be read as either implicitly supporting (see Hyland, 252 NY
at 326-327) or rejecting (see Vrooman v Lawyer, 13 Johns 339, 339
[1816]; Kennett, 286 NY at 624; Brown, 303 NY at 728) the
Restatement's rule. Thus, when Bard was decided, the Court was
aware that there was some precedent to support a conclusion
different from that which it reached.
Significantly, too, and contrary to the dissent's
assertions (see dissenting op. in both cases at 1-8), the Bard
Court's evaluation of policy and precedent remains convincing.
As noted, we decided Bard consistently with older decisions such
as Dickson, which simply stand for the proposition, later
- 33 -
- 34 - Nos. 17 & 66
reaffirmed in Hastings, that the owner of a farm animal -- a
horse in Dickson -- is liable for negligently allowing such an
animal to stray onto a public roadway (see Dickson, 39 NY at 401-
403). The Bard Court remained faithful to the Dickson line of
cases insofar as those cases do not dictate that owners of
domestic animals may be sued for negligence based on other forms
of misfeasance in the handling of their animals, and pre-Bard
precedent suggests that no viable cause of action exists for
general negligence in the control or supervision of a domestic
animal (see e.g. Vrooman, 13 Johns at 339). Our post-Bard
decisions applying the Bard rule, such as Petrone and Smith, flow
logically from firmly rooted decisional law holding that
"domestic favorites such as the family dog or cat, as emblematic
of a suburban community as a cow or horse is to the standard
farm, are, as a norm, frequently allowed to romp unguarded or
unattended" because "[a]s a general proposition '[a] dog, unless
vicious, has a right in the highway, and presumably, absent
evidence of negligence, the dog's owner cannot be charged with
liability for injury caused [merely] by its presence therein'"
(Young v Wyman, 159 AD2d 792, 794-794 [1st Dept 1990] [quoting 3
NY Jur 2d, Animals, § 48, at 625-626], affd 76 NY2d 1009 [1990];
Kennett, 286 NY at 624 [affirming decision below that a dog owner
could not be liable for failing to prevent his dog from running
off his premises and knocking down the plaintiff on the
sidewalk]). Even the Restatement rule, which we rejected in
- 34 -
- 35 - Nos. 17 & 66
Bard, does not treat a domestic pet's untrammeled wanderings as
actionable negligence (see Restatement 2d of Torts § 518, comment
j). Consequently, the Bard dissent's suggestion that the Court
was ignoring its past decisions rings as hollow now as it did
then.
My colleague dissenting only in Doerr points out
that, in some unusual cases, the facts of the animal-related
injury-causing occurrence will not fit comfortably within the
confines of the vicious propensity doctrine announced in the
aforementioned precedent (see dissenting op. in Doerr at 2-5).3
As we have recognized, however, "delineation of limits of
liability in tort actions is usually determined on the basis of
considerations of public policy" (Bovsun v Sanperi, 61 NY2d 219,
228 [1984]). When Bard was decided, we concluded that the
benefits of a bright line rule limiting recovery to a theory of
strict liability outweighed the concerns of those few cases for
which application of the rule may seem unsatisfactory. That
3
Along these lines, I also reject the Doerr dissent's
suggestion that "[t]he rule of vicious propensities should have
no application here, where we are not faced with any aggressive
or menacing animal behavior" (dissenting op. in Doerr at 2). We
have held that "vicious propensity" is a term of art which
applies not only to aggressive or threatening behavior, but also
to "propensity to do any act that might endanger the safety of
the persons and property of others in a given situation"
(Collier, 1 NY3d at 446 [internal quotation marks and citation
omitted]). Accordingly, the owner of an animal does not lose the
protection of Bard's holding simply because the animal chooses to
do something dangerous, but not necessarily aggressive or
menacing.
- 35 -
- 36 - Nos. 17 & 66
determination remains reasonable today because there are
legitimate policy reasons to retain the Bard rule, including its
ability to keep liability within manageable limits, its bright
line guidance and its consistency with societal expectations. At
its heart, the Bard principle is a commonsense rule of notice.
Absent awareness of a domestic animal's previously demonstrated
tendency to harm others, the owner should not bear the costs of
the animal's instinctive decisions, notwithstanding that animals
by their nature tend to pose some risk of harm, especially when
poorly directed or left unrestrained. Notice rules such as this
are hardly oppressive or alien to our law, and they permit our
citizens to manage their affairs based on the known risks of
daily life.
Abandoning or eroding Bard's bright line rule would
harm pet owners and alter societal expectations. Pet owners and
their insurers are currently entitled to rely on the Bard rule to
plan their future conduct and their insurance needs, and changing
the rule now would risk unfairly disrupting their expectations.
Additionally, if Bard were overruled and negligence suits were
permitted to proceed against pet owners, a violation of a local
leash law may be proof of a pet owner's negligent failure to
control his or her pet, and thus negligence suits might create a
de facto private cause of action under local leash laws,
effectively ignoring the will of any local legislature that has
decided not to provide for such actions. While I acknowledge
- 36 -
- 37 - Nos. 17 & 66
that out-of-state courts that have addressed the issue have
nearly uniformly recognized a negligence cause of action arising
from the handling of all domestic animals, the same was true at
the time Bard was decided (see Bard, 6 NY3d at 600 [Smith, J.,
dissenting]), and that is not a sufficient reason to overrule our
longstanding and recently reaffirmed precedent.
At bottom, regardless of our individual positions on
the Bard rule, we should not revisit our adoption and consistent
retention of the rule today, as neither plaintiffs' jabs at Bard
nor the dissent's concerns are sufficiently weighty to overcome
critical considerations of stare decisis. A state's highest
court is, first and foremost, charged with creating a coherent
body of settled law by which members of society may order their
affairs. This mission inevitably reflects the policy choices of
predecessor judges that decide an issue and thereby create a
precedent, and is inevitably undermined if successor judges
succumb to the very human impulse to cast aside or chip away at
those rulings with which they simply disagree. Indeed,
plaintiffs' veiled criticisms of Bard call to mind a variation of
an observation made by the author of the Bard dissent in a
different context: "Essentially this argument [for rejecting the
current rule] has been ably made by three dissenting Judges [and
two concurring Judges] in two of our prior cases" in Bard and
Petrone, "[b]ut I respectfully suggest that, at this late date,
the question should be considered settled" (People v Giles, 24
- 37 -
- 38 - Nos. 17 & 66
NY3d 1066, 1073 [2014] [Smith, J., concurring]). Under our
precedent, plaintiffs' negligence claims must fail because the
particular exceptions to the Bard rule proposed by plaintiffs are
incompatible with Bard and its progeny. Having been presented
with no alternative theory of recovery, I neither reject nor
endorse any other potential legal theory or exception to the Bard
rule not advanced by the parties in these cases.4
C
In Dobinski, plaintiff Dobinski pleaded a strict
liability cause of action in addition to her negligence claim.
