April 17th, 2025

NY Top Court: OK to Sue Dog Owners for Negligence

Animal Law is back in the headlines! And the enteral question, at least in New York, is what happens if you have a good dog but a bad owner?

It has been a longstanding (and terrible) practice in New York that suing negligent animal owners for injuries caused by their own negligence was forbidden, and that one could only bring a strict liability action against an owner if the animal had a known vicious propensity (“every dog gets one free bite”).

You had to blame the dogs and owners were immune for their negligence.

I last wrote about this back in 2017:

When last we visited New York’s dog law, it was really good for dog owners, but not so good for those that were injured by their negligence. New York, you see, is an outlier to the vast majority of states. While in most states you can successfully sue the owner for the owner’s negligence, in New York, you have to blame the dog.

Back then, I was writing about Scavetta v. Wechsler, part of our line of “good dog, bad owner” cases. That owner had tied his 35-pound dog to a small unsecured dog rack and went toward a store. The good dog tried to follow. The dog then heard scraping and screeching from the metal rack it was dragging, freaked the hell out, and bolted. The rack clobbered the Good Samaritan trying to help the panicked dog.

It was a dumb rule to give immunity to the owner, a rule that had nevertheless been affirmed by New York’s top court two years earlier in Doerr v. Goldsmith. In Doerr, a dog owner called for his dog, and the dog obeyed, as it ran across the street in Central Park into the path of a bicyclist. The court explained that it was following the law as previously set forth in Bard v. Jahnke (“when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule).

In the 2017 case, Scavetta, while constrained to follow the prior rule, a unanimous panel of the Appellate Division (First Department) urged the Court of Appeals to reverse:

At the same time, we take this opportunity to acknowledge plaintiffs’ persuasive argument that the Bard rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner’s negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

And today the Court of Appeals has done just that. Its dogawful precedent was struck down in Flanders v. Goodfellow. In Flanders, the 70-pound dog was inside and slipped past its owner when he went to open the door for a mailman, and attacked him. A nasty bite and multiple surgeries later and we have a landmark ruling.

While acknowledging that stare decisis is an important rule, the Court held that, “Taking full account of these factors, along with the abiding values that stare decisis seeks to promote, “[W]e conclude that the time has come to set aside Bard‘s rule that an owner of a domestic animal may not be held liable in negligence for harms caused by their animal.”

As a public policy matter, giving owners immunity for negligence could not stand up: “Tort law seeks to incentivize us to be mindful of the risk that our behavior might harm others by imposing a duty to act with due care. That is why, under ordinary principles of negligence, a victim may seek recovery by proving that a defendant failed to exercise due care and thereby proximately caused a victim’s injuries.”

By exempting owners of domestic animals from negligence liability, Bard departed from these principles, and the standard incentives of our tort system, in several respects. For one thing, foreclosing negligence liability shifts both the burden of due care and cost of injuries away from owners of domestic animals to parties injured by those animals. And by allowing liability only upon proof that the owner had actual or constructive knowledge of a vicious propensity, the rule gives owners of domestic animals little reason to familiarize themselves with any potential proclivities that might lead the animal to cause harm, and in turn, to take reasonable steps to prevent any harm that may result.

This is a great result, and it was without dissent. There was only one downside to it — our most esteemed high court failed to quote me, but I guess you can’t get everything in this world. From 2013, when I was hoping that the Court would overrule the Bard decision in Doerr:

My prediction: New York’s long-held policy of granting immunity to animal owners for their own negligence (as opposed to the animal’s viciousness) will fall by the wayside as illogical. Immunity for negligence makes no sense at all, and is something that only a legislature can grant.

So the Court didn’t do it in Doerr, but it did it now. Better late than never.

February 26th, 2025

Torts and Torah

Most folks know that much of our criminal law is biblical. Thou shalt not murder, nor steal, nor bear false witness come right from the 10 Commandments.

But as my friend appellate lawyer Michael Altman points out to me, so too does much of our civil tort system.

Last week’s Torah portion was Mishpatim, which means laws. Among other things it set up a civil justice system, which includes remedies for torts. As he reviewed the portion it struck him how relevant some of it is to what we do in the personal injury bar today.

Perhaps the most significant part is demonstrating just how far back a civil justice system that recognizes compensation for torts goes.

The citations below (of course there are citations, this is a law blog, right?) are from the Old Testament.

