animals and negligence - what every attorney should know 2012

"Animals and Negligence" - What every attorney should know.

Jonathan G. Schopf, Esq.21 Everett Road ExtensionAlbany, New York 12205

518 489-1098 x 13www.theanimalattorney.com

www.theanimalattorney.blogspot.comwww.vincelettelaw.com

Types of Negligence Cases

• Vet Malpractice• Property Damage• Premises Liability• Automobile Accidents • Bites (most common)• Negligent Supervision• Failure to Warn• Falls from Horses (second most common)• Kicks

Elements of Negligence

• Duty• Breach of Duty• Proximate Cause between injury and action• Damages

Vicious or Dangerous Propensities

• In New York a cause of action exists in strict liability, with no proof of negligence required on part of the plaintiff, where a person keeps (harbors) an animal with notice of the animal’s vicious propensities and such animal injures a plaintiff.

• This liability is imposed regardless or ownership.• The plaintiff is required to present proof that the

defendant had knowledge of the vicious propensity or that a reasonable person would have discovered it – Palumbo v. Nikirk, 59 AD3d 691 (2nd Dep’t 2009).

Allegations• A complaint should allege:– Facts;– Statement that the defendant knowingly harbored the animal;– Statement that the defendant had knowledge of the propensities;– Statement that the defendant should have had knowledge of the

propensities;– Statement that the animal injured the plaintiff;– Statement that the plaintiff was lawfully on the defendant’s

property, in a public place or lawfully on other property;– Statement that the injury rendered the plaintiff sick, sore, lame,

etc..– Spousal or other derivative claim.

Affirmative Defenses

• An affirmative defense can be asserted which states that the defendant was not keeping or harboring the animal.

• An affirmative defense can be raised that the animal was being tormented, teased or abused – Leiner v. Fist Wythe Ave. Service Station, 121 Misc. 2d 559 (NYC City Ct. 1983), affirmed, 127 Misc. 2d 794.

• An affirmative defense can be raised that the plaintiff himself had knowledge of the animal’s propensities and brought the injury upon himself – Seiden v. A. Silmac Glass Co., 251 AD2d 141 (1st Dep’t 1998).

• Express and implied assumption of the risk should be raised. CPLR 1411 and 3018(b).

Summary Judgment – Owner’s lack of knowledge

• Animal’s breed is not automatically determinative of viciousness – Rivers v. NYC Housing Authority, 264 AD2d 342 (1st Dep’t 1999).

• Behavior which caused injury was not inherently vicious. Horse that was known to be difficult to handle, for example – Timpanaro v. Topping Riding School, 575 NYS2d 933 (1991).

• Animal has never shown vicious propensities or the animal’s past behavior does not amount to a vicious propensity (barking at neighbors)

• Natural reaction on part of animal is not a vicious propensity. Cat will bite when grabbed by the scruff of the neck – Wignes v. Bottger, 518 NYS2d 936 (1987).

• Complaint was dismissed in action to recover for injuries sustained from dog bite since bite alone, without provocation, and breed alone, was not sufficient to raise question of fact as to vicious propensities; defendant and his girlfriend testified that they did not experience any problems with dog prior to biting, and specifically that dog did not display any act of aggression immediately prior., Malpezzi v. Ryan, 28 AD3d 1036 (3rd Dep’t 2006).

• Whether or not the owner knew of the animal’s propensities should be viewed and presented as an issue of fact (especially if you have the plaintiff).

Direct contact with animal not necessary for liability to attach

• Example: Vicious dog is chasing a person who runs into a road to avoid the dog and is struck by a car.

• Polard v. United Parcel Service, 302 AD2d 884.

Can you / should you plead negligence?

• There is a split between the departments as to whether a plaintiff can recover for ordinary negligence .

• First and Second Departments permit recovery. Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t 2000) and Colarusso v Dunne, 286 AD2d 37 (2nd Dep’t 2001)

• Third and Fourth do not.• Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003)

describes these differences.

• Courts have held that in limited circumstances a theory of recovery for ordinary negligence may permit recovery.

• Must be a distinct act that the defendant should have done or not done or a special enhanced duty of care.

• For competing views of claims for injuries caused by agricultural animals compare St. Germain v. Dutchess County Agriculture Society, 274 AD2d 146 (2nd Dep’t 2000) and Bard v. Jahnke, 16 AD3d 896 93rd (3rd Dep’t 2005).

• Colarusso v. Dunne, 286 AD2d 37 (2001). Child bitten by 75lb dog which was permitted to freely wander around owner’s daycare facility. Issue of fact existed as to whether infant’s actions and dog’s response were foreseeable.

• Note, a child under 4 years old is incapable of being responsible for his or her own actions, as a matter of law, and the jury may be so instructed. Smith v. Sapienza, 115 AD2d 723 (2nd Dep’t 1985).

“Beware of Dog” Signs

• Beware of Dog signs without more, or a prior determination, does not establish a propensity for dangerousness, especially in the Third Dept., Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003) and Smedley v. Ellinwood, 21 AD3d 676 (3rd Dep’t 2005).

• Jury may consider the sign, but it is not sufficient by itself to create a propensity. The same applies for animals that are chained or caged on a routine basis.

Premises / Landlord Liability• Landlord who is aware of vicious propensities has a duty to

protect the public from the animal. Bates v. Constable, 4 Misc3d 810 (2004).

• A tenant who harbors a dangerous dog, even for security purposes, will be held strictly liable to third persons for injuries, as will a landlord who has leased the apartment with knowledge of the propensities and does nothing to protect the public. Strunk v. Zoltanski, 62 NY2d 572 (1984).

• If the landlord has no knowledge, actual or constructive, there is no liability imposed. Meyers v. Haskins, 140 AD2d 923.

• Liability will not be imposed on the landlord where the attack occurs off the rented premises. Terrio v. Daggett, 208 AD2d 1163.

Transfer of ownership

• No liability will attach to a prior owner for injuries caused post-transfer IF the owner informed the person of the animal’s dangerous propensities.

• Hosmer v. Carney, 228 NY 73.

Every dog gets one bite theory

• Not in New York• Perrotta v. Picciano, 186 AD 781 (1st Dep’t

1919) and its progeny.

Breed or type “discrimination”

• Evidence of the inherent propensities of one particular breed of animal is inadmissible, Bohm v. Nystrum, 208 AD2d 668 (dog).

• Landes v. H.E. Farms, Inc., 169 AD2d 446 (horse).

• Bard v. Jahnke (bull).

Farm Animal Negligence

• A case of negligence can be made and maintained against the owner of a horse or cow which is unsupervised or uncontrolled on a public road, where the animal causes damage to or collides with a person or vehicle. Johnson v. Waugh, 244 AD2d 594 (3rd Dep’t 1997).

• Theory being that horses do not wander on roadways absent negligence.

• Presumption is rebuttable if it is shown that the animal’s wandering is not caused by the owner’s negligence.

Wild Animals and Negligence

• Owner or keeper of a wild animal has an absolute duty to prevent animal from injuring persons or property.

• Exemptions exist for common carriers and municipalities or society charged by the legislature to maintain a zoo (does not apply to a zoo run for profit).

• Reasonable care is the standard for these exceptions.

Questions