Meet Tucker. He’s mine. Does his owner look dangerous to you?

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.

And by blame the dog, I mean show a previously known vicious propensity. You know the old adage about each dog getting one bite?  That’s where it comes from, since the bite gives notice to the owner of an, ahem, issue.

If you have a good dog, on the other hand, but a dumb owner that lets the pooch run loose in places pooches shouldn’t be running loose, you can’t sue. At least not successfully. Owners have absolute immunity for their own negligence.

Yeah, that’s a dumb rule. But it was nevertheless reaffirmed two years ago by New York’s top court in Doerr v. Goldsmith when a dog owner called for his dog to come, and the dog obeyed, as it ran across the street in Central Park into the path of a bicyclist.

New York’s Appellate Division, First Department (we have four departments of this intermediary appeals court) thought that suit should go forward. Our top court said otherwise in reversing, telling the injured plaintiff, too fuckin’ bad. That’s a legal phrase of art that lawyers must sometimes use to explain things to clients.

Much unhappiness around, unless you think people should have immunity for their negligent conduct.

Today, the First Department does it again, once again challenging the illogical view of the Court of Appeals. In Scavetta v. Wechsler a dog owner tied his 35-pound dog to an unsecured 5-pound dog rack.

Owner went toward store. Dog followed. Dog heard scraping and screeching of dog rack he was towing, freaked out, and bolted. Rack clobbers Good Samaritan trying to help panicked dog.

So this is another case of Good Doggie, Bad Owner. (OK, maybe negligent owner is the better way to write that, but it doesn’t have quite the same rhythm, does it?)

Can you bring suit solely based on the conduct of the dog owner? Indeed, the plaintiff actually stipulated to the fact that the dog did nothing vicious. This was strictly about owner negligence.

The First Department gets right to it in just the second paragraph. After first stating that it is constrained to follow precedent from Bard v. Jahnke (“when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule), a unanimous panel of the court goes on to decry the sad state of New York law and virtually begging the Court of Appeals to reconsider its unsound policy:

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.

Yeah, I added that emphasis. Immunity. That is what the Court of Appeals has continued to grant for negligent conduct, and it runs counter not only to the rule from the Restatement (Second) of Torts (§ 518 permitting liability where an owner of a domestic animal is negligent in failing to prevent harm caused by the animal), but counter to the rule in the vast majority of states.

The court explained its logic, writing that:

In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations (see Doerr, 25 NY3d at 1148 [Fahey, J., dissenting]) — assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws.

I hate block quotes, but this analysis by the First Department is the essence of what our top court has done:

Under the current rule articulated by the Court of Appeals, it appears that pet owners would be permitted to act in any number of objectively unreasonable ways when supervising their nonvicious pets, because New York law does not place upon them a duty to observe any standard of care …It seems…that under the law of New York at present, permitting a domestic pet that has not displayed vicious propensities to run at large under any circumstances – even when doing so would be clearly dangerous – would never give rise to a claim sounding in negligence. We find this to be most unsatisfactory as a matter of public policy and would recognize a cause of action for negligence in appropriate circumstances.

Let’s hope the plaintiff takes an appeal, and let’s hope that this anachronism of immunity that the court has bequeathed upon animal owners (including me, as the owner of the pictured pooch above) is laid to rest. Six feet under.

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.

This is my pooch, not the one in the collision in this case. But he makes for great blog artwork, no?

Earlier this year I wrote about a change under hoof in New York about animals causing injury. It has long been held that animal owners could only be liable for their animals’ acts if there was a “known vicious propensity,” that being some type of aggressive or threatening behavior. Hence the phrase, “every dog gets one free bite.”

Under those circumstances the owner was strictly liable for injuries, and there was no cause of action for negligence.

But the Court of Appeals cracked that door open earlier this year in Hastings v. Suave, holding in a case where a cow wandered through a poorly kept fence into a road where it was hit, that a cause of action could exist for negligence. This had nothing at all to do with the animal’s viciousness or not, but was solely based on the conduct of the owner.

