Wolfgang Doerr v. Daniel Goldsmith / Cheryl Dobinski v. George O. LockhartWolfgang Doerr v. Daniel Goldsmith / Cheryl Dobinski v. George O. Lockhart
Lead Opinion
Memorandum.
In Doerr v Goldsmith, the order of the Appellate Division should be reversed, with costs, defendant Smith’s motion for summary judgment dismissing the complaint granted and the certified question answered in the negative. In Dobinski v Lock-hart, the order of the Appellate Division should be affirmed, with costs.
Under the circumstances of these cases and in light of the arguments advanced by the parties, Bard v Jahnke (
Finally, in Dobinski, the Appellate Division properly granted summary judgment to defendants with respect to plaintiff’s strict liability cause of action. Defendants carried their initial burden on summary judgment of establishing that they did not know of any vicious propensities on the part of their dogs. In response, plaintiff failed to demonstrate the existence of a triable issue of fact as to whether defendants had notice of the animals’ harmful proclivities, and consequently, defendants were entitled to summary judgment on plaintiff’s strict liability claim (see Petrone,
Concurrence Opinion
(concurring). In these two cases, we consider whether an individual injured by a domestic animal other than a farm animal may institute a negligence cause of action against the owner of the animal based on the owner’s alleged misfeasance in supervising or directing the animal. Like the majority (see majority mem at 1116), I conclude that a negligence cause of action does not lie under our long-standing
I
Doerr v Goldsmith
At about 7:00 a.m. on May 31, 2009, defendant Julie Smith and her boyfriend, defendant Daniel Goldsmith, were accompanied by Smith’s dog in Manhattan’s Central Park. The couple did not keep the dog on a leash, acting consistently with local regulations that permit a dog to remain off-leash in certain designated areas of the park from 9:00 p.m. to 9:00 a.m. (see Rules of City of NY Dept of Parks and Recreation [56 RCNY] § 1-04 [i] [2]). Smith, Goldsmith and the dog were near a section of the bicycle “loop” road that runs throughout Central Park. Specifically, Smith and Goldsmith were outside the roadway on opposite sides of the road, and Goldsmith was kneeling down and holding the dog in his arms, as if hugging it.
Meanwhile, plaintiff Wolfgang Doerr was riding his bicycle on the loop. As Doerr approached Smith and Goldsmith’s location, Smith bent down and clapped her hands on her knees, and she allegedly called the dog over to her. Doerr called out for Smith and Goldsmith to control the dog, but it was too late; as the dog crossed the street, Doerr hit the dog and was thrown from his bike, resulting in significant injuries.
Doerr commenced this personal injury action in Supreme Court by filing a complaint asserting a negligence cause of action against Smith and Goldsmith based on their having negligently “controlled and directed their dog into the path of the plaintiff.” Doerr did not set forth any strict liability cause of action or allege that the dog had a vicious propensity. As pertinent to this appeal, Smith answered and demanded discovery, including depositions. After discovery, Smith moved for summary judgment dismissing the complaint, arguing that Doerr could not bring a negligence cause of action based on injuries caused by a domestic pet because such claims are barred by the rule of Bard and Petrone v Fernandez (12 NY3d
A divided panel of the Appellate Division reversed Supreme Court’s order, granted Smith’s motion for summary judgment dismissing the complaint and directed the clerk to enter judgment accordingly (see Doerr v Goldsmith,
After the Appellate Division’s decision in Doerr, we handed down our decision in Hastings v Sauve (
The Appellate Division issued an order granting the reargument motion, vacated and recalled its prior decision, substituted a new decision, and denied plaintiff’s motion for leave to appeal (
“We recognize that the Hastings Court did not decide whether to apply the holding to dogs at that time. However, that should not be an impediment to denying summary judgment in this case. That is because this case is of an entirely different ilk than Hastings, Bard and Petrone. It is not about the particular actions of an animal that led to a person’s injury. Rather, it is about the actions of a person that turned an animal into an instrumentality of harm. Here, the dog was in the control of defendants at all times in the split second before the accident occurred. Had Smith not called the dog, and Goldsmith not let it go, plaintiff would have ridden past them without incident.
“[Smith’s and Goldsmith’s] actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence” (id. at 455).
Two Justices dissented, voting to reverse Supreme Court’s order and grant Smith’s summary judgment motion (see id. at 455-456 [Andrias, J., dissenting]). The dissent maintained that, in its previous decision in this case, the Court had not overlooked any material fact or principle of law that would warrant vacatur of the prior decision and order (see id. at 455). The dissent distinguished Hastings on the ground this Court had expressly limited its holding in that case to farm animals and left open the question of its application to domestic pets (see id. at 455-456). The dissent maintained that it would be inappropriate to extend Hastings’s holding to this case absent further guidance from this Court (see id. at 456).
Smith moved the Appellate Division for leave to appeal to this Court from that Court’s order denying her summary judgment motion, and the Appellate Division granted the motion and certified to us the question of whether its order was properly made (
On the morning of May 20, 2012, plaintiff Cheryl Dobinski and her husband were riding their bicycles on the shoulder of Route 98 in Franklinville. The Dobinskis reached an area of the road that was about 60 feet from the farm of defendants George and Milagros Lockhart. At approximately the same time, Milagros Lockhart released her husband’s two German shepherds from her house and onto the outdoor portion of the property. The dogs barked at the Dobinskis and ran into the road. About 10 seconds after the dogs were released, Cheryl Dobinski struck one of them, which caused her to flip over the front of her bicycle and suffer severe injuries.
