Loeffler v. Rogers

• Decision Date: 14 January 1988
• Parties: Hubert A. LOEFFLER et al., Respondents, v. Nile G. ROGERS et al., Appellants. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 660

523 N.Y.S.2d 660

136 A.D.2d 824

Hubert A. LOEFFLER et al., Respondents, v. Nile G. ROGERS et al., Appellants.

(And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

Jan. 14, 1988.

Bond, Schoeneck & King (David R. Sheridan, of counsel), Albany, for appellants.

Harrigan & Law (Robert T. Law, III, of counsel), Cohoes, for respondents.

Before MAHONEY, P.J., and WEISS, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Ford, J.), entered May 6, 1987 in Saratoga County, which denied defendants' motion for summary judgment dismissing the complaint.

Plaintiff Hubert A. Loeffler was injured when the automobile in which he was a passenger collided with two horses on Route 29 in the Town of Milton, Saratoga County. The horses belonged to defendants, who owned a nearby farm. Loeffler and his wife subsequently brought this action for damages alleging causes of action based upon strict liability and negligence. Following discovery, defendants moved for summary judgment. The motion was denied and this appeal ensued.

Turning first to the negligence cause of action, plaintiffs contend that the unattended presence of the horses on the highway gives rise to an inference of negligence and thus that Supreme Court correctly denied summary judgment as to that cause of action. We agree. An inference of negligence arises under the doctrine of res ipsa loquitur when the plaintiff establishes that the event does not ordinarily occur in the absence of negligence and that the agency or instrumentality causing the injury is within the exclusive control of the defendant ( see, e.g., Abbott v. Page Airways, 23 N.Y.2d 502, 510, 297 N.Y.S.2d 713, 245 N.E.2d 388; Richardson, Evidence § 93, at 68 [Prince 10th ed] ). Here, defendants were in exclusive control of the horses and the fences surrounding the pasture where they were kept. Further, horses do not generally wander unattended on public streets in the absence of negligence ( see, Furlong v. Winne & McKain Co., 166 App.Div. 882, 152 N.Y.S. 245; Jones v. Chalaire, 85 Misc.2d 767, 380 N.Y.S.2d 493). The facts underlying the occurrence of this incident, although not compelling a finding of negligence, give rise to an inference of negligence and thus create a question of fact for the jury ( see, Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200; De Simone v. Lutheran Med. Center, 34 A.D.2d 660, 310 N.Y.S.2d 201). Although the inference created by res ipsa loquitur does not mandate that defendants come forward with rebuttal proof ( see, Davis v. Goldsmith, 19 A.D.2d 514, 240 N.Y.S.2d 148), defendants have "the burden of explanation" ( Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36) and should present evidence for the jury to weigh, against the inference of negligence, which tends to show that the presence of their horses on the highway was not the result of negligence...