In Scavetta v. Wechsler, 2017 NY Slip Op 01985 (1st Dep't 2017), and O'Hara v. Holiday Farm, 147 AD3d 1454 (4th Dep't 2017), the First and Fourth Departments, respectively, affirmed decisions dismissing the lawsuits, both of which arose out of injuries caused by domestic animals. While both cases follow established law, the Scavetta court suggested the exception applied in O'Hara should be expanded beyond just farm animals.
In O'Hara, the plaintiff was injured when her vehicle collided with a horse owned by defendant. The horse, which was boarded at a professional stable, had escaped from its stall and entered the roadway. Generally speaking, an owner of a domestic animal is only liable for injuries caused by the animal where the animal had vicious propensities known to the owner. However, where a farm animal has been allowed to stray from the property where it is kept, courts have applied an exception allowing a suit for negligence to proceed. See Hastings v. Suave, 21 NY3d 122 (3d Dept. 2012). The court in O'Hara applied this exception – but still found that the horse owner was not liable because the "animal's presence on the [road] was not caused by [her] negligence." The record established that the defendant was not in exclusive control of the horse or the stall where the horse was kept. Accordingly, even though plaintiff was not limited to establishing liability under a vicious propensity theory, defendant was not liable because she was found to have been free from negligence.
Meanwhile, in Scavetta, the First Department reluctantly affirmed the lower court's dismissal of a lawsuit filed by a man who was knocked down by a bike rack being dragged by a dog. Here, the defendant tied his 35-pound dog to a 5-pound bike rack outside of a pizzeria in Manhattan. The defendant failed to ensure that the bike rack was secured. As the defendant entered the pizzeria, his dog took off running "very fast" in a "panicked" state, dragging the bike rack in tow. The plaintiff was walking nearby and as he attempted to help the dog, his leg got tangled in the rack and he was knocked over, injuring his leg.
The lower court, constrained by the current state of the law on domestic animal liability, granted the defendant's motion to dismiss. As restated by the First Department, the law is that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule. . . of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities." Thus, because there were no known vicious propensities here, the First Department affirmed the dismissal. The exception to the vicious propensity rule which allows for a negligence cause of action, (which was applied in O'Hara) was not available here because that exception is only applicable to farm animals.
Significantly, the court indicated that were it not bound by precedent, it would not have affirmed the dismissal. Judge Acosta, for a unanimous panel, wrote that the current rule "immunizes careless supervision of domestic animals by their owners and leaves those harmed in the state of New York without recourse." Such a rule essentially permits pet owners to "act in any number of objectively unreasonable ways when supervising their non-vicious pets." The First Department suggested that like the exception applied in O'Hara, there should be an exception allowing a negligence cause of action where a dog is tied to an "unsecured, dangerous object, allowing the dog to drag the object through the streets and cause injury to others."