Cheryl Dobinski initiated this personal injury suit in Supreme Court by filing a complaint which, as amended, asserted causes of action for negligence and for strict liability against the Lockharts. Dobinski claimed that, because the Lockharts had allowed their dogs to leave the farm and collide with her on the road, the Lockharts had been negligent in their failure to adequately supervise and restrain the dogs. Dobinski also argued that the Lockharts were strictly liable for the injuries caused by the dogs, as they had actual or constructive knowledge of the dogs’ harmful propensities, including the animals’ purported tendency to run onto the road. Dobinski further asserted that, by failing to restrain the dogs on the property, the Lockharts had negligently created and maintained a dangerous condition on their premises and, eventually, on the roadway. The Lockharts joined issue, and discovery commenced.
During discovery, Dobinski and her husband acknowledged that they did not have any prior familiarity with the dogs or their propensities. For their part, the Lockharts maintained that they had never received any complaints about these specific dogs or observed any vicious behavior from them. In fact, a neighbor averred she had never heard of any complaints against those two dogs or seen them interfere with traffic. The Lockharts acknowledged that, on two occasions — one before and one after Dobinski’s accident — two of their other dogs had run into the road and been struck by a car. George Lockhart further stated that he sometimes exercised the dogs involved in the accident by having them chase his four-wheeler at a relatively modest pace on his property, but never off the property. Additionally, while it was uncontested that German shepherds are a breed often used as guard dogs, there was no evidence that the Lockharts had used their dogs as guard dogs.
Supreme Court denied the Lockharts’ motion for summary judgment dismissing the amended complaint, finding that Dobinski had a viable negligence cause of action under Hastings. The court did not directly address Dobinski’s strict liability claim. The Lockharts appealed.
The Appellate Division unanimously reversed Supreme Court’s order, granted the Lockharts’ motion for summary judgment dismissing the amended complaint and dismissed the amended complaint (see Dobinski v Lockhart,
II
A
“For at least 188 years, the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” (Collier v Zambito,
In Bard v Jahnke (
Three Judges dissented, saying:
“Under the Restatement (Second) of Torts, the owner of a domestic animal who does not know or have reason to know that the animal is more dangerous than others of its class may still be liable for negligently failing to prevent the animal from inflicting an injury. This Court today becomes the first state court of last resort to reject the Restatement rule. I think that is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions” {id. [R.S. Smith, J., dissenting]).
The dissent surveyed the nineteenth century cases creating the strict liability rule and maintained that none of them foreclosed a negligence action, and the dissent opined that Hyland v Cobb (
We have consistently adhered to Bard in several subsequent cases, concluding that Bard’s prohibition against negligence actions arising from harms caused by domestic animals served to foreclose the plaintiffs’ negligence claims (see Bloomer v Shauger,
In Petrone, the plaintiff mail carrier saw that there was no fence around the yard in front of the defendant’s house, and the defendant’s Rottweiler was lying unrestrained in the yard (see id. at 547-548). Fearful of the dog, the plaintiff started walking away to her car, and when she turned around, she saw the dog running after her (see id.). The plaintiff ran away and jumped through the window of her car, injuring herself (see id.). The dog left the defendant’s property and reached the plaintiff, but it did not harm her (see id.). The plaintiff sued the defendant for negligence and strict liability, asserting, among other things, that the defendant’s failure to keep the dog contained on his property, as required by the local leash law, was proof of actionable negligence on his part (see id. at 549).
We rejected the plaintiff’s claims as she failed to prove the defendant’s prior knowledge of the dog’s alleged vicious propensity, saying, “defendant’s violation of the local leash law
In Smith, we similarly addressed an allegation of negligent supervision of a domestic animal other than a farm animal. There, the principal plaintiff was riding his bicycle when the defendant’s dog ran into the road and collided with the plaintiff, propelling him over the handlebars of the bike and injuring him (see Smith v Reilly,
Subsequently, in Hastings, we considered an unusual variant of negligent animal control which implicated an individual’s overlapping responsibilities as an owner of farmland and an owner of farm animals. There, the plaintiff was driving her van and hit the defendants’ cow, which had wandered off their
We unanimously decided that the defendants were not entitled to summary judgment and “h[e]ld that the rule of Bard v Jahnke does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept” (id. at 124 [citation omitted]). We took care not to disturb the Bard rule, instead explaining that the Bard line of cases addressed claims of “aggressive or threatening behavior by an[ ] animal” (id. at 125) — in other words, claims that the owners of domestic animals engaged in negligent conduct by failing to adequately suppress the animals’ harmful behavior. By contrast, we noted, the case before us involved a claim that was “fundamentally distinct from the claim made in Bard and similar cases: It is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal” (id.). In our view, the Bard rule had no bearing on the issue of a farm owner’s negligence in failing to keep his or her farm animals on the property, as applying the Bard rule in such circumstances would improperly “immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.). We
“therefore h[e]ld that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept,” and hence the plaintiff had a viable negligence claim against the defendants (id. at 125-126).