The most famous quote from that Torah portion is “an eye for an eye and a tooth for a tooth, a hand for a hand, a leg for a leg.” (Ex. 21: 24) You can almost hear Tevye quip, “Very good, and the whole world will be blind and toothless.” While a great line for Fiddler on the Roof, all rabbinic commentaries agree that it is not to be taken literally. Rather, it requires monetary compensation equal to the value of the lost body part.

The principle of compensation for personal injuries doesn’t just go back centuries. It goes back millennia.

In addition to requiring compensation for injury to a person, the Torah also recognizes the obligation to make restitution for injury to property:

“If a man takes his animals into someone else’s field or vineyard, and he lets them trample or graze in this other person’s field or vineyard, he must make restitution with the best of his field or the best of his vineyard.” (Ex. 22: 4)

Perhaps most importantly, it provides that all are equal before the law — rich and poor alike — as former Chief Judge Lippmann liked to note in advocating equality before the justice system:

“You must not pervert justice for your destitute countryman in his lawsuit.” (Ex. 23: 6)

Directly on-point with what Michael and I do, this part of the Torah also provides that one who causes or creates a dangerous condition is financially responsible for injuries resulting from it:

“If a person removes the cover of a pit, or digs a pit and does not cover it, and a work-bull or a donkey falls into it, the one responsible for making the pit must make restitution. He must restore the value of the animal to its owner, and the carcass remains its owner’s property.” Ex. 21: 33-34

And it provides for restitution for causing or creating a hazard:

If a fire breaks out and spreads through thorns, so that it consumes stacked or standing grain or a field, the one who kindled the fire must make restitution. (Ex: 22: 5)

The concept of notice is well known to the bar, and also here. It is not enough, for example, to make dog owners liable if their pooches bite someone. They must have first known that the dog had a known vicious propensity. This concept was not invented by us:

“If a work-bull gores a man or woman and the victim dies, the work-bull must be stoned; its meat may not be eaten. But the owner of the work-bull must be acquitted. However, if it was a work-bull that had gored on three previous occasions, and its owner had been warned in court but he did not guard it, and it then killed a man or a woman, the work-bull must be stoned. Its owner, too, will be put to death.” Ex. 21: 28-29.

I’d like to thank Michael for putting these quotes together, something that was well beyond my limited ability on the subject of Torah.

But I publish them here because people often see things through the lens of what happened today, or last week, or maybe a decade ago. But just a little bit of history helps put things in a different perspective.

(Law through the ages is part of a New Deal mural in the rotunda of the New York County Courthouse, including Babylonian Hammurabi’s Code and Hebraic law, among others).

February 4th, 2025

Judge: I Can’t Serve Jury Duty; They are all guilty

I thought that I’d heard all the best excuses for avoiding jury duty. They get repetitious after awhile and you can usually see them coming a mile away as to why they can’t serve.

But a judge saying he can’t be fair, because all the people who are arrested are guilty of something?

As per the Associated Press, regarding Justice Richard T. Snyder, a town justice for 10 years in Petersburgh, New York, as he was being questioned regarding serving on a grand jury:

According to court transcripts, Snyder tried to avoid serving on a jury in 2023 by first identifying himself as a judge and then saying, “I know everybody come in front of me. I know they are guilty. They would not be in front of me.”

And this was not simply a misstatement, because he kept going at the judicial hearing commission:

At a judicial commission hearing the following year, Snyder said he understood that defendants are supposed to be considered innocent until proven guilty but that he still felt that people wouldn’t be in court if they didn’t commit crimes.

“I meant, that they were guilty because they did something wrong. But they’re not guilty ‘til they come to court. They’re innocent ’til proven guilty,” he told the commission.

Sigh. Even high school kids know that people are presumed innocent — at least the kids who are paying attention.

As Scott Greenfield noted long ago in arguing for the abolishment of non-lawyer judges:

One of New York’s peccadilloes is that you don’t have to be a lawyer to be a judge in our local courts. …It is fundamentally wrong to subject people to a system of justice with the same power as a legitimate system but neither the qualifications nor competence to fulfill its mission.

But they are still here.

And while it is easy to rail against this judge, the question remains, how many others are out there just like him?

That post from Greenfield was written 19 years ago. Nineteen. Years.

And we still have non-lawyers serving as judges. Except for Snyder, who has resigned.

January 20th, 2025

The Qualities a President Needs

President Joe Biden poses for his official portrait Wednesday, March 3, 2021, in the Library of the White House. (Official White House Photo by Adam Schultz)

I posted this when President Obama left office, and then again four years later. And now that Biden has left I think it’s worth posting again.

