Scavetta v. Wechsler

• Decision Date: 16 March 2017
• Citation: 149 A.D.3d 202,49 N.Y.S.3d 436
• Parties: Gregory SCAVETTA, et al., Plaintiffs–Appellants, v. Stuart WECHSLER, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 202

49 N.Y.S.3d 436

Gregory SCAVETTA, et al., Plaintiffs–Appellants,

v.Stuart WECHSLER, Defendant–Respondent.

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

March 16, 2017.

Seiden & Kaufman, Carle Place (Steven J. Seiden of counsel), for appellants.

Devitt Spellman Barrett, LLP, Smithtown (Maggie O'Connor and John M. Denby of counsel), for respondent.

ROLANDO T. ACOSTA, J.P., DIANNE T. RENWICK, KARLA MOSKOWITZ, PAUL G. FEINMAN, MARCY L. KAHN, JJ.

ACOSTA, J.P.

The primary question raised in this appeal is whether a negligence claim may be asserted against a defendant who attached a dog's leash to an unsecured bicycle rack, which was put into motion when the dog dragged it through the streets and into the plaintiff, causing injury. We answer in the negative, on constraint of the Court of Appeals' Bard rule that " ‘when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule’ ... of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities" (Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009], quoting Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006] ). Therefore, we must affirm the order of the motion court, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint.

At the same time, we take this opportunity to acknowledge plaintiffs' persuasive argument that the Bard rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner's negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

Facts and Background

On March 24, 2014, defendant was walking his dog on the way to meet a friend at a pizzeria on Lexington Avenue between 93rd and 94th Streets in Manhattan. Upon arriving at the restaurant, he tied the 35–pound dog by its leash to a metal bicycle rack, which weighed about five pounds and had dimensions of approximately 3 feet by 3 feet by 2 feet. The rack was of the sort to which cyclists or bicycle delivery workers ordinarily lock their bicycles for security outside of buildings.

Defendant did not assure himself, however, that the rack was secured to the ground or to anything else. As he reached the entrance of the pizzeria, defendant heard the rack scraping against the sidewalk and turned to see his dog running down the street, pulling the rack with its leash. It appeared to defendant that the dog started to follow him as he approached the restaurant but was frightened by the noise of the rack scraping against the sidewalk and began to run. The dog was not chasing anything, but it was running "[v]ery fast" and was "panicked." Defendant started running after his dog, but was unable to catch up to it.

Meanwhile, plaintiff Gregory Scavetta was on his way to work, walking north on Lexington Avenue, and began to cross 93rd Street in the crosswalk. As he crossed the street, Scavetta heard the scraping of the rack and saw the dog running straight towards him, dragging the rack behind it. The dog ran past Scavetta and hid underneath a car. Scavetta then took one or two steps toward the dog, to see if it was injured and whether he could disconnect the rack from the leash, but the dog immediately "sprung back out from underneath the car and took off again." The dog ran back towards Scavetta, still dragging the rack, which struck him. One of Scavetta's legs got caught in the rack's crossbars, and, as the dog continued to pull the rack, Scavetta was spun around so that both of his feet went up in the air and he landed on his back.

The dog ran off toward Park Avenue. Defendant recovered the dog approximately two hours later, after his dog walker found the dog at Lexington Avenue and 86th Street. Scavetta was taken to Mt. Sinai Hospital and treated for an injury to his left leg.

Scavetta and his wife commenced this action, alleging among other things that defendant was negligent or reckless in tying his dog to the unsecured bicycle rack, because he knew or should have known that the dog could pull it. Plaintiffs did not assert a cause of action sounding in strict liability, and stated in their verified bill of particulars that "the dog's viciousness is not an element of plaintiff[s'] cause of action."