However, we cautioned that we were “not considering] whether the same rule applies to dogs, cats or other household pets” because “that question [had to] await a different case” (id. at 126).
On the same day we handed down our decision in Hastings, we faithfully applied the Bard rule in another case, rebuffing
On appeal to us, the plaintiff contended that the Appellate Division had erred in finding his showing of vicious propensity inadequate (see brief for plaintiff-appellant in Bloomer,
We were unmoved by the plaintiff’s requests that we overturn Bard or permit his negligence action to proceed on the premise that the defendant’s conduct, rather than the horse’s instinctive behavior, caused the horse to injure the plaintiff. In a memorandum decision issued on the same day as Hastings, we unanimously affirmed the Appellate Division’s order (see Bloomer,
“Under the rule of Bard v Jahnke (6 NY3d 592 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s Vicious propensity’ or ‘propensity to do any act that might endanger the safety of the persons and property of others’ (6 NY3d at 596-597 , quoting Collier [1 NY3d at 446 ]). No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of ‘behavior that is normal or typical for the particular type of animal in question’ (Bloomer v Shauger,94 AD3d 1273 , 1275 [2012])” (id. at 918).
Significantly, despite that a farm animal was involved in Bloomer, our decision there was fully consistent with both Bard and Hastings, as Bloomer did not involve Hastings’s unique intersection of the defendant’s obligations as a landowner and his obligations as the owner of a domestic animal.
B
Acknowledging that Bard and its progeny would otherwise preclude them from bringing negligence causes of action against defendants in these cases based on the injuries caused by defendants’ animals, plaintiffs in the cases at bar propose two potential bases on which they might avoid Bard’s prohibition against negligence liability. Plaintiffs’ theories are: (1) our holding in Hastings logically extends to cover domestic pets, such that the failure to properly restrain a dog or confine it on the owner’s property may create negligence liability; and (2) defendants’ affirmative negligent acts in using their dogs as instrumentalities of harm created negligence liability because, unlike in Bard and similar cases involving animals instinctively
Contrary to plaintiffs’ suggestion, our decision to impose liability on the owner of a farm animal in Hastings, based on the owner’s failure to keep the animal from wandering off his or her property, does not logically create a negligence cause of action for the failure to restrain a dog on one’s premises or in other locations. As we noted in Hastings itself, there is a “fundamental[ ] distinction]” (Hastings,
In other words, in New York, society has long recognized that the owners of farm animals have a duty to exercise reasonable care in keeping such exceptionally dangerous or errant creatures on the owners’ premises, and in Hastings, we recognized that duty in holding the defendant farm owner liable for his negligent failure to confine his cow on his property. Indeed, it is a matter of common expectation among people in
By contrast, the ownership of most domesticated non-farm animals does not naturally necessitate such a duty of care and restraint on the part of their owners because non-farm animals pose different risks than farm animals. Domestic pets are more apt to stay on their owners’ premises of their own volition as a result of the domestication and training that have been reinforced over the centuries of humanity’s near-familial relationship with its pets. And, few lawfully kept domestic pets reach the levels of size, aggressiveness and desire to wander that many farm animals do.
Furthermore, at least since our decision in Bard, New York society has had no reasonable expectation that all domestic pets will be perpetually confined in their homes or physically restrained at all times. Pet owners often take their pets to public places in close proximity to other people, both on leashes and off of them depending on the location, and the people in those areas have come to expect this phenomenon and to approach such situations with caution. The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received. In public parks, one regularly encounters dog owners with their unrestrained canine companions, whereas one almost never sees, and certainly never expects to see, someone taking his or her cow for a walk in the neighborhood. As Bard effectively holds, New York society has learned to adequately mitigate the perils of unrestrained pets by a combination of strict liability, statutory regulation and the prudence of those who approach these animals, without adopting a negligence cause of action based on the failure to supervise or restrain a domestic pet. Given the clear differences in the risks posed by farm animals and pets, there is no reason to extend the rule of Hastings to authorize negligence liability resulting from faulty supervision of a pet.
More fundamentally, plaintiffs’ proposed expansion of liability under Hastings would run directly counter to our precedents, including Petrone and Smith. After all, in Petrone we rejected a claim that negligence should lie where a dog owner allowed his dog to stray from his property and chase a
Following the reasoning of the Appellate Division majority in Doerr, plaintiffs in the instant cases now proclaim that Bard and its progeny do not preclude their negligence claims because defendants engaged in affirmative acts of control over their pets, whereas in the Bard line of cases, the animals injured people of their own volition after their owners failed to restrain them. But this argument does not withstand close scrutiny. To see the flaws in this direct-control-versus-failure-to-restrain theory, one need only look at the Appellate Division majority’s attempt to apply that theory in Doerr.
