Doerr v. Goldsmith

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MAZZARELLI
• Citation: 2013 N.Y. Slip Op. 06442,978 N.Y.S.2d 1,110 A.D.3d 453
• Decision Date: 03 October 2013
• Parties: Wolfgang DOERR, Plaintiff–Respondent, v. Daniel GOLDSMITH, Defendant, Julie Smith, Defendant–Appellant.

110 A.D.3d 453
978 N.Y.S.2d 1
2013 N.Y. Slip Op. 06442

Wolfgang DOERR, Plaintiff–Respondent,
v.
Daniel GOLDSMITH, Defendant,
Julie Smith, Defendant–Appellant.

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

Oct. 3, 2013.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.

Gregory W. Bagen, Brewster, for respondent.

MAZZARELLI, J.P., ANDRIAS, DeGRASSE, RICHTER, CLARK, JJ.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 8, 2011, which denied defendant Julie Smith's motion for summary judgment dismissing the complaint as against her, affirmed, without costs.

This accident occurred while plaintiff was riding his bicycle around the Central Park loop road. Plaintiff had passed the intersection where cars merge onto Seventh Avenue at the southernmost part of the loop, but he was not near one of the designated areas for pedestrians to cross into the interior of the park. He observed defendant Smith on the left side of the loop and defendant Goldsmith, Smith's boyfriend, on the right side, roughly 30 to 50 yards ahead of him. Plaintiff testified that Goldsmith “was holding a dog in a manner that he was almost hugging the dog, so he had his arm around the chest and the neck of the dog” and that Smith was “slightly bending down and clapping her hands on her upper thighs.” Interpreting Smith's actions to be a signal to the dog (which was hers) to come to her, plaintiff screamed out, “Watch your dog.” Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it and being propelled off the bicycle. Defendants do not materially dispute plaintiff's recounting of the incident. Plaintiff seeks to recover against defendants on a theory of negligence. He does not claim that the dog's actions were a result of any vicious propensities of which defendants may have been aware.

Until very recently, the Court of Appeals had held that a person who is injured

[978 N.Y.S.2d 2]

in an accident involving an animal can never have a claim for negligence against the animal's owner, but can only recover in strict liability on a showing that the owner knew of the animal's vicious propensities ( see Petrone v. Fernandez, 12 N.Y.3d 546, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009]; Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006] ). In Bard, the plaintiff, who was doing carpentry work in a dairy barn located on the defendant's farm, was injured when a bull charged him. The bull had been permitted by the defendant to roam the farm and to breed with cows that had not been impregnated through artificial insemination. The Court rejected the plaintiff's argument that the defendant was negligent in permitting a breeding bull, with a tendency to express its dominance through acts of aggression, to roam freely. In Petrone, the Court refused to entertain a negligence claim asserted by a mail carrier who was injured while running away from an unrestrained Rottweiler that had begun to chase her. The rule articulated in Bard and affirmed in Petrone is not without controversy. Indeed, Judge Pigott concurred in the holding in Petrone “on constraint” of Bard (12 N.Y.3d at 551, 883 N.Y.S.2d 164, 910 N.E.2d 993), and endorsed Judge Robert Smith's dissent in that earlier case (id. at 552, 883 N.Y.S.2d 164, 910 N.E.2d 993). In Judge Smith's dissent in Bard, he stated that the holding that no negligence cause of action can ever lie in these cases “leaves New York with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions” (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463, R.S. Smith, J., dissenting).

Because of the Bard/Petrone rule, it had been virtually impossible for people injured by animals to recover if they could not establish the defendants' knowledge of the animals' vicious propensities. Indeed, even if the injury was not caused by “vicious” behavior, no remedy existed. Thus, in Lista v. Newton, 41 A.D.3d 1280, 838 N.Y.S.2d 299 [4th Dept. 2007], the Fourth Department refused to entertain a negligence claim where the plaintiff's ladder was knocked down when the defendant's horse ran into a fence the plaintiff was installing. In Hastings v. Sauve, 94 A.D.3d 1171, 941 N.Y.S.2d 774 [3d Dept. 2012], the plaintiff's car struck a cow that had wandered onto the highway from an adjacent farm owned by the defendant, and the Third Department rejected her negligence claim. And in Egan v. Hom, 74 A.D.3d 1133, 905 N.Y.S.2d 624 [2d Dept. 2010], the Second Department awarded the defendant summary judgment...