Defendant moved for summary judgment dismissing the complaint, arguing among other things that New York State does not recognize negligence as a cause of action for injuries caused by domestic animals. Plaintiffs cross-moved for summary judgment on the issue of liability, noting that they "intentionally did not comment about strict liability in their Bill of Particulars," since the action "does not involve vicious propensities of the dog." To the contrary, plaintiffs argued, defendant is liable "for negligently creating an extremely dangerous condition and unreasonable risk of harm to others." Plaintiffs explained that, "[b]y attaching the dog's eight-foot leash to an unsecured, flimsy, light metal bicycle rack that defendant knew, or should have known, the dog could easily drag through the crowded streets and sidewalks of New York City, defendant turned the otherwise innocuous metal rack into a dangerous instrumentality."

The court granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion on the issue of liability, citing Court of Appeals precedent holding that negligence is not a viable cause of action where an injury is caused by a domestic animal and that a plaintiff may only recover in strict liability based upon a showing that the owner knew or should have known that the animal had a vicious propensity. The court noted that plaintiffs did not cite any case law to support the proposition that the case was distinguishable on the ground that defendant converted the metal rack into an instrument of harm. The court concluded that it was constrained to dismiss the complaint because "negligence is no longer a basis for imposing liability, and plaintiffs expressly state that they do not pursue a strict liability claim premised upon any propensities of defendant's dog."

Plaintiffs appeal.

Discussion

The "vicious propensity" doctrine, which provides for strict liability against an owner of a domestic animal that causes harm, where the owner knows or should have known of the animal's vicious propensities, has been the law in New York since at least 1816 (Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004], citing Vrooman v. Lawyer, 13 Johns 339 [1816] ). The term "vicious propensity" has become a term of art, having expanded from its ordinary definition to "include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (id. [internal quotation marks omitted] ), and even includes a nondangerous proclivity where "such proclivity results in the injury giving rise to the lawsuit" (id. at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ). For many years, however, the question lingered whether a plaintiff could bring a common-law negligence claim against an owner of a domestic animal that caused injury, in the event that strict liability was unavailable due to a lack of evidence regarding the animal's propensities (but see Hyland v. Cobb, 252 N.Y. 325, 326–327, 169 N.E. 401 [1929] [acknowledging that "negligence by an owner, even without knowledge concerning a domestic animal's evil propensity, may create liability"] ).

The Court of Appeals addressed this question in Bard v. Jahnke , 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006), supra , where a carpenter who was working on the defendant's farm was attacked and injured by the defendant's breeding bull. The Court rejected the plaintiff's strict liability claim because there was no evidence that the bull had ever exhibited threatening behavior toward other farm animals or humans (id. at 597, 815 N.Y.S.2d 16, 848 N.E.2d 463 ). In addition, the Court rejected the plaintiff's alternative argument that the defendant was negligent in failing to restrain the bull or warn the plaintiff of the bull's presence, holding that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the [strict liability] rule articulated in Collier " (id. at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 ).

The Bard rule was not established without controversy. In its analysis, the four-judge majority of the Court rejected the rule stated in Restatement (Second) of Torts § 518 permitting liability where an owner of a domestic animal is negligent in failing to prevent harm caused by the animal (or intentionally causes the animal to do harm), irrespective of whether any vicious propensity exists (Bard, 6 N.Y.3d at 597–599, 815 N.Y.S.2d 16, 848 N.E.2d 463 ). Three judges dissented, reasoning that it would have been "wiser to follow the Restatement rule, as ha[d] almost every other state that ha[d] considered the question" (id. at 603, 815 N.Y.S.2d 16, 848 N.E.2d 463 [R.S. Smith, J., dissenting] ).¹ In the dissenters' view, the Court had left our state "with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions" (id. at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [R.S. Smith, J., dissenting] ).

Despite the discord over the Bard rule, it has persisted. For example, in Petrone v. Fernandez, the Court of Appeals relied on Bard and confirmed that, even where a plaintiff presents "some evidence of negligence"—e.g., the defendant's violation of a local leash law—the evidence is irrelevant because "negligence is no longer a basis for imposing liability after Co...