In Doerr, the Appellate Division majority tried to distinguish Bard and Petrone on the ground that defendant Smith, unlike the defendants in those cases, affirmatively used the dog as an instrumentality of harm by calling it to cross over the road to her; such a case “is not about the particular actions of an animal that led to a person’s injury,” the Appellate Division majority said, but rather “is about the actions of a person that turned an animal into an instrumentality of harm” (Doerr,
Stated differently, neither the calling of a dog across the road nor the release of a dog near the road can cause injury without the volitional conduct of the dog, thereby making the two actions comparable for purposes of negligence law. Where the owner calls the dog across the road, the dog still will not cross the road and into the path of a bicyclist without instinctively and willfully choosing to do so. If the dog ignores the owner’s call, as dogs are sometimes wont to do, no injury occurs. Likewise, if a dog is released from restraint at the side of a road, the dog may instinctively choose to wander into the way of a cyclist, to do nothing, or to wander away from the road, but only its choice, rather than the owner’s act of releasing it from its bonds, will result in any injury. In both scenarios, then, the dog’s volitional behavior ultimately creates the harm, and the owner’s act or omission does not cause the injury.
This is why, in Doerr, the Appellate Division majority’s assertion that the actions of Smith and her boyfriend in releasing and calling the dog across the biker’s path were akin to those of a couple tossing a ball across a roadway must fall flat (see Doerr,
Not only does plaintiffs’ proposed distinction between an omission of restraint and an act of control defy the practical realities of pet behavior, but it is also inconsistent with basic negligence principles. In that regard, the existence of liability for negligence generally does not depend on whether the negligent conduct of the tortfeasor is deemed an act or an omission, but rather on whether the individual violates a common-law duty to exercise reasonable care to prevent certain harms (see 79 NY Jur 2d, Negligence § 10; see generally Palsgraf v Long Is. R.R. Co.,
One of my colleagues, who dissents in Doerr only, deems the Appellate Division’s rationale in that case “not entirely satisfactory” (dissenting op in Doerr at 1142), yet offers a rephrased version of the same unsatisfactory rationale, declaring that “where a plaintiff sustains injury as the direct result of actions that a domestic animal took under the owner’s direction and control, a cause of action in negligence should lie” (id.). However, this proposed rule proceeds from the same premise, and hence suffers from the same logical flaws, as the Appellate Division’s decision. Again, where an owner calls to his or her animal, such that the animal is under the purported “direction and control” of the owner, the owner’s call still merely sets off a “chain of events” (dissenting op in Doerr at 1142) rather than a certain and direct accident.
To be sure, in Doerr, Smith seemingly attempted to control her dog by calling to it, and the dog did decide to cross the bike path after Smith made that call. But it does not follow that Smith had unquestioned command of the dog, or that the dog chose to cross the bike path at the moment of Doerr’s approach as a direct result of Smith’s command. For instance, Smith’s dog might have crossed the bike path because it was attracted to the appearance of the grass on the other side. The dog could have completely failed to hear Smith’s call over the din of a busy park, or misunderstood the order, and yet it still ran across the path because it was naturally inclined to run toward the area that it saw immediately in front of it. Perhaps the dog initially responded to Smith’s call prior to Doerr’s arrival on the scene, but then decided to move at a leisurely pace, lingering too long on the path to finish crossing before Doerr arrived.
In any of these scenarios, Smith might have hoped that the dog would choose to follow her command, but she did not know that it would, nor did she know that the dog would fail to dodge the oncoming bike or to otherwise proceed cautiously in response to her command. It is true that these various possibilities are speculative on this record, but so is the dissent’s supposition that Doerr’s injury was the “direct result” of Smith’s “direction and control” of the dog (dissenting op in Doerr at 1142). The most that can be said is that Goldsmith’s release of the dog enabled it to proceed unrestrained across the bike path, and that the dog crossed the path after Smith called to it. Ultimately, though, even if the dog decided to cross the path at its typical pace in order to please Smith, that was the dog’s choice. As we have repeatedly made clear in the Bard line of
Were this analysis of Doerr not already enough to show that plaintiffs are taking a flawed approach by advancing this act/ omission distinction, Dobinski’s belated and perplexing attempt to apply this theory to her case confirms that plaintiffs’ theory is unworkable. At oral argument before this Court, Dobinski’s counsel contended for the first time that Milagros Lock-hart’s conduct in releasing the dogs onto the exterior portions of her property 10 seconds before the accident constituted an affirmative act on her part, which could support negligence liability. At first glance, this would be a plausible argument if one were to adopt the affirmative act theory advanced by the Appellate Division in Doerr. When a pet owner lets a dog outside to run near the highway, he or she plainly sets an instrumentality of harm in motion just as much as if he or she had called the dog to the highway. As in the case of an owner ordering a dog to come, it is ultimately the dog’s decision to enter the roadway that causes harm to passersby, notwithstanding that the owner has enabled or encouraged the dog’s movement. That being so, Dobinski’s case stands on the same footing as Doerr’s under the act/omission distinction, and if plaintiffs were correct, negligence would lie in both cases. Yet the possibility that plaintiffs’ theory might create negligence liability in Dobinski shows that their proposal to distinguish the Bard line of cases in this way would soon lead to the abrogation of our precedent, for in Petrone and Smith, we rejected negligence liability in situations virtually identical to the one in Dobinski. Thus, the adoption of plaintiffs’ proposed affirmative act theory threatens to swallow Petrone and Smith whole.
Accordingly, plaintiffs’ efforts to extend the Hastings principle to this case and to distinguish the Bard line of cases are unavailing, and they do not assert any other grounds for declining to apply the Bard rule to their cases. Therefore, in my view, the rule of Bard controls these cases and bars plaintiffs’ negligence claims arising out of the injuries caused by defendants’ domestic pets.