The court also held that the matter of dogs, cats and other domestic pets was not before it, and would await another day.

That day now seems on the imminent horizon, as today the Appellate Division First Department ruled in Doerr v. Goldsmith, a case where two people on opposite sides of the road in Central Park were playing with a dog. One called the dog and the other released it. A bicyclist was riding in the road and couldn’t avoid impact.

As neatly summarized by the majority opinion:

Plaintiff testified that Goldsmith “was holding a dog in a manner that he was almost hugging the dog, so he had his arm around the chest and the neck of the dog” and that Smith was “slightly bending down and clapping her hands on her upper thighs.” Interpreting Smith’s actions to be a signal to the dog (which was hers) to come to her, plaintiff screamed out, “Watch your dog.” Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it and being propelled off the bicycle. Defendants do not materially dispute plaintiff’s recounting of the incident. Plaintiff seeks to recover against defendants on a theory of negligence. He does not claim that the dog’s actions were a result of any vicious propensities of which defendants may have been aware.

Everybody agrees, it ain’t the fault of the dog, even though courts and lawyers eschew words such as “ain’t.”

Given New York’s historic position on these cases, the defendants moved for summary judgment saying they were immune from anything they did because New York doesn’t have a negligence cause of action. The lower court disagreed and denied the motion. Defendants’ appealed and won, but then the Court of Appeals ruled in the cow case, and so this dog case was re-visted by the appellate court.

The First Department has now reversed itself and allowed the matter to stand, based on the logic in the cow case.

The dissent disagrees, writing that the Court of Appeals didn’t rule on this, having only ruled about farm animals and specifically left dog and pet cases for another day. Leave to appeal should be granted, the dissenters argued, and if the Court of Appeals wants to change the law that is its business.

And so, with a split decision, this case will no doubt go to the Court of Appeals.

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.

Lastly, a  hat tip to attorney Gregory Bagen for taking this case given the state of the law when incident occurred. He took on a matter that he knew, to be successful, would take years of appellate work and expense just to get to the jury. Well done.

My dog; not the offending one. I needed art. He posed.

I know what you’re thinking; you think I put “bites breast” in the subject heading just to grab your attention. Nah, would I do that?

In fact, a dog inside of a car poked its snout through an open window and did bite the breast of a passing woman. And I presume it hurt quite a bit because there is money up on the table and an interesting judicial decision to go with it.

The issue came to a head this week in Allstate v. Reyes, in Dutchess County.  The car, with the dog inside and the window partly open, was parked in a “No Parking” zone when the woman was bitten.   The owner of the car, through his insurance company, ponied up the $25,000 policy that he had.

But the injuries — not listed in the decision — were obviously pretty substantial as the bitten woman then filed for arbitration against her own insurance company under it under-insured motorist claim provision. This is an endorsement on your policy that comes into play if the car that smashed into you (which is what usually happens) was carrying insufficient insurance for your injuries.

But this wasn’t a car accident, it was a dog bite. Did this injury occur arise out of the ownership, maintenance or use of the under-insured vehicle?

Want to take a guess? I’ll wait…

And the answer is, according to Dutchess County Justice James Pagones, yes. It did arise out of the use of the vehicle. Why? Because:

…the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of [the owner’s] vehicle to haul the dog and [the owner’s] act of permitting the rear window to remain open. It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries. [emphasis in original]

Justice Pagones made a point of italicizing that the conduct did not have to be the proximate cause, it only needs to be a proximate cause. And that is because an injury might result from multiple caues.

One interesting twist on this case is this: If this was just a dog bite case, the concept of negligence wouldn’t exist. In New York, we have strict liability for animals with a known dangerous propensity. This is part of the infamous concept of “one free bite” — a concept that isn’t 100% accurate — that gives an owner notice of danger. So if there was no additional insurance through the under-insured endorsement, it would be impossible to obtain a judgment against the dog/car owner for simply the dog bite unless you could prove the dog had a nasty history.

Will you ever see this fact pattern again? Hell no. But I appreciate good judicial reasoning in an off-beat case.