OPINION OF THE COURT
Over the years, the intersection of animals, people and the law has spawned a tort recovery doctrine known as the rule of vicious propensity (see, Benoit v Troy & Lansingburgh R. R. Co.,
In most circumstances, application of the rule of vicious propensity provides a proper balance between society’s need to protect innocent parties injured as a result of the activities of domestic animals, and the need to limit the legal responsibility of their owners, imposing responsibility only where the animal’s harmful activities have been brought home to its owner’s attention. Once that has been proved, a rule of strict liability in tort applies to the owner. Otherwise, the defendant will prevail.
The issue presented to us on this appeal is whether harm caused by animals not known to have vicious propensities is ever compensable under the law of this State.
Here, a young lad of approximately four years of age crawled under an electrified fence surrounding a corral at a horse farm where he and his family were tenants. He was trying to pet one of the horses, a gelding named Chestnut. While Chestnut was walking toward the barn, he kicked the boy in the head, causing severe brain damage, for which his parents commenced a lawsuit against the owners of the horse farm and the owner of the horse.
All defendants moved for summary judgment dismissing the action. Chestnut’s owner contended that the horse has never
From the facts presented, it appears that plaintiffs would be hard pressed to overcome the barriers to recovery presented by application of the doctrine of vicious propensity. Nevertheless, the particular factual circumstances of this case permit us instead to consider this matter from the vantage point of the common-law principles of negligence. We therefore affirm, agreeing with the IAS Court that the common-law vicious propensity rule does not protect the landowner defendants, because other standards of conduct apply.
In a number of other jurisdictions, the strict liability rule of vicious propensity is viewed as co-existing with certain types of claims alleging negligence in the care and maintenance of an animal that causes damage. For instance, in Arnold v Laird (94 Wash 2d 867, 871,
Another line of reasoning, pertinent here, would permit liability under Restatement of Torts § 518 to be predicated on “the failure to warn of a dangerous propensity which is normal to the particular class of animal” (Vigue v Noyes, 24 Ariz App 144, 147,
New York has repeatedly rejected application of a negligence standard when injury was caused by domestic animals; rather, in such cases discussion generally begins and ends with consideration of whether the animal in question was known to have vicious propensities (see, e.g., Brown v Willard,
Nevertheless, we conclude that in certain limited circumstances, claims of injury caused by animals may be based upon a theory of negligence rather than upon the strict liability resulting from the vicious propensity rule. We begin with the Restatement’s suggestion that even where an owner has no knowledge of an animal’s dangerous propensities, the owner may be liable for harm done by a domestic animal, if the owner “is negligent in failing to prevent the harm” (Restatement [Second] of Torts § 518 [b]).
Of course, in view of this State’s broad use of the vicious propensity rule to the exclusion of ordinary negligence claims, a cause of action grounded in negligence may not be based merely upon the failure to prevent the complained-of misbehavior by the animal. The owner of a domestic animal, absent prior indications of a problem, has no particular duty with respect to that animal’s behavior toward visitors in the home. Before our courts may consider a negligence claim concerning the behavior of an animal, there must be some other distinct act that the defendant should have done or refrained from doing under the particular circumstances, or some distinct, enhanced duty.
It is instructive to note that in Brown v Willard (supra), the Court recognized that some conduct by domestic animals, particularly horses, may still give rise to a negligence claim. There, the claim was based on conduct of a horse within its corral, the plaintiff claiming that the owner of the horse had negligently left it unattended and unhitched. In rejecting the claim, the Court distinguished the case presented from cases in which the owner of a horse was negligent when the horse, uncontrolled, caused damage on a public street (Brown v Willard,
The question to be answered, therefore, is whether the law imposes on the landowner defendants, under the circumstances presented, any duty beyond the duty to keep the horse corralled. Here, as the motion court correctly concluded, the allegations support a claim that the landowner defendants breached a duty owed to plaintiffs because a property owner owes an enhanced duty to ensure the safety of a young child living on the premises when he knows that something on the property poses a danger to the child.
Of course, a property owner has the right to use his property as he sees fit. However, if in doing so he creates or permits dangerous activities, instrumentalities, or conditions to exist on the premises, he must take reasonable measures to prevent injury to those whose presence on the property can be reasonably foreseen (see, Scurti v City of New York,
When a dangerous condition is apparent, the need to warn is normally obviated (see, Brzostowski v Coca-Cola Bottling Co.,
Notwithstanding the landowner defendants’ argument that the law treats horses as domestic animals rather than as dangerous instrumentalities, the presence of a horse on property where small children are known to be present constitutes a particular danger to young children, warranting imposition of a further duty to provide protections. We need not ignore the fact that by virtue of their size alone, horses in their normal activities pose a distinct type of threat to small children who are unaware of the hazards they present, distinguishable in
In recognizing that horses fascinate many young children, we are not resurrecting, or even referring to, the discredited “attractive nuisance” doctrine, which in any case only applied to trespassing children (see, Morse v Buffalo Tank Corp.,
Therefore, we hold that when young children are known to be present, the landowner’s normal duty, i.e., to maintain its premises in a reasonably safe condition in view of all the circumstances (see, Basso v Miller,
The motion court was therefore correct in concluding that issues of fact were presented as to whether the landowner defendants provided adequate protection for the child, precluding a grant of summary judgment in their favor.
Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered June 23, 1998, which denied the landowner defendants’ motion for summary judgment, should be affirmed, without costs.
Ellerin, P. J., Rubin and Mazzarelli, JJ., concur.
Order, Supreme Court, New York County, entered June 23, 1998, affirmed, without costs.