Having disposed of plaintiffs’ contentions, there is no need to go further to resolve their negligence claims. Nonetheless, I note that, while refraining from any direct attack on the precedential force of Bard, plaintiffs make some passing criticisms of our decision in Bard at various points in their briefs. My colleagues, who dissent in both of the instant appeals rather than
Plaintiffs and the dissent seem to lament various aspects of Bard. As did the Bard dissenters, the plaintiffs and the dissent imply that Bard is inconsistent with our older case law, such as Dickson, which recognized a cause of action for the negligent failure to restrain horses and cows (see dissenting op in both cases at 1142-1147). Citing the dissent in Bard, plaintiffs note the alleged harshness of the Bard rule in denying recovery to plaintiffs who suffer animal-related injuries, and like the Bard dissent, plaintiffs and the dissent point out that New York is an outlier in rejecting the sort of negligence action endorsed by the Restatement (Second) of Torts in this context (see dissenting op in both cases at 1147-1149).
However, even if the issue of Bard’s continued status as precedent were properly before us — and it is not — I would not be convinced to overturn Bard based on the very arguments that we considered and rejected in that case. In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time (see People v Peque,
To be sure, plaintiffs’ and the dissent’s complaints about Bard are not baseless, but the same could be said of those criticisms when they were raised by the Bard dissent almost 10 years ago. Then, as now, we had issued decisions potentially permitting negligence actions against the owners of horses loosed from their confines — cases which can be squared with Bard and Hastings to the extent they involved farm animals (see Dickson,
Significantly, too, and contrary to the dissent’s assertions (see dissenting op in both cases at 1147-1149), the Bard Court’s evaluation of policy and precedent remains convincing. As noted, we decided Bard consistently with older decisions such as Dickson, which simply stand for the proposition, later reaffirmed in Hastings, that the owner of a farm animal — a horse in Dickson — is liable for negligently allowing such an animal to stray onto a public roadway (see Dickson,
My colleague dissenting only in Doerr points out that, in some unusual cases, the facts of the animal-related injury-causing occurrence will not fit comfortably within the confines of the vicious propensity doctrine announced in the aforementioned precedent (see dissenting op in Doerr at 1140-1142).
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. While I acknowledge that out-of-state courts that have addressed the issue have nearly uniformly recognized a negligence cause of action arising from the handling of all domestic animals, the same was true at the time Bard was decided (see Bard,
At bottom, regardless of our individual positions on the Bard rule, we should not revisit our adoption and consistent retention of the rule today, as neither plaintiffs’jabs at Bard nor the dissent’s concerns are sufficiently weighty to overcome critical considerations of stare decisis. A state’s highest court is, first and foremost, charged with creating a coherent body of settled law by which members of society may order their affairs. This mission inevitably reflects the policy choices of predecessor judges that decide an issue and thereby create a precedent, and is inevitably undermined if successor judges succumb to the very human impulse to cast aside or chip away at those rulings with which they simply disagree. Indeed, plaintiffs’ veiled criticisms of Bard call to mind a variation of an observation made by the author of the Bard dissent in a different context: “Essentially this argument [for rejecting the current rule] has been ably made by three dissenting Judges [and two concurring Judges] in two of our prior cases” in Bard and Petrone, “[b]ut I respectfully suggest that, at this late date, the question should be considered settled” (People v Giles,
In Dobinski, plaintiff Dobinski pleaded a strict liability cause of action in addition to her negligence claim. However, as the majority rightly concludes (see majority mem at 1116), Dobinski cannot proceed on her strict liability claim on this record because she did not sufficiently demonstrate that the Lock-harts were aware that their dogs had a propensity to run into the road and pursue bicyclists. In their motion papers and depositions, the Lockharts stated, without contradiction, that they had never known their dogs to run into the road or approach bicyclists, and their neighbor confirmed that the dogs had no known tendency to interfere with traffic. Thus, the Lockharts carried their initial burden on summary judgment of showing that they did not know of any vicious propensities of their dogs.
In response, Dobinski failed to create a triable issue of fact by showing that the Lockharts had notice of the dogs’ proclivity to harm others. Although Dobinski argues that the Lockharts trained the dogs to run after vehicles at high speed, the record shows that George Lockhart merely prompted the dogs to follow his four-wheeler from time to time at a slow pace for exercise purposes, and there is no evidence that the Lockharts trained their dogs to generally chase vehicles, including bicycles, outside their farmland or to chase vehicles at a high rate of speed. Nor does it matter that, in separate incidents before and after Dobinski’s accident, the Lockharts’ other dogs had run into the road, as those dogs’ propensities cannot demonstrate that the entirely different dogs at issue here had a tendency to harm others. Likewise, even if one were to assume that the Lockharts violated the local leash law, such a violation would only be some proof of negligence and could not establish strict liability (see Petrone,
Ill
Based on the foregoing observations, in Doerr, I vote to reverse the order of the Appellate Division, grant defendant Smith’s motion for summary judgment dismissing the complaint and answer the certified question in the negative. In Dobinski, I vote to affirm the order of the Appellate Division.
