When Animals Attack in New York Part II
On February 28, 2012 my article "When Animals Attack in New York"
was published in the New York Law Journal. In that article I discussed the rules in New York in regards to finding animal owners liable for injuries which their animals inflict. To summarize, in New York the victim of an injury caused by a domestic animal must show that the animal had a prior history of acting in a similar way that caused the current injury. Such is known as the prior vicious propensity rule. Whether or not the owner of the animal was negligent is not relevant. Two recent Appellate Division cases, one of which quotes my NY Law Journal Article, highlights the difficulty animals victims have in recovering compensation for their injuries. In Hastings v. Sauve
the plaintiff was severely injured when her car struck a cow which had wandered into the roadway. The court ruled that no recovery could be had since there was no history of the cow previously wandering into the road. The court though was not happy with the result.
The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and, instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident. The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants' legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal's owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.
In Bloomer v. Shauger
, the same court again denied relief to the plaintiff. In Bloomer
, the defendant owned two horses Topper & Whiskey, who were life long companions, but Topper died. The surviving horse, Whiskey, became agitated when in full view Topper was laid to rest in a grave. Robert Bloomer a neighbor tried to calm Whiskey by petting her, which seemed to calm the horse down. The owner, Shauger, then approached Whiskey with a lead line to remove him from the scene, but Whiskey who was known to dislike the lead line and walk away in the past upon seeing one, reared up this time at its site. Bloomer's finger was severely injured when it finger got caught in the harness when Whiskey reacted to seeing the lead line. The court dismissed the case (in a 4 to 1 decision) stating that Whiskey's known aversion to the lead line did not evince a vicious propensity, since in the past she would just walk away. One dissenting Justice, Elizabeth Garry, would have not dismissed the case arguing that the horse's propensity to resist the lead line showed a known aggressive propensity. In her dissent Justice Garry quoted my law journal article stating:
New York is apparently "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 (Miner, Outside Counsel, When Animals Attack in New York, NYLJ, Feb. 28, 2012, at 4, col 1; see Bard v. Jahnke, 6 NY3d 592, 597-599 ). As we are thus applying an extremely restrictive rule, we should not do so in an extremely restrictive manner. Accordingly, I would reverse that part of the order granting defendant's motion for summary judgment and allow the matter to proceed for determination of the contested factual issues.
In an April 16, 2012 article
John Caher of the New York Law Journal quoted my earlier article as follows:
Marc Miner, principal attorney at Zalman Schnurman & Miner, in a recent Law Journal column (NYLJ, "When Animals Attack in New York," Outside Counsel, Feb. 28, 2012), said it is of no relevance that an owner neglected to close a gate or properly secure an animal. "In the past year, victims of animal attacks have had a particularly hard time finding relief through the courts," Miner wrote, citing one Court of Appeals decision, two by the Fourth Department and one by the Third Department.
In a follow up article and interview, with John Caher of the Law Journal. I was quoted as follows:
"It is obviously very, very bad law for injured parties," Miner said. "It is a very strict rule that makes it very hard to recover. It is the strictest rule in the country."
In order to prevent the continued injustice of animal owners not being held responsible for their negligent actions, New York's Court of Appeals will have to overrule its own recent rulings, or the legislature will have to enact laws to better protect the safety of citizens of the State who due to know fault of their own are injured through the negligence of others. Until such happens many people who are injured by animals in New York, as a result of the owner's negligence, will go uncompensated for their injuries. If you are injured by an animal you should consult an attorney about your rights. While, the law in New York is burdensome, recovery can be had under the proper set of facts. A New York lawyer who handles dog bite cases and other cases in which injuries were caused by animals will be able to help you obtain compensation where possible. Zalman Schnurman & Miner are New York Lawyers who handle all personal injury actions including cases where people are injured by dogs and other animals. For a free consultation call 1-800-LAWLINE (1-800-529-5463) or submit your inquiry here.