In deciding two cases, New York's Court of Appeals has made clear that the State of NY does not allow a case based on negligence to be brought by an injured party against the owner of a domestic animal. The two cases, decided June 9, 2015, are Doerr v. Goldsmith and Dobinski v. Lockhart. In both cases, Doerr and Dobinski, the plaintiffs were bicyclists injured by dogs which ran into the roadway. In one case the dog was let out from the front door of a house, in the other the dog was unleashed in Central Park and was called by its owner. The court dismissed both cases holding that the dogs owners could not be held liable for negligently letting the dog run into the road. In order to hold the owners liable the injured parties would have to have shown that the dogowners had notice of the animals' "harmful proclivities". In so deciding, the court adhered to its decisions in Bard v. Jahnke (2006) and Smith v. Reilly (2011), where it held that the owner of a domestic animal can only be held liable, under a theory of strict liability, where it can be shown that the owner of the animal was aware of the animal's "vicious propensites" or "harmful proclivities". A plaintiff must demonstrate that the defendant knew of the dog's vicious propensities before the plaintiff could recover for the injuries caused by the defendant's failure to restrain the dog. Thus, only a strict liability claim, and not a negligence cause of action, will lie based on a pet owner's failure to confine the animal to the owner's property or to restrain the animal from running into another person. The same rule applies to cases where a person is injured by a dog bite, attack, or being jumped on by a dog. In each case there can be no recovery unless the victim can prove the dog owner knew beforehand that the dog performed the dangerous activities. Thus in New York, a dog is entitled to "one free bite". In exlpaining the Court's reasoning Judge Abdus-Salaam, in a lengthy concurring opinion, came down on the side of pet owners and insurance companies, stating:
"Abandoning or eroding Bard's bright line rule would harm pet owners and alter societal expectations. Pet owners and their insurers are currently entitled to rely on the Bard rule to plan their future conduct and their insurance needs, and changing the rule now would risk unfairly disrupting their expectations. Additionally, if Bard were overruled and negligence suits were permitted to proceed against pet owners, a violation of a local leash law may be proof of a pet owner's negligent failure to control his or her pet, and thus negligence suits might create a de facto private cause of action under local leash laws, effectively ignoring the will of any local legislature that has decided not to provide for such actions.Chief Judge Lippman dissented from the majority's decision. In discussing the holding of the majority he recognizes that "The rule reflects a policy decision that a pet owner is not required to anticipate and take steps to prevent aberrational, dangerous behavior from an apparently benign animal. For example, an owner will not be liable the first time a rambunctious dog welcoming a guest knocks him down the steps. Thus, in Dobinski, the absence of evidence that the defendants were aware their dogs had a penchant for running into the road dooms the plaintiff's case." Judge Fahey, who also dissented from the majority opinion, bemoaned the fact that New York is the only state in the nation whuch bars a negligence action against owners of domestic animals.
"When Bard was published, New York became " 'the only state in the nation that rejects the rule set forth in the Restatement (Second) of Torts' regarding an owner's negligence as a ground for liability arising from the dangerous acts of animals" (Bloomer v Shauger, 94 AD3d 1273, 1277 [3d Dept 2012], affd 21 NY3d 917  [Garry, J., dissenting], quoting Miner, Outside Counsel, When Animals Attack in New York, NYLJ, Feb. 28, 2012, at 4, col 1)."The recent ruling continues a long line of cases since the 2006 Bard decision, where the court of appeals has denied a victim any compensation for being unable to prove "vicious propensites" or "harmful proclivities". For example: Bard v. Jahnke (2006): Plaintiff was attacked by a bull allowed to roam free in a barn. No recovery was allowed. Petrone v. Fernandez (2009): Mailman injured trying to escape from unrestrained dog on unfenced property in violation of a leash law. No recovery was allowed. Bernstein v. Penny Whistle Toys (2008): Infant plaintiff bitten by store owner's unleashed dog in store. No recovery allowed. Smith v. Reilly (2011), bicyclist collided with dog which ran into roadway. No recovery allowed. Bloomer v. Schauger (2013): Plaintiff injured by horse's sudden movements. No recovery allowed. In each of the above cases the victim was denied compensation because they could not prove that the animal had knowingly previously acted that way. The only exception to the rule has been the Court of Appeals holding in Hastings v. Suave (2013) where it held that the owner of a large farm animal would be held liable for injuries resulting from allowing the animal to roam into the public roadway, regardless of whether there was such a prior proclivity. In that case the plaintiff was a driver who was injured when her car struck a cow in the road. The court said in Hastings that it was not making any decision at that time as to whether the rule being applied to large farm animals that wander into the road would be extended to domestic animals. However, the court has now specifically declined to extend this rule to dogs or other domestic animals. Thus, the owner of a domestic animal can only be held liable, under a theory of strict liability, where it can be shown that the owner of the animal was aware of the animal's "vicious propensites" or "harmful proclivities". If you or someone you know has been injured due to an animal, or the negligence of another person, you should seek counsel from an experienced NY Personal Injury Lawyer. For a free consultation with an experienced New York Personal Injury Lawyer call Zalman Schnurman & Miner at 1-800-LAWLINE (1-800-529-5463)