DiGrazia v. Castronova

• Decision Date: 06 June 1975
• Citation: 368 N.Y.S.2d 898,48 A.D.2d 249
• Parties: Christopher DiGRAZIA, an infant under the age of 14 years, by his parent and natural guardian Philip DiGrazia and Philip DiGrazia, Individually, Appellants, v. Anthony J. CASTRONOVA and Frances Castronova, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 898

368 N.Y.S.2d 898

48 A.D.2d 249

Christopher DiGRAZIA, an infant under the age of 14 years by his parent and natural guardian Philip DiGrazia and Philip DiGrazia, Individually, Appellants, v. Anthony J. CASTRONOVA and Frances Castronova, Respondents.

Supreme Court, Appellate Division, Fourth Department.

June 6, 1975.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester, for appellants (Benjamin, R. Pratt, Jr., Rochester, of counsel).

Lines, Wilkens, Osborn & Beck, Rochester, for respondents (Thomas C. Burke, Rochester, of counsel).

Before MARSH, P.J., and MOULE, CARDAMONE, GOLDMAN and WATMER, JJ.

OPINION

GOLDMAN, Justice:

In this personal injury action based on a dog bite incurred by the infant-plaintiff, the jury returned a verdict of no cause for action in favor of defendants-respondents Castronova, owners of the dog. The six-year old infant Christopher DiGrazia (Christopher) and his father, Philip DiGrazia, appeal on the grounds that their motion for a directed verdict should have been granted, that the verdict was against the weight of the evidence and that the court erred in its charge, particularly the instruction concerning contributory negligence and the denial of a requested instruction concerning the dog's alleged vicious propensities.

The underlying facts are for the most part not seriously disputed. The parties lived across the street from each other. The infant-plaintiff was a playmate of defendants' eight-year old son, Tommy, and the children visited with each other at both homes. The defendants owned a dog named Sam which they had restrained by tying him to a run near the garage by means of a 10-foot chain. On July 1, 1972, when the defendants were away from the house, the children were playing in defendants' driveway. Christopher stopped to pet the chained dog and when the animal growled, Christopher walked away. His friend Tommy testified that he told Christopher that when the dog growled '(h)e's not in the mood to be petted at all'. Tommy further stated that Christopher went back a second time and walked away again when the dog growled, but that on a third occasion 'he went back up again and he was starting to get away and the dog bit him'. A portion of the examination before trial of defendant Frances Castronova was read into evidence. She stated that about three months before the biting incident in the instant case the dog had bitten another child and in answer to the question '(H)ad he bitten just one person', she responded 'no'. As a result of the bite the infant-plaintiff suffered three facial wounds which have left three permanent scars.

The facts in this record presented a close question of liability for the jury's determination. The inadequacy of the court's instructions on the question of contributory negligence prevented the jury from considering the facts in accordance with applicable principles of law. In his charge on two occasions the court repeated that the 'plaintiffs in this case have the burden of proving by a fair preponderance of the credible evidence * * * that the plaintiff was free from contributory negligence'. Although we agree that this is hornbook law when a living plaintiff seeks to recover in the usual negligence action, the rule cannot be charged so categorically in a vicious dog case. 'In this type of action, contributory negligence in its usual sense is not involved. The liability is absolute unless the plaintiff with full knowledge of the evil propensity of the dog either wantonly excites the dog or voluntarily puts himself in the way of the dog thereby bringing the injury upon himself' (Scharf v. Manson, 27 A.D.2d 613, 614, 275 N.Y.S.2d 629, 631). The court in Scharf cited as authority for this statement Muller v. McKesson, 73 N.Y. 195 which, although decided nearly 100 years ago, remains the controlling precedent. Muller, after expressing the principle of absolute liability, stated on page 202: '(b)ut as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved with notice of the character of the animal, which would establish that the person injured voluntarily brought the calamity upon himself.' (See, also, People v. Sandgren, 302 N.Y. 331, 339, 98 N.E.2d 460, 464; 2 Restatement, 2d, Torts, § 484.) Thus, the trial court in this case should have instructed the jury that the contributory fault of the injured boy was a matter of defense and not an affirmative element of plaintiff's case. In considering the evidence on this crucial issue, the jury should have been charged that the defendants had the burden of proving that the injured plaintiff had full knowledge of the dog's character and voluntarily brought the injury upon himself (Muller v. McKesson, Supra, 73 N.Y. 201--202).

Although plaintiffs noted objection to certain portions of the charge and made requests to charge, which we will discuss below, appellants failed at the trial to object or except to the contributory negligence instructions. Prior to enactment of CPLR 4110--b, effective September 1, 1973, sections 4017 and 5501 of the CPLR governed exceptions to jury charges and appellate review of erroneous instructions. Under these sections failure to make one's objections known before the jury retires 'may restrict review upon appeal' (§ 4017), for only those charges, or refusals to charge as requested, to which appellant objected are subject to review by the appellate court (§ 5501) (Guaspari v. Gorsky, 29 N.Y.2d 891, 892, 328 N.Y.S.2d 679, 680, 278 N.E.2d 913; Miles v. R. & M. Appliance Sales, 26 N.Y.2d 451, 454, 311 N.Y.S.2d 491, 494, 259 N.E.2d 913, 915; Clark v. Donovan, 34 A.D.2d 1099, 1100, 312 N.Y.S.2d 610, 611, app. dsmd., 31 N.Y.2d 661, 336 N.Y.S.2d 897, 288 N.E.2d 801). Despite such statute and holdings, it has also been held that in a proper case, in the interest of justice, the court may order a new trial, though no objection or exception was taken (Simmons v. Stiles, 43 A.D.2d 417, 418, 353 N.Y.S.2d 257, 259; Rivera v. W. & R. Serv. Sta., 34 A.D.2d 115, 117, 309 N.Y.S.2d 274, 276; Van v. Clayburn, 21 A.D.2d 144, 147, 249 N.Y.S.2d 310, 313). We find no case discussing the impact of CPLR 4110--b on the prior rule that the appellate court may review Fundamental errors in instructions notwithstandi appellant's failure to object or except at the proper time. The Report of the Judicial Conference which recommended enactment of the new section and simultaneous amendment of CPLR 4017 states that the new section is not intended to 'restrict the power of an appellate court, exercised under CPLR 4017, to consider, in its discretion and upon good cause shown, untimely objections to the charge' (1973 Legislative Annual 21, 22). One commentary has asserted that the new statute does not destroy the existing 'fundamental error' rule (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4017.09). We conclude, therefore, that, because of the critical significance of the contributory fault issue in the instant case, the error discussed above was fundamental and requires a new trial in the interest of justice and the exercise of discretion (cf. Estes v. Town of Big Flats, 41 A.D.2d 681, 682, 340 N.Y.S.2d 950, 951; Rivera v. W. & R. Serv. Sta., 34 A.D.2d 115, 116--117, 309 N.Y.S.2d 274, 275--276).

The trial court also denied appellants' requested...