However, as the majority rightly concludes (see majority op. at
2-3), Dobinski cannot proceed on her strict liability claim on
this record because she did not sufficiently demonstrate that the
Lockharts were aware that their dogs had a propensity to run into
the road and pursue bicyclists. In their motion papers and
depositions, the Lockharts stated, without contradiction, that
they had never known their dogs to run into the road or approach
bicyclists, and their neighbor confirmed that the dogs had no
known tendency to interfere with traffic. Thus, the Lockharts
carried their initial burden on summary judgment of showing that
they did not know of any vicious propensities of their dogs.
4
Likewise, because plaintiffs in these cases did not
allege that defendants committed any intentional or reckless
torts, I do not opine on whether the owner of a domestic animal
may be held liable for supervision of an animal undertaken with
the intent to cause harm to another or with conscious disregard
of a known and unjustifiable risk of harm to another.
- 38 -
- 39 - Nos. 17 & 66
In response, Dobinski failed to create a triable issue
of fact by showing that the Lockharts had notice of the dogs'
proclivity to harm others. Although Dobinski argues that the
Lockharts trained the dogs to run after vehicles at high speed,
the record shows that George Lockhart merely prompted the dogs to
follow his four-wheeler from time to time at a slow pace for
exercise purposes, and there is no evidence that the Lockharts
trained their dogs to generally chase vehicles, including
bicycles, outside their farm land or to chase vehicles at a high
rate of speed. Nor does it matter that, in separate incidents
before and after Dobinski's accident, the Lockharts' other dogs
had run into the road, as those dogs' propensities cannot
demonstrate that the entirely different dogs at issue here had a
tendency to harm others. Likewise, even if one were to assume
that the Lockharts violated the local leash law, such a violation
would only be some proof of negligence and could not establish
strict liability (see Petrone, 12 NY3d at 550). In the face of
the Lockharts' deposition testimony and allegations, Dobinski
raised no triable factual dispute about the Lockharts' knowledge
of their dogs' propensities, and the Appellate Division properly
granted the Lockharts summary judgment on that issue (see Smith,
17 NY3d at 896; see generally Jacobsen v New York City Health and
Hospitals Corp., 22 NY3d 824, 833 [2014]). I further reject
Dobinski's claim that the Lockharts were liable for their alleged
negligence in creating a dangerous condition on their premises
- 39 -
- 40 - Nos. 17 & 66
and on the roadway by mishandling their dogs.
III
Based on the foregoing observations, in Doerr, I vote
to reverse the order of the Appellate Division, grant defendant
Smith's motion for summary judgment dismissing the complaint and
answer the certified question in the negative. In Dobinski, I
vote to affirm the order of the Appellate Division.
- 40 -
Wolfgang Doerr v Daniel Goldsmith and Julie Smith
No. 17
Cheryl Dobinski v George O. Lockhart and Milagros Lockhart
No. 66
LIPPMAN, Chief Judge (dissenting in case no. 17 and concurring in
case no. 66):
In Hastings v Sauve (21 NY3d 122 [2013]), we held that
the "vicious propensities" rule the Court had announced in Bard v
Jahnke (6 NY3d 592 [2005]) was inapplicable to the situation
created when a large farm animal was permitted to wander into a
public roadway. I would conclude that the vicious propensities
rule is similarly inapplicable to this case and that a cause of
action can be maintained against defendant dog owner for her
negligence.
As we observed in Hastings, Bard had adhered to the
traditional vicious propensities rule, which requires a plaintiff
to demonstrate that an owner had knowledge that the animal's
behavior "reflect[ed] a proclivity to act in a way that puts
others at risk of harm" (21 NY3d at 125 [internal quotation marks
and citations omitted]). We further noted that our "vicious
propensities" line of cases following Bard involved situations
where the plaintiff had been bitten or somehow menaced by a dog
(see Petrone v Fernandez, 12 NY3d 546 [2009] [plaintiff chased by
dog]; Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008]
[plaintiff bitten by dog]; see also Smith v Reilly, 17 NY3d 895
- 1 -
- 2 - Nos. 17 & 66
[2011] [dog ran into the road and collided with plaintiff's
bicycle]).
To the contrary, the fact pattern in Hastings did "not
involve aggressive or threatening behavior by any animal" and we
viewed its claim -- that both the owner of the cow and the owner
of the property were negligent in allowing it to wander away --
as "fundamentally distinct" from the claims made in the Bard line
of cases (see Hastings, 21 NY3d at 125). We held that to apply
the Bard vicious propensities rule "in a case like this would be
to immunize defendants who take little or no care to keep their
livestock out of the roadway or off of other people's property"
(Hastings, 21 NY3d at 125).
Although the situation presented in Doerr is
distinguishable from Hastings, in fundamental respects they are
the same. The rule of vicious propensities should have no
application here, where we are not faced with any aggressive or
menacing animal behavior -- quite the opposite, since defendant's
dog allegedly did exactly as she was told (see e.g. Bloomer v
Shauger, 21 NY3d 917, 918 [2013] ["a vicious propensity cannot
consist of 'behavior that is normal or typical for the particular
type of animal in question'"]). Moreover, application of the
rule in this instance would serve only to immunize defendant from
the consequences of her own negligent actions, for no reason
other than that a dog happened to be involved in the accident.
I would continue to adhere to the vicious propensities
- 2 -
- 3 - Nos. 17 & 66
rule where it appropriately applies, which would appear to be the
great majority of cases involving injuries caused by domestic
animals. Indeed, as noted above, we have reaffirmed that holding
several times in the recent past. The rule reflects a policy
decision that a pet owner is not required to anticipate and take
steps to prevent aberrational, dangerous behavior from an
apparently benign animal. For example, an owner will not be
liable the first time a rambunctious dog welcoming a guest knocks
him down the steps. Thus, in Dobinski, the absence of evidence
that the defendants were aware their dogs had a penchant for
running into the road dooms the plaintiff's case.
