NY Court of Appeals: Plaintiffs May Proceed On Negligence Theory To Seek Damages For Injuries Caused By Wandering Livestock

cowYes, you read that right.

The Court of Appeals recently indicated, in Hastings v. Sauve, an intention to chip away at the “vicious propensity” rule that has traditionally been applied to lawsuits arising from animal-related injuries.

While driving on Route 53 in the Town of Bangor in Franklin County, Karen Hastings hit a cow with her car.  The cow had wandered onto the road from a farm that was adjacent to the highway and owned by Laurier Sauve.

Hastings and her husband sued.  The trial court granted defendants’ motion for summary judgment, and the appellate court affirmed.  The Court of Appeals, however, reversed, permitting plaintiffs to proceed on a negligence theory.

It held that “the rule of Bard v Jahnke (6 NY3d 592 [2006]) does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept” and faulted the Appellate Division for affirming dismissal based on its citation to “Bard and other cases for the proposition that injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence.”

This case was different, held the court, than those in which the animal behavior was threatening or aggressive:

This case, unlike Collier, Bard, Bernstein and Petrone, does not involve aggressive or threatening behavior by any animal. The claim here is fundamentally distinct from the claim made in Bard and similar cases: It is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. 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 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 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.

Therefore, “while a number of important facts are disputed, the record read most favorably to plaintiffs would support a finding that any or all of the three defendants were negligent in allowing the cow to enter the roadway”, making summary judgment for defendants improper.

While this case will likely not have much of an impact – since most animal-injury cases likely do not involve wandering farm animals – it does signify a changing judicial attitude towards the “vicious propensity” rule that may incur further erosion in subsequent cases.

It is, however, not cow-specific:  The court specifically indicated that its holding may be applied to “domestic animals” as defined in Agriculture and Markets Law § 108 (7), namely,

any domesticated sheep, horse, cattle, fallow deer, red deer, sika deer, whitetail deer which is raised under license from the department of environmental conservation, llama, goat, swine, fowl, duck, goose, swan, turkey, confined domestic hare or rabbit, pheasant or other bird which is raised in confinement under license from the state department of environmental conservation before release from captivity, except that the varieties of fowl commonly used for cock fights shall not be considered domestic animals for the purposes of this article.

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