Chief Judge Lippman (dissenting in Doerr v Goldsmith and concurring in Dobinski v Lockhart). In Hastings v Sauve (
As we observed in Hastings, Bard had adhered to the traditional vicious propensities rule, which requires a plaintiff to demonstrate that an owner had knowledge that the animal’s behavior “reflect [ed] a proclivity to act in a way that puts others at risk of harm” (
To the contrary, the fact pattern in Hastings did “not involve aggressive or threatening behavior by any animal” and we viewed its claim — that both the owner of the cow and the owner of the property were negligent in allowing it to wander away — as “fundamentally distinct” from the claims made in the Bard line of cases (see Hastings,
Although the situation presented in Doerr is distinguishable from Hastings, in fundamental respects they are the same. The rule of vicious propensities should have no application here, where we are not faced with any aggressive or menacing animal behavior — quite the opposite, since defendant’s dog allegedly did exactly as she was told (see e.g. Bloomer v Shauger,
I would continue to adhere to the vicious propensities rule where it appropriately applies, which would appear to be the great majority of cases involving injuries caused by domestic animals. Indeed, as noted above, we have reaffirmed that holding several times in the recent past. 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.
The situation presented by Doerr, however, is distinct. Defendant did in fact control her dog, but allegedly was negligent in directing it into the path of the oncoming bicycle. The concurring opinion emphasizes a dog’s “volitional behavior” (concurring op at 1131) and I think we can all agree that a dog is not analogous to an inanimate object, as it has agency of its own. But people expend significant amounts of time and effort, and sometimes go to great expense, in an effort to train their dogs to be obedient. When those efforts are successful and the dog acts according to the owner’s command, that is not a vicious propensity, but should not necessarily result in the owner’s immunity from liability. As we recognized in Hastings, the vicious propensity rule does not cover every situation. By contrast to the above example of nonactionable canine greeting, were the owner to throw a ball towards the steps as the guest ascends
The rationale proffered by the Appellate Division below— that defendant should be held liable because her actions turned the dog into an instrumentality of harm — is not entirely satisfactory, as it could potentially encompass a much broader range of owner conduct. For instance, the owner in Dobinski could be seen as having launched an instrumentality of harm by letting her dogs run outside unleashed, thereby creating the opportunity for them to enter the road and injure the plaintiff. But there is a difference between setting in motion a chain of events, in the course of which an animal acts in a way that eventually injures someone, and directing the animal to engage in conduct that causes direct and immediate harm. In the first situation, the vicious propensities rule applies to the animal’s dangerous behavior. In the second, the fault should be attributed to the owner.
I would hold that, where a plaintiff sustains injury as the direct result of actions that a domestic animal took under the owner’s direction and control, a cause of action in negligence should lie. An exception to the vicious propensities rule is warranted under these circumstances. Indeed, a contrary rule automatically immunizing animal owners from the consequences of their own directions is too broad brush, as this situation is plainly distinguishable from our existing vicious propensities jurisprudence and contradicts any sensible logic.
Notes
. To the extent the Doerr dissent’s comment about a “chain of events” (dissenting op in Doerr at 1142) is a reference to the issue of proximate cause, that is simply beside the point here. In this Court and the courts below, the parties in Doerr have never framed the issue here as one of proximate cause,
. At oral argument in this Court, Doerr’s counsel, while not asking that Bard be overruled, requested a “broader ruling” in Doerr’s favor and made references to the Restatement rule, which may have been made in support of the contention in Doerr’s brief that the holding of Hastings should be broadened to cover his case. Even if counsel’s oral presentation could somehow be interpreted as a belated request to overrule Bard, it would be inappropriate for us to reevaluate the continuing validity of a recently reaffirmed precedent absent full briefing of the issue from both parties and any interested amici.
. Along these lines, I also reject the Doerr dissent’s suggestion that “[t]he rule of vicious propensities should have no application here, where we are not faced with any aggressive or menacing animal behavior” (dissenting op in Doerr at 1141). We have held that “vicious propensity” is a term of art which applies not only to aggressive or threatening behavior, but also to “propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Collier,
. Likewise, because plaintiffs in these cases did not allege that defendants committed any intentional or reckless torts, I do not opine on whether the owner of a domestic animal may be held liable for supervision of an animal undertaken with the intent to cause harm to another or with conscious disregard of a known and unjustifiable risk of harm to another.
Dissenting Opinion
(dissenting) In 2006, in Bard v Jahnke (
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Before Bard was decided, our Court’s decisions were consistent with the rule, set out in the Restatement (Second) of Torts § 518, that a plaintiff whose injuries were caused by a domestic animal may bring a negligence claim against the owner, as an alternative to an allegation that the owner is strictly liable.
Our precedents are illuminating. In Hyland v Cobb (
In Collier v Zambito (
At the time Bard was decided, three of the Departments of the Appellate Division recognized that a negligence claim for animal-induced injuries could be brought as an alternative to a strict liability claim.
The First Department held 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
“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, includes a duty to recognize the danger created by the presence of horses to which a small child could easily gain access, which danger, although obvious to adults, may not be appreciated by children. This duty may be satisfied in a number of ways: one might involve modifying the dangers presented by altering or adding to the fencing; another might involve appropriately warning the children of the risk” (Schwartz,255 AD2d at 40 [citation omitted]).
