Court (Reluctantly) Applies “Vicious Propensity” Rule to Dismiss Personal Injury Case Arising From Escaping Dog

In Scavetta v. Wechsler, 2017 NY Slip Op 01985 (App. Div. 1st Dept. March 16, 2017), the court applied the “vicious propensity” rule to affirm the summary judgment dismissal of a personal injury case arising from a dog escaping from an unsecured bike rack.

At the same time, the court “acknowledge[d] plaintiffs’ persuasive argument that the [vicious propensity] rule may be neither prudent law nor prudent policy.” If the plaintiff pursues the matter in the Court of Appeals, we could see a change in the law.

Here are the facts:

On March 24, 2014, defendant was walking his dog on the way to meet a friend at a pizzeria on Lexington Avenue between 93rd and 94th Streets in Manhattan. Upon arriving at the restaurant, he tied the 35-pound dog by its leash to a metal bicycle rack, which weighed about five pounds and had dimensions of approximately 3 feet by 3 feet by 2 feet. The rack was of the sort to which cyclists or bicycle delivery workers ordinarily lock their bicycles for security outside of buildings.

Defendant did not assure himself, however, that the rack was secured to the ground or to anything else. As he reached the entrance of the pizzeria, defendant heard the rack scraping against the sidewalk and turned to see his dog running down the street, pulling the rack with its leash. It appeared to defendant that the dog started to follow him as he approached the restaurant but was frightened by the noise of the rack scraping against the sidewalk and began to run. The dog was not chasing anything, but it was running “[v]ery fast” and was “panicked.” Defendant started running after his dog, but was unable to catch up to it.

Meanwhile, plaintiff Gregory Scavetta was on his way to work, walking north on Lexington Avenue, and began to cross 93rd Street in the crosswalk. As he crossed the street, Scavetta heard the scraping of the rack and saw the dog running straight towards him, dragging the rack behind it. The dog ran past Scavetta and hid underneath a car. Scavetta then took one or two steps toward the dog, to see if it was injured and whether he could disconnect the rack from the leash, but the dog immediately “sprung back out from underneath the car and took off again.” The dog ran back towards Scavetta, still dragging the rack, which struck him. One of Scavetta’s legs got caught in the rack’s crossbars, and, as the dog continued to pull the rack, Scavetta was spun around so that both of his feet went up in the air and he landed on his back.

The court cited and applied various Court of Appeals precedent – including Bard v Jahnke, 6 NY3d 592 (2006) and Doerr v Goldsmith (25 NY3d 1114 (2015) – in rejecting plaintiff’s claims:

[W]e must reject plaintiffs’ negligence claim. Plaintiffs argue that the instant matter is distinguishable from Bard, Doerr, and similar cases involving harm caused by domestic animals, because this case does not involve the nature of an animal acting of its own volition, but concerns an injury that was caused by its owner’s conduct. To be sure, the majority in Doerr left open the possibility that other exceptions to the Bard rule could be recognized where a domestic animal was involved in an injury; indeed, the Court explicitly limited its holding to the particular circumstances of that case (id. at 1116)[FN4]. And, of [*5]course, there are notable factual distinctions between this case and Doerr: Here, plaintiffs allege that defendant caused the injury not by commanding the dog as in Doerr, but by mobilizing a dangerous object when he attached his dog’s leash to the unsecured rack. In other words, plaintiffs argue that defendant launched an instrumentality of harm that was not the dog itself but an inanimate object that was put into motion by defendant (cf. Doerr, 110 AD3d at 455). However, the exception plaintiffs would have us recognize here – based on the defendant’s conduct, and not the dog’s, as the cause of the injury – is analogous to the one this Court accepted but the Court of Appeals rejected in Doerr (25 NY3d 1114)[FN5]. Furthermore, it appears that, aside [*6]from the Hastings exception, Bard continues to be an absolute bar to negligence claims where domestic animals cause injury.

The court indicated that if was not constrained by Court of Appeals precedent, it would have permitted plaintiffs to pursue their negligence cause of action.

It noted that “[u]nder 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” and that “as a matter of public policy … New York should join the overwhelming majority of states that follow the Restatement (Second) of Torts § 518.”

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