Not the dog in the lawsuit, but mine. Does Tucker look like he would hurt anyone? Or even obey a command to come?

It wasn’t the dog’s fault. His owner called for him in Central Park, and he bolted across the road exactly as commanded. And into the path of a bicyclist. The animal was not dangerous, but rather, was directed to do something that was.

New York has had a long standing rule that held that, for pets, one could only bring a lawsuit under strict liability, if the pet had a known vicious propensity (see: Bard v. Jahnke). Hence the phrase, every dog gets one bite. We didn’t have a common law cause of action based on negligence.

It was all about whether or not that bite Fido took could have been reasonably anticipated. And if Fido had that propensity (either by bite or other aggressive behavior), the owner was responsible no matter what.

Would this case change things? Our high court had already ruled in Hastings v. Suave that the owner of a cow that innocently strays past a dilapidated fence into the road could be held liable. Why not a dog? This isn’t about the animal, but about the owner.

I discussed back in 2013 how this case — alleging only negligence and not strict liability — was headed to the Court of Appeals when a divided panel of our Appellate Division (First Department) ruled that the case could go forward. It was time, I guessed, for our archaic and unfair law to be updated.

At that time I ventured a prediction:

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.

I was wrong. New York’s Court of Appeals today re-affirmed in Doerr v. Goldsmith that owners were still free to be negligent with their pets; owners get immunity from negligence.

The opinion is quite short. But there is a lengthy concurrence and two separate dissents.

Judge Abdus-Salaam thought it necessary, in concurring, to discuss at length the two cases before the court (the other, Dubinsky v. Lockhart, also dealt with loose dogs hitting a bicyclist, and alleged both negligence and strict liability). She started with our jurisprudence going back 200 years, when bites were the only issue in a rural society where the fastest mode of travel was a horse.

But despite her lengthy analysis — which includes the history of our pets being able to roam free on the streets and the expectations of others that this would occur — her opinion did not speak for the majority. She argues, unconvincingly in my opinion, 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”

Frankly, if I were walking on the streets of the city, I would not expect an unrestrained pet. We have leash laws, you know.  It’s like saying you should expect drunk drivers on the road, and therefore there is no liability for the drunk running the light because you should expect drunk drivers.

And so we get argument for a one-size-fits-all rule regardless of whether you are in the nation’s biggest city or one of our many rural hamlets.

In arguing for the retention of the easy-to-follow rule of granting immunity that comes from our prior agrarian society, she writes:

In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time.

Well, “unjust” would certainly seem to fit these circumstances, but I’m not on the bench.

Chief Judge Lippman, in dissent, notes this about the existing rule that he fought to change:

…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.

Yep, that is it, immunity for tortfeasors. A concept that is generally foreign to our common law jurisprudence.

And this, regarding the defendant-owner deliberately setting in motion the chain of events:

…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.

Judge Fahey also dissented, and noted that our common law jurisprudence is pretty good, that there is a long line of cases going back over 100 years to support a negligence cause of action against dogs, and that there doesn’t need to be this exception:

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

So this is the rule in New York: If a farm animal wanders off because of the negligence of the owner, the owner can be held negligent. But if the animal is a pet, the answer is the opposite.

Welcome to New York.