The situation presented by Doerr, however, is distinct.
Defendant did in fact control her dog, but allegedly was
negligent in directing it into the path of the oncoming bicycle.
The concurring opinion emphasizes a dog's "volitional behavior"
(concurring op. at 27) and I think we can all agree that a dog is
not analogous to an inanimate object, as it has agency of its
own. But people expend significant amounts of time and effort,
and sometimes go to great expense, in an effort to train their
dogs to be obedient. When those efforts are successful and the
dog acts according to the owner's command, that is not a vicious
propensity, but should not necessarily result in the owner's
immunity from liability. As we recognized in Hastings, the
vicious propensity rule does not cover every situation. By
contrast to the above example of nonactionable canine greeting,
- 3 -
- 4 - Nos. 17 & 66
were the owner to throw a ball towards the steps as the guest
ascends and the dog's inevitable chase propels the guest
downward, it is clear to me that the owner's far greater
culpability in the latter disaster should compel the availability
of a recovery in negligence. I would place Doerr squarely in
that category as well.
The rationale proffered by the Appellate Division below
-- that defendant should be held liable because her actions
turned the dog into an instrumentality of harm -- is not entirely
satisfactory, as it could potentially encompass a much broader
range of owner conduct. For instance, the owner in Dobinski
could be seen as having launched an instrumentality of harm by
letting her dogs run outside unleashed, thereby creating the
opportunity for them to enter the road and injure the plaintiff.
But there is a difference between setting in motion a chain of
events, in the course of which an animal acts in a way that
eventually injures someone, and directing the animal to engage in
conduct that causes direct and immediate harm. In the first
situation, the vicious propensities rule applies to the animal's
dangerous behavior. In the second, the fault should be
attributed to the owner.
I would hold that, where a plaintiff sustains injury as
the direct result of actions that a domestic animal took under
the owner's direction and control, a cause of action in
negligence should lie. An exception to the vicious propensities
- 4 -
- 5 - Nos. 17 & 66
rule is warranted under these circumstances. Indeed, a contrary
rule automatically immunizing animal owners from the consequences
of their own directions is too broad brush, as this situation is
plainly distinguishable from our existing vicious propensities
jurisprudence and contradicts any sensible logic.
- 5 -
Wolfgang Doerr v Daniel Goldsmith and Julie Smith
No. 17
Cheryl Dobinski v George O. Lockhart and Milagros Lockhart
No. 66
FAHEY, J. (dissenting):
In 2006, in Bard v Jahnke (6 NY3d 592), this Court
revised tort law in New York by holding that injuries caused by a
domestic animal are not actionable on a negligence theory. I
believe that Bard was wrongly decided and I would overrule it.
In departing from a recent precedent it is important to answer
the question: why change? Bard conflicts with prior, more
coherent and sound doctrine. It invites many questions, and has
provoked a demand for the creation of ad hoc exceptions, making a
compelling justification for overruling it. I would take that
step now and declare that the decision should no longer be
followed. We should return to the basic principle that the owner
of an animal may be liable for failure to exercise the standard
of care that a reasonably prudent person would have exercised in
a similar situation. I cannot join the Court's memorandum
opinion and I disagree with the analysis put forward in the
concurring opinion (see concurring op of Abdus-Salaam, J.).
Accordingly, I dissent.
- 1 -
- 2 - Nos. 17 & 66
I.
Before Bard was decided, our Court's decisions were
consistent with the rule, set out in the Restatement (Second) of
Torts § 518, that a plaintiff whose injuries were caused by a
domestic animal may bring a negligence claim against the owner,
as an alternative to an allegation that the owner is strictly
liable.
Our precedents are illuminating. In Hyland v Cobb (252
NY 325 [1929]), we stated that "negligence by an owner, even
without knowledge concerning a domestic animal's [dangerous]
propensity, may create liability" (Hyland, 252 NY at 326-327,
citing Dickson v McCoy, 39 NY 400 [1868]). The Restatement
principle, similarly, is that "one who possesses or harbors a
domestic animal that he does not know or have reason to know to
be abnormally dangerous, is subject to liability for harm done by
the animal if, but only if . . . he is negligent in failing to
prevent the harm" (Restatement [Second] of Torts § 518 [b]
[1977]).1
1
The Restatement (Third) of Torts preserves the doctrine:
"Many animals, while lacking the element of abnormal
danger that justifies strict liability, still involve
some level of risk, especially when the animal is
brought into various societal settings. In light of
that risk, the animal owner can potentially be held
liable under the . . . negligence standard for physical
or emotional harms . . . Thus, the owner of a horse
who takes the horse into a city street can foresee all
kinds of ways in which the horse, if not attended to,
might respond to the instincts common to horses and in
doing so bring about an injury. For example, if
- 2 -
- 3 - Nos. 17 & 66
In Dickson, decided in 1868, the defendant's horse,
which was allowed to roam on a public street, kicked a 10-year-
old child in the face. The horse was young and playful, rather
than vicious in nature, but this Court deemed an allegation of
harmful propensities to be unnecessary (see Dickson, 39 NY at
401) and affirmed the trial court's judgment premised on a
negligence-based jury verdict in the plaintiff's favor (see id.
at 403). This Court continued to assume that injuries caused by
a domestic animal are actionable on a negligence theory in
subsequent decisions including Unger v Forty-Second St. & Grand
St. Ferry R.R. Co. (51 NY 497, 500 [1873] [noting that "[a]
person driving horses through a street . . . is bound to exercise
that reasonable degree of diligence and care which a man of
frightened the horse might bolt and injure a person
standing nearby. Accordingly, the owner can be found
negligent for not properly restraining the horse.
Similarly, the friskiness of dogs can create a variety
of risks that the possessor of the dog, under
negligence law, should make reasonable efforts to
control. The dog's possessor might be aware that
children are playing with the dog in a way that might
induce in the dog a harm-causing response. If so, the
owner can be found negligent for not making a
reasonable effort to intervene. The mere fact that a
dog approaches people in a somewhat threatening way
ordinarily does not suffice to show that the dog is
abnormally dangerous. However, depending on the
circumstances, it may be foreseeable that a frightened
person will suffer injury while attempting rapidly to
retreat. When this is foreseeable, the negligence
standard may require certain precautions on the part of
the owner." (Restatement [Third] of Torts: Liability
for Physical and Emotional Harm § 23, Comment i:
Negligence liability [2010].)
