Bloomer v. Shauger

• Decision Date: 12 April 2012
• Citation: 942 N.Y.S.2d 277,94 A.D.3d 1273,2012 N.Y. Slip Op. 02740
• Parties: Robert BLOOMER, Appellant, v. Christine M. SHAUGER, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02740
94 A.D.3d 1273
942 N.Y.S.2d 277

Robert BLOOMER, Appellant,
v.
Christine M. SHAUGER, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 12, 2012.

[942 N.Y.S.2d 277]

Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (John G. Rusk of counsel), for appellant.

Law Offices of Theresa J. Puleo, Syracuse (P. David Twichell of counsel), for respondent.

Before: LAHTINEN, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.

EGAN JR., J.

[94 A.D.3d 1273] Appeal from an order of the Supreme Court (Zwack, J.), entered November 12, 2010 in Ulster County, which, among other

[942 N.Y.S.2d 278]

things, granted defendant's motion for summary judgment dismissing the complaint.

In 2003, defendant acquired two American Quarter horses, Whiskey and Topper. The horses, previously owned by defendant's deceased brother, had been companions for more than two decades and, by all accounts, would become agitated whenever they were separated from one another. Additionally, according to defendant, Whiskey and Topper were “barn sour”—meaning that they would not go inside a barn or enclosed structure—and, as a result, were kept in a small paddock on defendant's property.

Topper unfortunately fell ill in January 2008 and, two months later, after discovering Topper unable to stand, defendant contacted her veterinarian and arranged to have him put down—a task performed inside the paddock and in full view of Whiskey. Shortly thereafter, defendant contacted her nephew, David Edwards, and asked that he assist her in burying Topper. Edwards, utilizing a skid steer equipped with a backhoe, thereafter began digging Topper's grave inside the paddock—where Whiskey still remained. During all of this, Whiskey was observed pacing back and forth, whinnying and searching for Topper.

Although the parties debate precisely what transpired next, defendant has assumed—for purposes of the underlying motions—that plaintiff's version of the ensuing events is true. In this regard, plaintiff—who lived next door—testified at his examination before trial that upon arriving home from work, he heard the sound of digging and walked over to defendant's property to see what was going on. Upon learning of Topper's passing and viewing the limited progress made by Edwards with the skid steer, plaintiff climbed aboard and finished digging the grave. As plaintiff prepared to inter Topper, Whiskey was “[f]rantically pacing” in the paddock, prompting defendant to [94 A.D.3d 1274] leave the area in search of a lead line.¹ While defendant was gone, plaintiff crouched down next to Topper and began petting him. This gesture seemed to calm Whiskey, who approached and rested her chin on plaintiff's left shoulder. As plaintiff reached up with his left hand and grasped Whiskey's halter, defendant approached, reached across both of them with the lead line in hand and spooked Whiskey, who pulled her head back. In the process, the middle finger of plaintiff's left hand caught in one of the metal rings on the halter, resulting in a significant injury that required surgical intervention.

Plaintiff thereafter commenced this action against defendant setting forth causes of action sounding in negligence and strict liability. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion and cross-moved for summary judgment. Supreme Court thereafter granted defendant's motion and denied plaintiff's cross motion, prompting this appeal.

We affirm. Preliminarily, Supreme Court properly dismissed plaintiff's negligence claim as New York no longer “recognize[s] a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” ( Curbelo v. Walker, 81 A.D.3d 772, 774, 916 N.Y.S.2d 645 [2011]; see

[942 N.Y.S.2d 279]

Vichot v. Day, 80 A.D.3d 851, 852, 913 N.Y.S.2d 838 [2011] ). ² Although this Court recently expressed its discomfort with this rule ( see Hastings v. Sauve, ––– A.D.3d ––––, ––––, 941 N.Y.S.2d 774, 2012 N.Y. Slip Op. 02535, *2–3 [2012] ) and defendant's conduct on the day in question indeed may have evidenced some negligence on her part ( see note 5, infra ), the Court of Appeals has made its position clear ( see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009]; Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; Collier v. Zambito, 1 N.Y.3d 444, 446–447, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ); therefore, we are constrained to view this matter solely in the context of strict liability.

In this regard, “[i]t has long been the rule 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” ( Seybolt v. Wheeler, 42 A.D.3d 643, 644, 839 N.Y.S.2d 830 [2007] [internal quotation marks and citations omitted]; accord Barone v. Phillips, 83 A.D.3d 1523, 1523–1524, 921 N.Y.S.2d 453 [2011]; see Petrone v. Fernandez, 12 N.Y.3d at 550, 883 N.Y.S.2d 164, 910 N.E.2d 993). The term “vicious propensities,” in turn, includes “the [94 A.D.3d 1275] propensity to do any act that might endanger the safety of the persons and property of others in a given situation” ( Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [internal quotation marks and citation omitted]; accord Alia v. Fiorina, 39 A.D.3d 1068, 1069, 833 N.Y.S.2d 761 [2007] ). To that end, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” ( Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; accord Krieger v. Cogar, 83 A.D.3d 1552, 1553, 921 N.Y.S.2d 767 [2011]; Barone v. Phillips, 83...