The Second Department assumed the existence of negligence claims for animal-induced injuries in St. Germain v Dutchess County Agric. Socy. (
“[t]he defendants, as providers of day care services . . . with the knowledge that a young child such as the plaintiff may interact with a dog in a fearless manner that befits a child’s lack of capacity to fully*1146 understand the foreseeable consequences of such conduct; that is, that such conduct may be injurious or threatening to the dog and, if so, that the dog, even a docile and well-trained one, may instinctively engage in defensive action such as biting” (id. at 40).
The Third Department, similarly, “recognized that, in some circumstances, a plaintiff who sustains injury due to the conduct of an unrestrained dog may pursue a negligence claim predicated on a defendant’s failure to comply with a local animal control ordinance” (McKee v J&J Otsego Props.,
At the time Bard was decided, only the Fourth Department adhered to a rigid rule that liability for animal-induced injuries “is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner’s keeping of the animal, despite his [or her] knowledge of the animal’s vicious propensities” (Plennert v Abel,
Based on the cases summarized above, the law in New York, before Bard was decided, may be distilled as follows. If you were injured by a dog and you believed the owner had been negligent in the manner he or she trained, restrained, or otherwise kept the dog, you could bring a cause of action in
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As the Supreme Court of Connecticut recently noted, “a large majority of the jurisdictions that have considered the issue have adopted the approach . . . taken by § 518 of the Restatement (Second) of Torts” (Vendrella v Astriab Family Ltd. Partnership,
The Connecticut Supreme Court adopted the Restatement position and held, as a matter of first impression, that
“ ‘one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if . . . he is negligent in failing to prevent the harm’ . . . regardless of whether the animal was roaming at large” (Vendrella,311 Conn at 328 , 87 A3d at 563, quoting Restatement [Second] of Torts § 518 [b]).
The court reasoned that “ [t] o conclude otherwise would undermine the policy considerations governing our tort system which include compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct” (Vendrella,
To the Connecticut Supreme Court’s lengthy catalog of decisions recognizing negligence actions for animal-induced injuries, as listed above, I would add the following rulings: Swerdfeger v Krueger (145 Colo 180, 183-184,
This review of the law of other jurisdictions identifies New York as a unique outlier in its rejection of the Restatement (Second) of Torts § 518.
m.
In Bard, the plaintiff was injured by a bull that was permitted to roam freely around a dairy barn in order to impregnate cows. The defendant farm owner, Jahnke, had not mentioned the bull’s presence to plaintiff Bard, a carpenter who was doing repairs in the barn. Bard submitted the affidavit of an animal science expert, who opined that “bulls, in particular breeding bulls, are generally dangerous and vicious animals,” and that the farm owner should have either restrained the bull or warned Bard of its presence (Bard,
Then the Court considered plaintiff Bard’s alternative theory, premised on negligence, that, because the animal was a breeding bull housed with a herd over which he exercised dominance, Jahnke was negligent in failing to restrain the bull or warn strangers of his presence. Plaintiff Bard had relied on the Restatement (Second) of Torts § 518. More particularly, Bard had relied on two comments in this section of the Restatement. The first, “Knowledge of normal characteristics,” notes that “ [i]n determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics” (Restatement [Second] of Torts § 518, Comment g). The second, “Animals dangerous under particular cir
The Court rejected Bard’s reliance on the comments to the Restatement, on the ground that his theory was “no different from arguing that Jahnke was negligent in that he should have known of Fred’s vicious propensities” (Bard,
“We have never . . . held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, we have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class” {id. at 599).
Finally, the Court concluded the Bard decision by writing: “In sum, when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier” {id.).
The Collier rule, quoted earlier in the Bard opinion, is “that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” (id. at 596-597, quoting Collier,
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Less than two years later, the Court reiterated that “[i]n Bard v Jahnke . . . , we held that ‘when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier’ ” (Bernstein v Penny Whistle Toys, Inc.,
It is a measure of the degree to which this Court’s holding in Bard was questioned that, even after Bernstein, the Appellate Division could not bring itself to accept that Bard stood for the proposition “that a defendant’s prior notice of ‘vicious propensities’ is an absolute sine qua non to civil liability in all actions involving personal injuries caused by domestic animals” (Petrone v Fernandez,
This Court reversed in Petrone, invoking the Bard dissent’s description of the Bard rule as being “that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face — that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned” (Petrone v Fernandez,
More recently, this Court reviewed a case that tested the limits of its restrictive holding on actions alleging negligence by an animal owner. In Hastings v Sauve (
“While we are obligated to affirm Supreme Court’s dismissal . . . , we must note our discomfort with this rule of law as it applies to these facts — and with this result. There can be no doubt that the owner of a large animal such as a cow or a horse assumes a very different set of responsibilities in terms of the animal’s care and maintenance than are normally undertaken by someone who owns a household pet. 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.” (Hastings v Sauve,94 AD3d 1171 , 1173 [3d Dept 2012].)
This Court reversed, holding that Bard “does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept” (Hastings,
“To apply the rule of Bard — that ‘when harm is caused by a domestic animal, its owner’s liability is determined solely’ by the vicious propensity*1154 rule — in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id., quoting Bard,6 NY3d at 599 [citation omitted]).
