Last year I blogged about the Court of Appeals (highest court in NY State) case of Hastings v Suave where the Court made an exception to the general rule that, if an animal harms someone, the owner can be held liable only if he knew or should have known that the animal had “vicious propensities”. The issue in that case was whether a farmer could be held liable for negligently allowing his cow to stray out into the road and cause an accident. Obviously cows are not “vicious”, so under the general rule the farmer could not be held liable for the harm.
The wise Court saw the need for an exception to the rule, and held that “a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept even when the animal did not display ‘vicious propensities'”.
The Court, however, left the question of whether the same exception would apply to stray dogs and cats, stating, “we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case”. I predicted that the “different case” should not take too long to go up to the Court of Appeals because cats and dogs running into the road and causing accidents is very common.
Well a “stray” dog case is now barking at the Court of Appeal’s door. Just the other day an intermediate appellate court (the First Department) decided Doerr v. Goldsmith. In that case, the owner (defendant) of a small dog called across the street to her friend (co-defendant), asking the friend to put the dog down so the animal could come to her. The friend released the pooch, who then darted across the road toward his owner’s loving arms. The pup failed to look both ways and caused an oncoming cyclist to topple to the ground.
The defendants tried to wiggle their way out of the case on the grounds that their four-legged friend didn’t have a “vicious” bone in his tiny body. But in a 3-to-2 split decision (which means an automatic appeal to the Court of Appeals) the Court held that releasing a dog, even a non-vicious one, near traffic under such circumstances can be grounds for liability.
I like the Court’s reasoning. The Court observed that this kind of case is entirely different from the kind where a vicious animal attacks someone. It is more analogous to two people playing “catch” with a ball across a street. If the ball had struck the cyclist, causing him to fall, they would be liable, so why should they not be liable for releasing a dog, albeit an non-vicious one, to run across the street into the cyclist’s path? Answer: They should!
So I’ll make another prediction: The Court of Appeals will agree and affirm! And I am certain that my readers are predicting that my prediction is right 🙂
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY negligence Lawyers
Michaels & Smolak, P.C.