On April 5, 2012 Hastings v. Sauve, Case No.: 512407 (Kavanagh, J.) was handed down by our Third Department. The facts are as follows: the plaintiff was injured when her vehicle collided with a cow which was wandering on a local highway in the Town of Bangor in Franklin County. The cow was owned by a co-defendant of the defendant farmer who operates a farm adjoining the highway. The cow was being corralled at the farmer’s feed lot prior to being shipped for slaughter when it somehow escaped.
The plaintiff sued the defendants and only pled a negligence cause of action, for some reason failing to bring an action in strict liability, which is the proper allegation in a case involving a domestic animal[1]. The Court therefore affirmed the dismissal which had been granted by the Supreme Court. Such is the typical expected result in cases of this type and would have been an unremarkable result if the Court had not gone on to discuss its “discomfort” with the rule of law that when applied to the facts of the case would not permit recovery by the plaintiffs on a pure negligence claim.
The Court discussed the possible risks to the public that a large animal such as a cow may create when it is allowed to roam in the streets. The Court stated that such risks are “self-evident and not created because the animal has a vicious or abnormal propensity.” The Court went on to note that: “[t]he 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.”
The Court concluded by stating that “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.”
Where does this leave the present status of a negligence cause of action in a case involving an animal? The answer is dependent upon which judicial department the action is brought in.
Currently, the Third and Fourth Departments follow a requirement that strict liability based upon an animal’s prior vicious propensities be pled and proven before liability can attach for an injury to person or property caused by an animal. However, the First and Second Departments have adopted an exception to this rule.
The cases of Colarusso v Dunne, 286 AD2d 37 (2nd Dep’t 2001), Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t 2000) and Schwartz v. Armand Erpf Estate, 255 AD2d 35 (1st Dep’t 1999) carve out exceptions to the strict liability only rule and impose higher standards of care upon property owners in limited circumstances where it is shown that a defendant breached a distinct, enhanced duty as required by the particular circumstances. Interestingly in all three of these cases where the courts imposed such a duty there existed in the facts a danger to small, infant children which should have been reasonably perceived by the defendants.[2]Also significant is that each of the cases involved serious injuries to the children.
Schwartz, the first case to recognize this “enhanced duty” involved a four-year-old child who crawled under an electrified fence at a horse corral owned by the defendants. The boy wanted to pet one of the horses and while the horse was walking towards the barn, the boy was kicked in the head and suffered brain injuries.[3]The Court, in affirming the denial of summary judgment, adopted the reasoning of the Restatement of Torts[4]and applied a common-law negligence standard due to the Court’s finding of a propensity which is normal to a “class” of animal (i.e. a tendency of horses to kick).[5]The Court held that for this enhanced duty to apply a distinct act must exist that the defendant should have done or not done under the circumstances presented. The Court found that even though the horse was properly contained in its corral, the owner had a distinct duty to keep the horse under control and a failure to do so allowed the cause of action for negligence to proceed.
The Court also went further and imposed a duty upon the defendants to take into consideration that where children are present on the property special safeguards must be established as children are inherently curious and have a propensity to examine novel and interesting things without regard for the danger that these things may involve. The Court also distinguished a horse as being more dangerous than a dog or cat due to its sheer size, an issue which was discussed in Hastings. The Court indicated that the defendants could have satisfied their duty by erecting additional fencing and by not merely telling the child to stay away, but also providing the child with a warning of the potential risks.
Relevant to the Schwartz case is St. Germain v. Dutchess County Agric. Soc., 274 AD2d 146 (2nd Dep’t 2000) where a plaintiff was trampled by a cow that broke free from a handler during a County Fair. The Court held that a negligence standard applied as plaintiff’s expert’s affidavit supported the contention that the class of animal, in this case a young heifer (a female cow who has not yet given birth), was likely to be “spooked” and such a condition should have been known by the defendants.
In Colarusso, the defendant daycare operator permitted his dog to be present around children. The dog was “bear hugged” by the three year old plaintiff and he was bitten in the face by the dog. Upon appeal the plaintiffs abandoned their strict liability theory and advanced solely on negligence. The Court found that an issue of fact existed as to whether the defendant owed a duty to prevent the interaction between the dog and the child.
Finally, in Diamond-Fisher a 20 month old infant plaintiff was allowed to reach for the defendant babysitter’s Siberian Husky’s food bowl while the dog was eating. The resulting bite required 104 sutures. There was no evidence that a vicious propensity existed, however the Court found that where a defendant is babysitting a small child a heightened duty exists to protect that child from potential dangers and held that an issue of fact existed as to the reasonable care exercised by the defendant.
The Third Department discussed and refused to follow the holdings of Colarusso, Diamond-Fisher and Schwartz in the case of Shaw v. Burgesswhich was decided in 2003[6].
Shaw involved a fact pattern where the defendant owner failed to restrain his dogs at his property while a prospective purchaser was viewing the property, despite a warning from his realtor to have the dogs contained when showing the property. The plaintiff (the prospective purchaser), who was bitten by one of defendant’s dogs, was unable to show a prior vicious propensity and instead argued that the realtor’s warning gave rise to an enhanced special duty which, the plaintiff contended, would give rise to liability under a theory of common law negligence. The Court declined to follow the plaintiff’s argument and affirmed the dismissal of the complaint.
Interestingly, the Shaw case contained a dissent by Justice Peters who stated that under the fact pattern presented in Shaw, the negligence cause of action should be reinstated. Justice Peters was on the panel in Hastings, yet did not write a dissenting opinion as to the negligence issue, but instead joined in the unanimous decision that the Court should not disturb the present rule of law. Is this due to the fact that Shaw involved dogs (Companion Animals) versus Hastings which involved a Domestic Animal? Should different standards and higher duties of care be imposed on keepers of Domestic Animals with the often difficult to prove strict liability standard imposed on persons who harbor Companion Animals? Should all incidents involving animals where a person was merely negligent be actionable? Should we only apply a negligence standard when children are involved?
[1] Remember “Domestic Animal” (Ag and Markets §108(7) is not a “Companion Animal” (Ag and Markets §350(5).
[2]Apparently, the First Department will not find an enhanced duty and refuses to impose liability under common law negligence where a defendant merely fails to ensure a gate is shut and an animal escapes, causing injury, see, Williams v. City of New York, 306 AD2d 203 (1st Dep’t 2003).
[3]Having grown up in an agricultural community, I ask “where were the parents?” Unfortunately, a question that cannot be resolved by the courts.
[4] §518
[5]It should be noted that the Third Department has expressly declined to follow this “class of animal” theory under the Restatement of Torts and has instead held that a particular breed of animal is alone insufficient to raise an issue of fact as to whether or not such animal has vicious propensities. See, Bard v. Jahnke, 16 Ad3d 896 (3rd Dep’t 2005) and its progeny.
[6]Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003), for a similar holding as to Domestic Animals, see, Bard v. Jahnke, 16 AD3d 896 (3rd Dep’t 2005)
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