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.

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate  appellate court has written that it doesn’t like the decision it was forced to render  and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that 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.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

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 (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—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.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.