- 3 -
- 4 - Nos. 17 & 66
ordinary prudence and capacity might be expected to exercise
under the same circumstances"]; Hyland, 252 NY at 326-327; and
more recently, Young v Wyman (76 NY2d 1009, 1010 [1990] [holding
that "the mere presence of an unrestrained dog on the street does
not give rise to a presumption of negligence on the part of its
owner" but not questioning the propriety of a negligence cause of
action when based on sound evidence]).
In Collier v Zambito (1 NY3d 444 [2004]), defendants'
dog bit a 12-year-old guest in defendants' home. The plaintiff
did not assert negligence liability, but rather that defendants
knew or should have known of the dog's vicious propensities.
This Court noted that a domestic animal that "reflects a
proclivity to act in a way that puts others at risk of harm, can
be found to have vicious propensities" even if its prior behavior
"would not necessarily be considered dangerous or ferocious" (id.
at 447), but held that plaintiff Collier did not raise an issue
of fact concerning the defendants' knowledge of the animal's
harmful propensities (see id. at 447-448). The Court had no
occasion in Collier to consider whether an owner who does not
know his or her animal's harmful propensities can be liable for
negligence.
At the time Bard was decided, three of the Departments
of the Appellate Division recognized that a negligence claim for
animal-induced injuries could be brought as an alternative to a
strict liability claim.
- 4 -
- 5 - Nos. 17 & 66
The First Department held that "in certain limited
circumstances, claims of injury caused by animals may be based
upon a theory of negligence rather than upon the strict liability
resulting from the vicious propensity rule" (Schwartz v Armand
Erpf Estate, 255 AD2d 35, 38 [1st Dept 1999], lv dismissed 94
NY2d 796 [1999]), noting that "[i]n a number of other
jurisdictions, the strict liability rule of vicious propensity is
viewed as co-existing with certain types of claims alleging
negligence in the care and maintenance of an animal that causes
damage" (id. at 37). The Schwartz court held that
"when young children are known to be present,
the landowner's normal duty, i.e., to
maintain its premises in a reasonably safe
condition in view of all the circumstances,
includes a duty to recognize the danger
created by the presence of horses to which a
small child could easily gain access, which
danger, although obvious to adults, may not
be appreciated by children. This duty may be
satisfied in a number of ways: one might
involve modifying the dangers presented by
altering or adding to the fencing; another
might involve appropriately warning the
children of the risk" (Schwartz, 255 AD2d at
40 [citation omitted]).
The Second Department assumed the existence of
negligence claims for animal-induced injuries in St. Germain v
Dutchess County Agric. Socy. (274 AD2d 146 [2d Dept 2000]),
holding that the plaintiffs demonstrated a triable issue of fact
as to negligence, when the defendants walked a 1000-pound heifer,
not known to have vicious propensities, "along the same path used
by fairgoers when they knew or should have known that heifers are
- 5 -
- 6 - Nos. 17 & 66
generally at risk to be 'spooked' and bolt from their handler"
(St. Germain, 274 AD2d at 149-150). Similarly, in Colarusso v
Dunne (286 AD2d 37 [2d Dept 2001]), the Second Department cited
our decision in Hyland for the proposition that "where the
conduct at issue, although not vicious, results in
reasonably-foreseeable injury, the courts have recognized a right
to recover for common-law negligence" (Colarusso, 286 AD2d at
39). In Colarusso, a three-year-old child hugged a dog owned by
the child's day-care provider, and the dog bit the child just as
the provider was calling out to him to leave the dog alone. The
Second Department held that a jury might charge "[t]he
defendants, as providers of day care services . . . with the
knowledge that a young child such as the plaintiff may interact
with a dog in a fearless manner that befits a child's lack of
capacity to fully understand the foreseeable consequences of such
conduct; that is, that such conduct may be injurious or
threatening to the dog and, if so, that the dog, even a docile
and well-trained one, may instinctively engage in defensive
action such as biting" (id. at 40).
The Third Department, similarly, "recognized that, in
some circumstances, a plaintiff who sustains injury due to the
conduct of an unrestrained dog may pursue a negligence claim
predicated on a defendant's failure to comply with a local animal
control ordinance" (McKee v J&J Otsego Props., 277 AD2d 787, 788
[3d Dept 2000], lv denied 96 NY2d 705 [2001], citing Clo v
- 6 -
- 7 - Nos. 17 & 66
McDermott, 239 AD2d 4, 6 [3d Dept 1998]; see Lecznar v Sanford,
265 AD2d 728, 729 [3d Dept 1999]; Sorel v Iacobucci, 221 AD2d 852
[3d Dept 1995]). Clo is representative. There, the plaintiff
was riding a bicycle along a public road when the defendants' dog
ran out in front of him, striking the bicycle and injuring the
plaintiff. The Third Department ruled that a triable issue of
fact existed "as to whether defendants violated the Town's animal
control ordinance" and whether any such violation "constitute[d]
some evidence of defendants' negligence" (Clo, 239 AD2d at 6).
As the Third Department later summarized its position, there are
exceptions "under certain limited circumstances" to the rule that
"absent a showing of vicious propensities, a plaintiff may not
recover for injuries sustained in an attack by a dog" (Shaw v
Burgess, 303 AD2d 857, 859 [3d Dept 2003]).
At the time Bard was decided, only the Fourth
Department adhered to a rigid rule that liability for animal-
induced injuries "is not dependent upon proof of negligence in
the manner of keeping or confining the animal, but is predicated
upon the owner's keeping of the animal, despite his [or her]
knowledge of the animal's vicious propensities" (Plennert v Abel,
269 AD2d 796, 796 [4th Dept 2000]; see Smith v Farner, 229 AD2d
1017, 1018 [4th Dept 1996]). Yet even the Fourth Department had
not consistently rejected negligence claims in connection with
domestic animals (see e.g. Laylon v Shaver, 187 AD2d 983 [4th
Dept 1992]).
- 7 -
- 8 - Nos. 17 & 66
Based on the cases summarized above, the law in New
York, before Bard was decided, may be distilled as follows. If
you were injured by a dog and you believed the owner had been
negligent in the manner he or she trained, restrained, or
otherwise kept the dog, you could bring a cause of action in
negligence, in addition to a strict liability claim. If you
could prove that the owner had reason to believe the dog, as an
individual animal, had harmful propensities, you could prevail on
the strict liability theory, without having to show negligence.
