Doerr v. Goldsmith
| Decision Date | 09 June 2015 |
| Parties | Wolfgang DOERR, Respondent, v. Daniel GOLDSMITH, Defendant, and Julie Smith, Appellant. Cheryl Dobinski, Appellant, v. George O. Lockhart et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Mischel & Horn, P.C., New York City (Scott T. Horn and Naomi M. Taub of counsel), for appellant in the first above-entitled action.
Gregory W. Bagen, Brewster (Dara Warren of counsel), for respondent in the first above-entitled action.
Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of counsel), for appellant in the second above-entitled action.
Walsh, Roberts & Grace, Buffalo (Mark P. Della Posta and Joseph H. Emminger, Jr., of counsel), for respondents in the second above-entitled action.
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. Lockhart, 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, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006) constrains us to reject plaintiffs' negligence causes of action against defendants arising from injuries caused by defendants' dogs (see Bard, 6 N.Y.3d at 596–599, 815 N.Y.S.2d 16, 848 N.E.2d 463 ; see also Bloomer v. Shauger, 21 N.Y.3d 917, 918, 967 N.Y.S.2d 322, 989 N.E.2d 560 [2013] ; Smith v. Reilly, 17 N.Y.3d 895, 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149 [2011], revg. 83 A.D.3d 1492, 921 N.Y.S.2d 423 [4th Dept.2011] ; Petrone v. Fernandez, 12 N.Y.3d 546, 547–551, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009] ; Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). We decline to overrule our recently reaffirmed precedent (see Bloomer, 21 N.Y.3d at 918, 967 N.Y.S.2d 322, 989 N.E.2d 560 ; Petrone, 12 N.Y.3d at 547–551, 883 N.Y.S.2d 164, 910 N.E.2d 993 ). Furthermore, our holding in Hastings v. Sauve, 21 N.Y.3d 122, 967 N.Y.S.2d 658, 989 N.E.2d 940 (2013) does not allow plaintiffs to recover based on defendants' purported negligence in the handling of their dogs, which were not domestic farm animals subject to an owner's duty to prevent such animals from wandering unsupervised off the farm (see Hastings, 21 N.Y.3d at 124–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 ).
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, 12 N.Y.3d at 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; see generally Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ).
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, 14 N.Y.S.3d at 726–27, 35 N.E.3d at 796–97), I conclude that a negligence cause of action does not lie under our long-standing precedent, and I reject the specific grounds advanced by plaintiffs here for declining to apply the controlling principles of law set forth in Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006). Therefore, I join the majority's memorandum opinion in full. I write separately to provide additional background on these cases, suggest further guidance for future cases, and respond to the particular contentions of the plaintiffs and my dissenting colleagues.
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 N.Y. Dept. of Parks and Recreation [56 R.C.N.Y.] § 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 N.Y.3d 546, 883 N.Y.S.2d 164, 910 N.E.2d 993 (2009). Doerr opposed the motion on the ground that the Bard rule does not apply where, as here, liability is premised on the conduct of the owner in turning the animal into an instrumentality of harm. Supreme Court denied Smith's motion for summary judgment dismissing the complaint, largely adopting Doerr's position.
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, 105 A.D.3d 534, 534–535 [1st Dept.2013] ). The majority determined that, because “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal,” Doerr could not sue Smith for her allegedly negligent handling of her dog (id. at 534 [internal quotation marks and citation omitted] ). One Justice dissented on the theory that Smith could be held liable for her negligent instruction to the dog, as distinct from the dog's own willful actions (see id. at 535–537 [Mazzarelli, J.P., dissenting] ).
After the Appellate Division's decision in Doerr, we handed down our decision in Hastings v. Sauve, 21 N.Y.3d 122, 967 N.Y.S.2d 658, 989 N.E.2d 940 (2013), wherein we held “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” (Hastings, 21 N.Y.3d at 124, 967 N.Y.S.2d 658, 989 N.E.2d 940 [citation omitted] ). Doerr moved for reargument of his appeal in the Appellate Division or, in the alternative, for leave to appeal to this Court.
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 (2013 N.Y. Slip Op. 87042[U] [1st Dept.2013] ). On the same day it granted the reargument motion, the Appellate Division issued its new decision and order, which, by a split vote, affirmed Supreme Court's order and denied Smith's motion for summary judgment dismissing the complaint (see Doerr v. Goldsmith, 110 A.D.3d 453, 453–455, 978 N.Y.S.2d 1 [1st Dept.2013] ). The majority recounted the Bard rule, and it cited favorably the Bard dissent's position that the rule is archaic and leads to unfair results (see id. at 453–454, 978 N.Y.S.2d 1 ). The majority decided that this Court had recently ameliorated the harshness of the Bard rule in Hastings, which “recognized that an accident caused by an animal's ‘aggressive or threatening behavior’ is ‘fundamentally distinct’ from one caused by an animal owner's negligence in permitting the animal from [sic] wandering off the property where it was kept” (id. at 454, 978 N.Y.S.2d 1, quoting Hastings, 21 N.Y.3d at 125, 967 N.Y.S.2d 658, 989 N.E.2d 940 ). The majority continued:
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