In other words, the Court of Appeals now held that when the Bard Court used the word “solely,” it did not mean “solely,” and the Court created an ad hoc exception to Bard, for farm animals that stray. The prediction of the Bard dissenters that the decision had created “an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions” (Bard,
V.
“It is well settled that ‘[s]tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process’ ” (People v Taylor,
The “troublesome” consequences of Bard “on our jurisprudence” (Bing,
In addition, our trial courts have expressed serious discomfort with Bard (see e.g. Krieger v Cogar,
This strong inclination on the part of lower courts to carve out exceptions to Bard was of course exemplified again in Doerr. The First Department held, on reargument after our Court decided Hastings, that ordinary negligence principles apply if a case “is about the actions of a person that turn[ ] an animal into an instrumentality of harm” (Doerr v Goldsmith,
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Nevertheless, the Court now reasserts Bard, and declines to extend Hastings, despite the striking similarities between Hastings and one of the cases before us, Dobinski v Lockhart. In my view, Dobinski raises the same question whether “a landowner or the owner of an animal may be liable under ordinary tort-law principles” when his animal, usually kept on his farm, “is negligently allowed to stray from the property on which the animal is kept” (Hastings,
The concurring opinion now supplies, for the first time, some discussion of the policy considerations missing from Bard and its immediate progeny, opining that “[a]bsent awareness of a domestic animal’s previously demonstrated tendency to harm others, the owner should not bear the costs of the animal’s instinctive decisions” (concurring op at 1137). This reasoning loses sight of the fact that it is the owners of domestic animals, and only their owners, who have the “expertise and opportunity to foresee and control hazards, and to guard properly against their own negligence and that of their agents and employees” (Vendrella,
The concurring opinion argues that “[t]he average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received” (concurring op at 1129). Perhaps this is a reference to an encounter such as occurred to plaintiff Doerr in Central Park, where the pet that caused injury was in the company of its owner. It is certainly not true, either in Franklinville or in Manhattan, that the average citizen expects to encounter unrestrained and unaccompanied dogs, running loose among traffic, that may either keep to themselves or else “harm others depending on . . . disposition . . . and . . . training” {id.). The ubiquity of “ordinance [s] restricting dogs from running at large . . . suggest[s] that, whatever may have been the expectation in an earlier, more agricultural age, it is no longer expected that dogs will roam the highways of this State at will” (Young,
I would adopt the Restatement doctrine: that even if the owner of a domestic animal has no reason to believe the animal abnormally dangerous, the owner will still be subject to liability for harm done by the animal if he or she is negligent in failing to prevent that harm. This is a clear, reasonable and equitable rule that reflects the law in most states and corresponds to the majority position in New York before Bard.
Accordingly, in Doerr, I would affirm the order of the Appellate Division that affirmed Supreme Court’s order denying defendant’s motion for summary judgment. In Dobinski, I would reverse the order of the Appellate Division that reversed Supreme Court’s order denying defendants’ motion for summary judgment. There are triable issues of fact concerning defendants’ negligence, given their practice of allowing their dogs to run at large without a leash (see Local Law No. 1 (2005) of Town of Franklinville §§ 5 [a]; 4 [g] [relating to the control, confining and leashing of dogs]), the proximity of their farm to a busy road, and their habit of encouraging the dogs to run behind wheeled vehicles, in the form of their “four-wheeler” all-terrain vehicles. Consequently, defendants’ summary judgment motion should have been denied in Dobinski.
In Dobinski v Lockhart: Order affirmed, with costs, in a memorandum.
. The Restatement (Third) of Torts preserves the doctrine:
“Many animals, while lacking the element of abnormal danger that justifies strict liability, still involve some level of risk, especially when the animal is brought into various societal settings. In light of that risk, the animal owner can potentially be held liable under the . . . negligence standard for physical or emotional harms . . . Thus, the owner of a horse who takes the horse into a city street can foresee all kinds of ways in which the horse, if not attended to, might respond to the instincts common to horses and in doing so bring about an injury. For example, if frightened the horse might bolt and injure a person standing nearby. Accordingly, the owner can be found negligent for not properly restraining the horse. Similarly, the friskiness of dogs can create a variety of risks that the possessor of the dog, under negligence law, should make reasonable efforts to control. The dog’s possessor might be aware that children are playing with the dog in a way that might induce in the dog a harm-causing response. If so, the owner can be found negligent for not making a reasonable effort to intervene. The mere fact that a dog approaches people in a somewhat threatening way ordinarily does not suffice to show that the dog is abnormally dangerous. However, depending on the circumstances, it may be foreseeable that a frightened person will suffer injury while attempting rapidly to retreat. When this is foreseeable, the negligence standard may require certain precautions on the part of the owner.” (Restatement [Third] of Torts: Liability for*1144 Physical and Emotional Harm § 23, Comment i [“Negligence liability”] [2010].)
. For the opposite proposition, the Connecticut Supreme Court cited only two cases: our decision in Bard and Searcy v Brown (
. Notably, the concurring opinion does not rule out the possibility that an exception to Bard would apply when a defendant’s supervision of a dog or other domestic animal is “undertaken with the intent to cause harm to another or with conscious disregard of a known and unjustifiable risk of harm to another” (concurring op at 1139 n 4).