However, where there was no evidence that the owner knew or
should have known of the dog's harmful propensities but the
owner's failure to restrain the dog breached a duty of care to a
foreseeable plaintiff, you could, instead, prevail on a
negligence theory. Such a duty of care would exist, for example,
when a reasonably prudent person would recognize a duty to a
person (whether a child, a fairgoer, or a bicyclist) who is
likely not to appreciate, or not to be able to avoid, a
particular risk posed by an animal. The law in New York was
consistent with the Restatement (Second) of Torts § 518.
II.
As the Supreme Court of Connecticut recently noted, "a
large majority of the jurisdictions that have considered the
issue have adopted the approach . . . taken by § 518 of the
Restatement (Second) of Torts" (Vendrella v Astriab Family Ltd.
P’ship, 311 Conn 301, 326-327 [2014]; see id. at 327 n 22). The
- 8 -
- 9 - Nos. 17 & 66
Connecticut court cited Humphries v Rice (600 So 2d 975, 978 [Ala
1992]); Vigue v Noyes (113 Ariz 237, 240 [1976]); Van Houten v
Pritchard (315 Ark. 688, 692 [1994]); Drake v Dean (15 Cal App 4th
915, 929 [1993]); Taft v Taft (209 Ga App 499, 500 [1993]);
Farrior v Payton (57 Haw 620, 630 [1977]); Ross v Lowe (619 NE2d
911, 914 [Ind 1993]); Gardner v Koenig (188 Kan 135, 138 [1961]);
Baker v McIntosh (132 S.W.3d 230, 232 [Ky App 2004]); Moura v
Randall (119 Md App 632, 646, cert denied, 349 Md 495 [1998]);
Trager v Thor (445 Mich. 95, 104-105 [1994]); Duren v Kunkel (814
S.W.2d 935, 938-39 [Mo 1991]); Huber v Timmons (184 Neb 718, 722
[1969]); De Robertis v Randazzo (94 NJ 144, 156 [1983]); Smith v
Ruidoso (128 NM 470, 477 [1999]); Griner v Smith (43 NC App 400,
407 [1979]); Westberry v Blackwell (282 Or 129, 133 [1978]);
Sybesma v Sybesma (534 NW2d 355, 358 [SD 1995]); Dunnings v
Castro (881 S.W.2d 559, 563 [Tex App 1994]); Arnold v Laird (94 Wash.
2d 867, 871 [1980]); Jividen v Law (194 W Va 705, 712 [1995]);
Nelson v Hansen (10 Wis 2d 107, 113-114 [1960]); and Borns ex
rel. Gannon v Voss (70 P3d 262, 270 [Wy 2003]).2
The Connecticut Supreme Court adopted the Restatement
position and held, as a matter of first impression, that " 'one
who possesses or harbors a domestic animal that he does not know
or have reason to know to be abnormally dangerous, is subject to
liability for harm done by the animal if, but only if . . . he is
2
For the opposite proposition, the Connecticut Supreme
Court cited only two cases: our decision in Bard and Searcy v
Brown (607 S.W.2d 937, 941 [Tex Civ App 1980]).
- 9 -
- 10 - Nos. 17 & 66
negligent in failing to prevent the harm' . . . regardless of
whether the animal was roaming at large" (Vendrella, 311 Conn at
330, quoting Restatement [Second] of Torts § 518 [b]). The court
reasoned that "[t]o conclude otherwise would undermine the policy
considerations governing our tort system which include
compensation of innocent parties, shifting the loss to
responsible parties or distributing it among appropriate
entities, and deterrence of wrongful conduct" (Vendrella, 311
Conn at 330 [internal punctuation omitted]).
To the Connecticut Supreme Court's lengthy catalog of
decisions recognizing negligence actions for animal-induced
injuries, as listed above, I would add the following rulings:
Swerdferger v Krueger (358 P2d 479, 481 [Colo 1960]); Richmond v
Knowles (265 A2d 53, 55 [Del Super Ct 1970]); Jackman v Hamersley
(240 P2d 829, 830-831 [Idaho 1952]); Whitcanock v Nelson (400
NE2d 998, 1002 [Ill App 1980], overruled on other grounds, as
stated in People v Lyles [217 Ill 2d 210, 217 (2005)]); Klobnak v
Wildwood Hills, Inc. (688 NW2d 799, 801-803 [Iowa 2004]); Henry v
Brown (495 A2d 324, 327 [Me 1985]); Saldi v Brighton Stock Yard
Co. (181 NE2d 687 [Mass 1962]); Ryman v Alt (266 NW2d 504, 508
[Minn 1978]); Ladnier v Hester (98 So 3d 1025, 1028-1029 [Miss
2012]); Hansen v Brogan (400 P2d 265, 267-268 [Mont 1965]);
Sendelbach v Grad (246 NW2d 496, 501 [ND 1976]); and Stout v
Bartholomew (544 SE2d 653, 658-659 [Va 2001]). In all, some 35
states expressly recognize negligence as a distinct, alternative
- 10 -
- 11 - Nos. 17 & 66
theory for animal-induced injuries, of which 18 expressly adopt
or approvingly cite the Restatement (Second) of Torts § 518.
Other than New York, none of the remaining 15 states has
expressly rejected the Restatement approach. When Bard was
published, New York became " 'the only state in the nation that
rejects the rule set forth in the Restatement (Second) of Torts'
regarding an owner's negligence as a ground for liability arising
from the dangerous acts of animals" (Bloomer v Shauger, 94 AD3d
1273, 1277 [3d Dept 2012], affd 21 NY3d 917 [2013] [Garry, J.,
dissenting], quoting Miner, Outside Counsel, When Animals Attack
in New York, NYLJ, Feb. 28, 2012, at 4, col 1).
This review of the law of other jurisdictions
identifies New York as a unique outlier in its rejection of the
Restatement (Second) of Torts § 518.
III.
In Bard, the plaintiff was injured by a bull that was
permitted to roam freely around a dairy barn in order to
impregnate cows. The defendant farm owner, Jahnke, had not
mentioned the bull's presence to plaintiff Bard, a carpenter who
was doing repairs in the barn. Bard submitted the affidavit of
an animal science expert, who opined that "bulls, in particular
breeding bulls, are generally dangerous and vicious animals," and
that the farm owner should have either restrained the bull or
warned Bard of its presence. However, the bull himself had
concededly never before threatened or injured any farm animal or
- 11 -
- 12 - Nos. 17 & 66
any human being. The Court first held that Bard could not
recover under strict liability because the bull "had never acted
in a way that put others at risk of harm" (Bard, 6 NY3d at 597,
citing Collier, 1 NY3d at 447).
