In Doerr v. Goldsmith, the First Department recently allowed plaintiff’s injury claim, arising from an animal encounter, to proceed on a theory of negligence. In sum, the court held that the focus (at least in cases where an allegation of “vicious propensity” is not advanced) is on the dog’s humans, rather than the dog.
Plaintiff was riding his bicycle in Central Park when he hit defendant’s dog. Plaintiff testified that the dog was being held by one defendant, and that the other defendant made a gesture signaling for the dog to come to her. Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it, which caused him to be propelled off his bicycle.
Plaintiff, who does not claim that the dog’s actions were a result of any “vicious propensities”, sought to recover on a theory of negligence.
Until recently, the law in New York was that “a person who is injured in an accident involving an animal can never have a claim for negligence against the animal’s owner, but can only recover in strict liability on a showing that the owner knew of the animal’s vicious propensities.”
The court noted the controversial nature of this rule, and highlighted the distinction (recently drawn by the Court of Appeals in Hastings v. Sauve, i.e., the “cow case”) – between an accident caused by an animal’s “aggressive or threatening behavior” and “one caused by an animal owner’s negligence in permitting the animal from wandering off the property where it was kept.”
The court, apparently believing that this case fell on the latter end of that spectrum, affirmed the denial of summary judgment to defendants:
[This case] is not about the particular actions of an animal that led to a person’s injury. Rather, it is about the actions of a person that turned an animal into an instrumentality of harm. Here, the dog was in the control of defendants at all times in the split second before the accident occurred. Had Smith not called the dog, and Goldsmith not let it go, plaintiff would have ridden past them without incident.
Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident.
Judge Andrias dissented, noting that Hastings was limited to farm animals and is not controlling here, and arguing that the court “should adhere to the established rule that New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a pet dog.”
As noted by attorney Eric Turkewitz, this case may very well end up before the Court of Appeals. [Update: he was right.]