I don’t think its worth re-posting because I’m some great wordsmith or savvy political commentator that loves his own words. I do it because I think most commentators suck.

A presidency shouldn’t be about non-stop partisan issues, yet that is where the vast majority of commentary on presidents is usually focused. And yes, it often focuses there as a reflection of the conduct of the president, but oft times, it’s merely a reflection of the deep desire of the media for clicks and eyeballs, and they use rage-bait for that. Actual substance falls by the wayside.

But if a president conducts himself well, then at least he can tip the scales of commentary toward public policy, however unsexy the commentariat might believe that to be.

Without further ado, my thoughts on what I believe a president needs to succeed on a public policy basis.

======================

I want a policy wonk. Fundamental to any leader is an ability to understand that the choices aren’t between good and bad, but between bad and awful. And you want a president with the deep understanding of policy to figure out which is which.
I want someone to appoint qualified people. The vast, vast majority of America has no idea who the head of the EPA, FEMA, Department of Energy, or HUD are. You know why? Because they didn’t become part of any grand screw-up. There’s something to be said for not knowing who they are, as it means they are most likely doing their jobs without conflict.
I want someone that doesn’t make rash decisions. And that’s because policy is full of nuance. Slow and deliberate is the way to go, so that a president can absorb as much information and as many opinions as possible.
I want someone who can keep his cool under pressure. Every president will face pressure, be it from foreign conflicts, hostage/kidnapping/terrorism or domestic political problems. Being able to take the long view, instead of instantly ranting and raging, is a quality to be admired.
I want a scandal-free administration. When was the last time a president walked out of the oval office after 8 years without major scandal?
I do not want drama. If there is some sort of drama regarding the White House, it is never, ever good.
I want someone who doesn’t blanch at the prospect of admitting error and reversing course. Every president will make mistakes, and ego often gets in the way of admitting error. But it’s far better than making the situation worse by continuing on, in the desperate hope the bad decision will magically turn good.
I want someone with a fundamental appreciation for the fact that ignorance and arrogance are both awful in a president, and together they can be deadly. And the wisdom to recognize it in themselves.

I put up these qualities, instead of issues, because there are thousands of issues that will cross a president’s desk. Cherry-picking what I liked (or didn’t like) would miss the point about the human qualities that someone should have to be an effective president.

January 10th, 2025

Sam Altman, Lawyers and the Money Shot Fail

Sam Altman is the OpenAI chief honcho, which released ChatGPT. And Ann Atlman is his younger sister. She has sued him for sexually abusing her starting from the age of three. Sam has denied the charge.

But this post isn’t really about that. In fact, I didn’t bother to even read the complaint.

This post instead is about Ann Altman’s lawyer, Ryan Mahoney. What did Mahoney do to raise my ire to write of him? Nothing wrong. He did something that made me applaud.

If people write about lawyers doing crappy things, shouldn’t we take notice when the lawyering is done right?

Some years ago I had screamed into the blogosphere about lawyers that put ginormous monetary claims in their lawsuits here in New York. It’s not allowed anymore, but some do it anyway. (See: Death by Red Bull, An $85M Lawsuit, And The Money Shot; and The $30M Dog Bite)

The lawyers do it because they don’t know the law (unlikely) or because they care more about seeing their names in the paper, to generate more traffic to their firms.

But each time it happens, a couple things occur: First, the headlines lead their stories with the money quotes, so the story is now about the money, not the safety failure that brought on the injury. Second, the headlines are things that jurors remember, making jury selection more difficult than it already is as many people have their minds poisoned by outlier claims that make the headlines.

Now back to the Sam Altman case and Ryan Mahoney. In this New York Times piece I see the following:

Ms. Altman’s lawsuit requests a jury trial and damages in excess of $75,000. Ms. Altman’s lawyer, Ryan Mahoney, said in an interview with The Times that the amount was the minimum required for a federal suit of this kind. He said that if the suit proceeded to a jury trial, he and his client would seek “an amount that fully compensates my client for what happened to her.”

Mahoney was offered the money shot. “Tell us how much you want!,” asked the press. He declined. So the story is now about the issue, and not the money. The money bit is buried in the 10th paragraph of a 12-paragraph article.

I have no idea if the case has merit or not, but for my purposes that doesn’t matter today. I just see a lawyer handling the press the way it is supposed to be done.