Then the Court considered plaintiff Bard's alternative
theory, premised on negligence, that, because the animal was a
breeding bull housed with a herd over which he exercised
dominance, Jahnke was negligent in failing to restrain the bull
or warn strangers of his presence. Plaintiff Bard had relied on
the Restatement (Second) of Torts § 518. More particularly, Bard
had relied on two comments in this section of the Restatement.
The first, "Knowledge of normal characteristics," notes that
"[i]n determining the care that the keeper of a not abnormally
dangerous domestic animal is required to exercise to keep it
under control, the characteristics that are normal to its class
are decisive, and one who keeps the animal is required to know
the characteristics" (Restatement [Second] of Torts § 518 Comment
g). The second, "Animals dangerous under particular
circumstances," provides that one who keeps a domestic animal is
"required to realize that even ordinarily gentle animals are
likely to be dangerous under particular circumstances and to
exercise reasonable care to prevent foreseeable harm"
(Restatement [Second] of Torts § 518 Comment h).
The Court rejected Bard's reliance on the comments to
the Restatement, on the ground that his theory was "no different
- 12 -
- 13 - Nos. 17 & 66
from arguing that Jahnke was negligent in that he should have
known of Fred's vicious propensities" (Bard, 6 NY3d at 598-599).
The Court observed that it had never accepted such a theory of
imputed or constructive knowledge of vicious propensity:
"We have never . . . held that particular
breeds or kinds of domestic animals are
dangerous, and therefore when an individual
animal of the breed or kind causes harm, its
owner is charged with knowledge of vicious
propensities. Similarly, we have never held
that male domestic animals kept for breeding
or female domestic animals caring for their
young are dangerous as a class" (id. at 599).
Finally, the Court concluded the Bard decision by writing: "In
sum, when harm is caused by a domestic animal, its owner's
liability is determined solely by application of the rule
articulated in Collier" (id.).
The Collier rule, quoted earlier in the Bard opinion,
is "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" (id. at 596-597, quoting Collier, 1 NY3d at 446).
Taken in context, a reader would naturally interpret the
concluding sentence of Bard to mean that if a plaintiff alleges
that a defendant either knew or should have known of his or her
domestic animal's harmful propensities, the plaintiff must show
the defendant's knowledge of the individual animal's harmful
propensities, not merely the dangerous propensities of its breed
or class. On this view, the Court was simply rejecting Bard's
- 13 -
- 14 - Nos. 17 & 66
appeal to the Restatement (Second) of Torts § 518 Comments g and
h, and their theory of imputed knowledge. However, it is clear
that the Bard Court intended a much more restrictive meaning. As
the dissenting Judges saw it, the majority adopted the rule "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" (Bard, 6 NY3d at 601
[R. S. Smith, J., dissenting] [emphasis added]). That is the
legacy of the Bard decision. The Bard Court reached this
significant transformation of the law without any discussion of
policy ramifications or history of prior, apposite jurisprudence.
Bard cited only Collier, a decision that did not mention a common
law negligence cause of action because the plaintiff had not
asserted one.
IV.
Less than two years later, the Court reiterated that
"[i]n Bard v Jahnke . . ., we held that 'when harm is caused by a
domestic animal, its owner's liability is determined solely by
application of the rule articulated in Collier' " (Bernstein v
Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008], quoting Bard,
6 NY3d at 599). In Bernstein, the eight-year-old plaintiff
visited a toy store and went over to pet the defendant owner's
dog. The defendant told the child's adult care-giver that the
dog was friendly, and the child scratched the dog behind his ear,
- 14 -
- 15 - Nos. 17 & 66
patted his back, hugged him, and kissed him. Suddenly, the dog
growled and bit the child's right cheek, once, causing
disfiguring injury. The Bernstein plaintiffs conceded that there
was no evidence of vicious propensities on the dog's part, but
contended that the defendants owed an enhanced duty toward the
eight-year-old plaintiff because the presence and actions of
children on the toy store premises was reasonably foreseeable.
This Court upheld the dismissal of the complaint in a terse
Memorandum Opinion, casting the plaintiffs' negligence cause of
action aside entirely, on the basis that Bard proscribed such
claims, and dismissing the complaint because there was no
evidence that the dog's "owner had any knowledge of its vicious
propensities" (Bernstein, 10 NY3d at 788).
It is a measure of the degree to which this Court's
holding in Bard was questioned that, even after Bernstein, the
Appellate Division could not bring itself to accept that Bard
stood for the proposition "that a defendant's prior notice of
'vicious propensities' is an absolute sine qua non to civil
liability in all actions involving personal injuries caused by
domestic animals" (Petrone v Fernandez, 53 AD3d 221, 228 [2d Dept
2008]). In Petrone, the plaintiff, a mail carrier, was on a
public street, approaching a house to deliver the mail, when she
noticed a rottweiler lying on the lawn of the unfenced property.
The dog was not restrained in any way. As she was walking back
to her car, the plaintiff turned to look at the dog and saw that
- 15 -
- 16 - Nos. 17 & 66
it was running toward her. She began to flee, and was injured as
she threw herself into her vehicle through an open window.
Plaintiff Petrone brought a common law negligence claim, alleging
that the defendant owner violated New York City Health Code §
161.05 (a) (24 RCNY 161.05 [a] [requiring dog owners to restrain
dogs in public places]) and as a result was negligent in allowing
the rottweiler to chase the plaintiff on a public street. The
Appellate Division declined to apply Bard, noting that Bard and
Collier were not concerned with, "and did not need to address,
the question of whether negligence involving the violation of a
leash law can result in liability when an unleashed dog engages
in a chase that proximately causes injury" (Petrone, 53 AD3d at
228). The Appellate Division reinstated the plaintiff's common
law negligence claim, holding that the owner of a dog may be
liable in negligence based on violation of a local leash law, in
a case where strict liability based on vicious propensities is
not alleged.
