“Vicious Propensity” Rule Inapplicable to Claim Arising From Dog Attack in Veterinary Clinic Waiting Room

In Hewitt v. Palmer Veterinary Clinic, PC, No. 28, 2020 N.Y. Slip Op. 05975, 2020 WL 6163313 (N.Y., Oct. 22, 2020), the New York Court of Appeals held that the so-called “vicious propensity notice” rule – generally applicable to situations where an injury results from a domestic animal – was inapplicable here, where the alleged attack occurred in a veterinary waiting room.

In sum, plaintiff brought her cat to defendant veterinary clinic. While waiting in the reception area, a veterinarian returned Vanilla, a dog, to her owner after Vanilla underwent a medical procedure to her paw. After the veterinarian handed Vanilla’s leash back to her owner, Vanilla – in an apparent attempt to reach the cat – slipped her collar and jumped at plaintiff from behind, grabbing her ponytail.

The Supreme Court granted defendant veterinary clinic’s motion for summary judgment, reasoning that its “liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner.” The Appellate Division affirmed. The Court of Appeals now modifies that order by denying defendant clinic’s motion for summary judgment.

The Court explained why, under the unique circumstances of this case, the “vicious propensity” rule does not apply:

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim. To be sure, “[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability” as the owner of a domestic animal (Strunk, 62 N.Y.2d at 575–576, 479 N.Y.S.2d 175, 468 N.E.2d 13). However, we are satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer’s lack of notice of Vanilla’s vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must (see Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]), questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment.

The Court also held that the lower court properly struck those portions of plaintiff’s supplemental bills of particulars, in that they introduced a new theory of liability into the case, several years into the litigation.

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