Morse v. Colombo
| Decision Date | 13 July 2006 |
| Docket Number | 500248. |
| Citation | 2006 NY Slip Op 05695,31 A.D.3d 916,819 N.Y.S.2d 162 |
| Parties | CHERYL MORSE, Respondent, v. FRANCES COLOMBO et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Doyle, J.), entered June 1, 2005 in Columbia County, which denied defendants' motion to set aside a verdict rendered in favor of plaintiff.
A few days after plaintiff began living at defendants' home as a caretaker for defendant Joseph Colombo, defendants' dog bit her hand, causing injuries. During the ensuing litigation, Supreme Court (Connor, J.) granted defendants' motion for summary judgment dismissing the complaint. This Court reversed that order, finding issues of fact regarding defendants' knowledge of their dog's vicious propensities (8 AD3d 808 [2004]). At trial (Doyle, J.), the jury returned a verdict in plaintiff's favor, finding that defendants' dog had vicious propensities prior to this incident, defendants knew or should have known about these propensities, defendants were negligent and their negligence was a substantial factor in causing the bite, and plaintiff was negligent but her negligence was not a substantial factor in causing the bite. Defendants filed a CPLR 4404 (a) motion to set aside the verdict, alleging that it was against the weight of the evidence and that the court committed prejudicial errors. The court denied defendants' motion, prompting this appeal.
Because several errors were committed at trial, we reverse. As plaintiff concedes, the Court of Appeals recently clarified that cases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence (see Bard v Jahnke, 6 NY3d 592, 599 [2006], citing Collier v Zambito, 1 NY3d 444 [2004]; see also Mindel v Jones, 16 AD3d 857, 858 [2005], lv denied 5 NY3d 705 [2005]; Shaw v Burgess, 303 AD2d 857, 859 [2003]). Thus, Supreme Court erred when it permitted plaintiff to introduce evidence relating to defendants' negligence and charged the jury on a common-law negligence theory. Evidence concerning Joseph Colombo's behavior, including allegations that he abused alcohol and prescription drugs and brandished a weapon, were irrelevant in this dog bite case. Such evidence was not only inadmissible, it was inflammatory and prejudicial to defendants.
Supreme Court erred in admitting the affidavit of Joseph Colombo's physician as a past recollection recorded. The criteria for admission under that doctrine are that the document relates to matters the witness observed, the matters were fairly fresh when recorded or adopted, the witness testifies that the document accurately represented his or her recollection and knowledge when it was made and the witness is presently unable to recall the facts of the matter (see People v Taylor, 80 NY2d 1, 8 [1992]; Calandra v Norwood, 81 AD2d 650, 651 [1981]). The physician's affidavit here stated that Joseph Colombo had an appointment with the physician the day after the incident, plaintiff accompanied...
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Bloomer v. Shauger
...propensities associated therewith ( see Bard v. Jahnke, 6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463; cf. Morse v. Colombo, 31 A.D.3d 916, 917–918, 819 N.Y.S.2d 162 [2006] ...
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Lawlor v. Klatzsko
...based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence" (Morse v Colombo, 31 A.D.3d 916, 917; see Claps v Animal Haven, Inc., 34 A.D.3d 715). "To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that ......
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Saperston v. Holdaway
...recollection and knowledge when it was made and the witness is presently unable to recall the facts of the matter” ( Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162). Here, the father did not testify that he could not recall the events that he recorded in the journal ( see Landsman v......
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Hastings v. Sauve
...not on theories of common-law negligence’ ” ( Rose v. Heaton, 39 A.D.3d 937, 939, 833 N.Y.S.2d 291 [2007], quoting Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162 [2006]; 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 5......
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Overruling by implication and the consequent burden upon bench and bar.
...or bust. See, e.g., Plennert v. Abel, 269 A.D.2d 796, 796, 704 N.Y.S.2d 417, 418 (App. Div. 4th Dep't 2000); Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162, 163-64 (App. Div. 3d Dep't 2006); Smith v. Farner, 229 A.D.2d 1017, 1018, 645 N.Y.S.2d 355, 356 (App. Div. 4th Dep't 1996). Ho......
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...The report did not, therefore, qualify as a hearsay exception. People v. Ramos , 535 N.Y.S.2d 663 (N.Y.Sup. 1988). 34 Morse v. Colombo , 31 A.D.3d 916, 819 N.Y.S.2d 162 (N.Y.A.D., 3 Dept., 2006). In a dog bite case, a physician’s affidavit stating that she observed a dog bite on the plainti......
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Hearsay Rule
...The report did not, therefore, qualify as a hearsay exception. People v. Ramos , 535 N.Y.S.2d 663 (N.Y.Sup. 1988). 31 Morse v. Colombo , 31 A.D.3d 916, 819 N.Y.S.2d 162 (N.Y.A.D., 3 Dept., 2006). In a dog bite case, a physician’s affidavit stating that she observed a dog bite on the plainti......
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...The report did not, therefore, qualify as a hearsay exception. People v. Ramos , 535 N.Y.S.2d 663 (N.Y.Sup. 1988). 33 Morse v. Colombo , 31 A.D.3d 916, 819 N.Y.S.2d 162 (N.Y.A.D., 3 Dept., 2006). In a dog bite case, a physician’s affidavit stating that she observed a dog bite on the plainti......