This Court reversed in Petrone, invoking the Bard
dissent's description of the Bard rule as being "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" (Petrone v Fernandez, 12 NY3d 546,
550 [2009], quoting Bard, 6 NY3d at 601 [R. S. Smith, J.,
dissenting]). Like Bard and Bernstein, Petrone is devoid of
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- 17 - Nos. 17 & 66
analysis of any policy grounds or prior precedents supporting
Bard's revision of the law. Also striking is that two Judges of
this Court believed strongly enough that Bard had been wrongly
decided that the one wrote, and the other joined, a concurring
opinion, emphasizing that they were constrained by Bard's holding
but vigorously disagreed with it (see Petrone, 12 NY3d at 551-552
[Pigott, J., concurring]).
More recently, this Court reviewed a case that tested
the limits of its restrictive holding on actions alleging
negligence by an animal owner. In Hastings v Sauve (21 NY3d 122
[2013]), plaintiff Hastings was driving on a rural road in
Franklin County when she struck a cow, which had strayed from a
pasture, owned by defendant Sauve, immediately adjacent to the
road. The pasture was surrounded by a wire fence that was in
disrepair. Hastings alleged that Sauve was negligent in failing
to control the cow and allowing it to enter the roadway. The
Appellate Division upheld Supreme Court's dismissal of the
plaintiff's complaint against Sauve and another defendant, but
expressed its discomfort with Bard at length.
"While we are obligated to affirm Supreme
Court's dismissal . . . , we must note our
discomfort with this 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 household
pet. The need to maintain control over such
a large animal is obvious, and the risk that
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exists if it is allowed to roam unattended
onto a public street is self-evident and not
created because the animal has a vicious or
abnormal propensity. Here, plaintiff was
injured not because the cow was vicious or
abnormal, but because defendants allegedly
failed to keep it confined on farm property
and, instead, allowed it to wander unattended
onto the adjacent highway in the middle of
the night, causing this accident. The
existence of any abnormal or vicious
propensity played no role in this accident,
yet, under the law as it now exists,
defendants' legal responsibility for what
happened is totally dependent upon it. For
this reason, we believe in this limited
circumstance, traditional rules of negligence
should apply to determine the legal
responsibility of the animal's owner for
damages it may have caused. However, it is
not for this Court to alter this rule and,
while it is in place, we are obligated to
enforce it." (Hastings v Sauve, 94 AD3d
1171, 1173 [3d Dept 2012].)
This Court reversed, holding that Bard "does not bar a
suit for negligence when a farm animal has been allowed to stray
from the property where it is kept" (Hastings, 21 NY3d at 124).
The difference, the Court now suggested, is that Bard and its
progeny had "involve[d] aggressive or threatening behavior by
an[] animal," whereas Hastings involved a claim "that a farm
animal was permitted to wander off the property where it was kept
through . . . negligence" (id. at 125). "To apply the rule of
Bard — that 'when harm is caused by a domestic animal, its
owner's liability is determined solely' by the vicious propensity
rule — in a case like this would be to immunize defendants who
take little or no care to keep their livestock out of the roadway
or off of other people's property" (id., quoting Bard, 6 NY3d at
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- 19 - Nos. 17 & 66
599 [citation omitted]). In other words, the Court of Appeals
now held that when the Bard Court used the word "solely," it did
not mean "solely," and the Court created an ad hoc exception to
Bard, for farm animals that stray. The prediction of the Bard
dissenters that the decision had created "an archaic, rigid rule,
contrary to fairness and common sense, that will probably be
eroded by ad hoc exceptions" (Bard, 6 NY3d at 599 [R. S. Smith,
J., dissenting]) had come true.
V.
"It is well settled that '[s]tare decisis is the
preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process' " (People v Taylor,
9 NY3d 129, 148 [2007], quoting Payne v Tennessee, 501 U.S. 808,
827 [1991]). I have no quarrel with the statement that the
mission of a high court would be undermined if judges "cast aside
or chip away at those rulings with which they simply disagree"
(concurring op at 37). But there is much more to my rationale
for dissent here than mere disagreement. A decision may be
overruled, no matter how recent or how long-lived, "when there is
a compelling justification for doing so" (People v Peque, 22 NY3d
168, 194 [2013], quoting People v Lopez, 16 NY3d 375, 384 n 5
[2011]). A court may overrule a precedent "when persuaded by the
'lessons of experience and the force of better reasoning' "
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- 20 - Nos. 17 & 66
(People v Bing, 76 NY2d 331, 338 [1990]), quoting Burnet v
Coronado Oil & Gas Co., 285 U.S. 393, 407-408 [1932] [Brandeis, J.,
dissenting]) and there is no requirement that a patent judicial
mistake be allowed to "age" before it may be corrected. The
holding in Bard that liability for animal-induced injuries cannot
be based on negligence not only "creates more questions than it
resolves" (Taylor, 9 NY3d at 149, citing Bing, 76 NY2d at 347),
but also "involves collision with a prior doctrine more embracing
in its scope, intrinsically sounder, and verified by experience"
(People v Hobson, 39 NY2d 479, 487 [1976], quoting Helvering v
Hallock, 309 U.S. 106, 119 [1940]). The sounder doctrine is the
Restatement position.
The "troublesome" consequences of Bard "on our
jurisprudence" (Bing, 76 NY2d at 348) were clear early on. In
2007, in Bernstein, two Justices of the First Department pleaded
for a less restrictive understanding of Bard, noting that they
could "not view Bard v Jahnke as eradicating the continued
viability of prior cases which impose an enhanced duty toward
children upon property owners who keep animals, where the
presence and actions of children on the premises are reasonably
foreseeable" (Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224,
227 [1st Dept 2007] [Saxe, J., dissenting in part]). The
following year, in Petrone, the Second Department, noting that
Bard was inconsistent with this Court's language in Hyland,
essentially treated the remarks in Bard about common-law
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- 21 - Nos. 17 & 66
negligence as dicta (see Petrone, 53 AD3d at 225-226, 228). In
2012, in Hastings, the Third Department, while applying Bard,
expressed its strong misgivings concerning that ruling, as noted
above (Hastings, 94 AD3d at 1173; see Bloomer, 94 AD3d at 1274
[noting that the Third Department was "constrained to view this
matter solely in the context of strict liability"]).
In addition, our trial courts have expressed serious
discomfort with Bard (see e.g. Krieger v Cogar, 26 Misc. 3d 1225
[A] [Sup Ct, Niagara County 2010]), distinguished the case (see
e.g. Jetter v Hall, 20 Misc. 3d 306, 308-309 [Sup Ct, Monroe
County 2008]), or attempted to use the Hastings exception as a
means of alleviating the limits of Bard (see e.g. Cappellino v
Lake Huntington Summer Community Inc., 46 Misc. 3d 486, 490-491
[Sup Ct, Kings County 2014] [interpreting Hastings "as broadly
applicable and intending to cover incidents of obvious animal
owner negligence that would otherwise go unguarded against under
Bard's vicious propensity - strict liability scheme of
liability"]).
This strong inclination on the part of lower courts to
carve out exceptions to Bard was of course exemplified again in
Doerr. The First Department held, on reargument after our Court
decided Hastings, that ordinary negligence principles apply if a
case "is about the actions of a person that turn[] an animal into
an instrumentality of harm" (Doerr v Goldsmith, 110 AD3d 453, 455
[1st Dept 2013]). The sentiment is echoed in the Chief Judge's
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- 22 - Nos. 17 & 66
proposed exception to Bard that "where a plaintiff sustains
injury as the direct result of actions that a domestic animal
took under the owner's direction and control, a cause of action
in negligence should lie" (op of Lippman, C.J., dissenting in
Doerr v Goldsmith and concurring in Dobinski v Lockhart at 4-5).3
The Bard decision has created more questions than it resolved.
VI.
Nevertheless, the Court now reasserts Bard, and
declines to extend Hastings, despite the striking similarities
between Hastings and one of the cases before us, Dobinski v
Lockhart. In my view, Dobinski raises the same question whether
"a landowner or the owner of an animal may be liable under
ordinary tort-law principles" when his animal, usually kept on
his farm, "is negligently allowed to stray from the property on
which the animal is kept" (Hastings, 21 NY3d at 125-126). In
Dobinski, just as in Hastings, to invoke Bard's restrictive rule
is "to immunize defendants who take little or no care to keep
their [animals] out of the roadway" (id. at 125). Applying Bard
gives dog owners no incentive under the tort law to exercise
reasonable and cost-effective care over their animals so as to
prevent the risk of accidents such as what occurred to plaintiff
3
Notably, the concurring opinion does not rule out the
possibility that an exception to Bard would apply when a
defendant's supervision of a dog or other domestic animal is
"undertaken with the intent to cause harm to another or with
conscious disregard of a known and unjustifiable risk of harm to
another" (concurring op at 38 n 4).
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- 23 - Nos. 17 & 66
Dobinski in Franklinville.
The concurring opinion now supplies, for the first
time, some discussion of the policy considerations missing from
Bard and its immediate progeny, opining that "[a]bsent awareness
of a domestic animal's previously demonstrated tendency to harm
others, the owner should not bear the costs of the animal's
instinctive decisions" (concurring op at 36). This reasoning
loses sight of the fact that it is the owners of domestic
animals, and only their owners, who have the "expertise and
opportunity to foresee and control hazards, and to guard properly
against their own negligence and that of their agents and
employees" (Vendrella, 11 Conn at 324 [square brackets and
citation omitted]). This is as true of the owners of dogs as it
is of those who own horses and other farm animals.
Fundamentally, just as "a farm owner's decision to allow his or
her farm animals to wander freely onto a public road or someone
else's property . . . as a commonsense matter violates societal
expectations in a manner that gives rise to negligence liability"
(concurring op at 20), so his or her decision to allow dogs to
wander freely onto a public road should give rise to negligence
liability. There is no logical difference. Certainly dogs are
less "difficult to train to remain on one's premises of their own
accord" (id. at 20) than farm animals, which typically must be
fenced in, but that only spotlights the nature of the negligence
of one who fails to train his or her dogs not to stray.
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- 24 - Nos. 17 & 66
The concurring opinion argues that "[t]he average New
Yorker knows or ought to know that he or she will encounter
insufficiently restrained pets, which are not confined to the
owner's premises and may harm others depending on the disposition
of the pet and the degree of training it has received"
(concurring op at 21-22). Perhaps this is a reference to an
encounter such as occurred to plaintiff Doerr in Central Park,
where the pet that caused injury was in the company of its owner.
It is certainly not true, either in Franklinville or in
Manhattan, that the average citizen expects to encounter
unrestrained and unaccompanied dogs, running loose among traffic,
that may either keep to themselves or else "harm others depending
on . . . disposition . . . and . . . training" (id.). The
ubiquity of "ordinance[s] restricting dogs from running at large.
. . . suggest[s] that, whatever may have been the expectation in
an earlier, more agricultural age, it is no longer expected that
dogs will roam the highways of this State at will" (Young, 76
NY2d at 1012 [Kaye, J., dissenting]).
I would adopt the Restatement doctrine: that even if
the owner of a domestic animal has no reason to believe the
animal abnormally dangerous, the owner will still be subject to
liability for harm done by the animal if he or she is negligent
in failing to prevent that harm. This is a clear, reasonable and
equitable rule that reflects the law in most states and
corresponds to the majority position in New York before Bard.
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Accordingly, in Doerr, I would affirm the order of the
Appellate Division that affirmed Supreme Court's order denying
defendant's motion for summary judgment. In Dobinski, I would
reverse the order of the Appellate Division that reversed Supreme
Court's order denying defendants' motion for summary judgment.
There are triable issues of fact concerning defendants'
negligence, given their practice of allowing their dogs to run at
large without a leash (see Town of Franklinville Local Law
Relating to the Control, Confining and Leashing of Dogs §§ 5 [a],
4 [g] [2005]), the proximity of their farm to a busy road, and
their habit of encouraging the dogs to run behind wheeled
vehicles, in the form of their "four-wheeler" all-terrain
vehicles. Consequently, defendants' summary judgment motion
should have been denied in Dobinski.
* * * * * * * * * * * * * * * * *
For Case No. 17: Order reversed, with costs, defendant Smith's
motion for summary judgment dismissing the complaint granted and
certified question answered in the negative, in a memorandum.
Judges Read, Rivera, Abdus-Salaam and Stein concur, Judge
Abdus-Salaam in a concurring opinion in which Judges Read and
Stein concur. Chief Judge Lippman dissents in an opinion. Judge
Fahey dissents in a separate dissenting opinion, in which Judge
Pigott concurs.
For Case No. 66: Order affirmed, with costs, in a memorandum.
Chief Judge Lippman and Judges Read, Rivera, Abdus-Salaam and
Stein concur, Judge Abdus-Salaam in a concurring opinion in which
Judges Read and Stein concur, and Chief Judge Lippman in a
separate concurring opinion. Judge Fahey dissents in an opinion
in which Judge Pigott concurs.
Decided June 9, 2015
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