Wheaton v. Guthrie

• Decision Date: 09 July 1982
• Citation: 89 A.D.2d 809,59 N.Y.2d 513,453 N.Y.S.2d 480
• Court: New York Supreme Court — Appellate Division
• Parties: Theodore WHEATON and Hazel Wheaton, Respondents-Appellants, v. Walter GUTHRIE, Appellant-Respondent.

Page 480

453 N.Y.S.2d 480

89 A.D.2d 809

Theodore WHEATON and Hazel Wheaton, Respondents-Appellants, v. Walter GUTHRIE, Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

July 9, 1982.

Bayer & Smith by Gary A. Belson, Rochester, for Guthrie.

Dadd & Dadd, P. C. by Eric Dadd, Attica, for Wheatons.

Before SIMONS, J. P., and HANCOCK, CALLAHAN, DOERR and DENMAN, JJ.

MEMORANDUM:

Plaintiffs Hazel and Theodore Wheaton brought this action to recover for injuries sustained by Hazel Wheaton in an incident involving defendant's Labrador retriever, Kuro. The case was tried by a jury which returned a verdict in the amount of $70,000 for Hazel and $50,000 for Theodore on his derivative action. The court granted defendant's motion to set aside the verdict to the extent of setting aside the verdict for Theodore and an amended judgment was entered thereon. Defendant appeals and plaintiff cross-appeals from that amended judgment.

Plaintiffs own and operate a dairy farm. Hazel Wheaton testified that she and her husband had recently acquired Ginger, a female German shepherd, who at the time of the incident was in heat. On the evening in question, while Ginger was chained to a fuel tank in the Wheatons' yard, Kuro came into the yard and attempted to mate with her. Hazel went out to unhook the chain in order to take Ginger inside. While stooping to unfasten the chain, she was knocked over. Apparently rendered unconscious for a few moments, she awoke to find herself lying on the ground with her right shoulder on some cinder blocks and Ginger standing over her licking her hand. As a result of the fall, she sustained permanent injuries to her right arm which restricted its use.

The judge properly charged the jury on the essential elements of a strict liability "vicious dog" cause of action, as well as on plaintiff's burden of proof. In determining if that burden was met, we must view the evidence most favorably to plaintiffs (Ferrer v. Harris, 55 N.Y.2d 285, 290, 449 N.Y.S.2d 162, 434 N.E.2d 231; Caprara v. Chrysler Corp., 52 N.Y.2d 114, 118, 436 N.Y.S.2d 251, 417 N.E.2d 545).

Thus viewed, the proof established that Kuro was the dog involved and that he had a vicious propensity known to defendant. A vicious propensity is the tendency of a dog to do an act which might endanger another (Morales v. Quinones, 72 A.D.2d 519, 420 N.Y.S.2d 899; LaGoda v. Dorr, 28 A.D.2d 208, 284 N.Y.S.2d 130; Scharf v. Manson, 27 A.D.2d 613, 275 N.Y.S.2d 629). The testimony established that Kuro was in the habit of straying from defendant's home onto the property of others and that, on at least one occasion, he had jumped at a neighbor on a bicycle, causing him to fall. Although disputed at trial, there was sufficient evidence for the jury to find that defendant had notice of Kuro's prior conduct, and thus, his vicious propensity (DiGrazia v. Castronova, 48 A.D.2d 249, 368 N.Y.S.2d 898; Buchholz v. Shapiro, 48 A.D.2d 694, 368 N.Y.S.2d 46; Scharf v. Manson, 27 A.D.2d 613, 275 N.Y.S.2d 629). The most critical element was the requirement that the dog's known vicious propensity be the cause of the injury. While the proof in this respect was slight and subject to more than one interpretation, it was a question for the jury (DiGrazia v. Castronova, 48 A.D.2d 249, 253, 368 N.Y.S.2d 898; LaGoda v. Dorr, 28 A.D.2d 208, 210, 284 N.Y.S.2d 130). It cannot be said that there is no permissible inference which could have rationally led to the jury's verdict and we are not inclined to disturb it merely because other inferences could be drawn (Delgado v. Union Free School District, 48 N.Y.2d 643, 421 N.Y.S.2d 198, 396 N.E.2d 481; Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145).

There must, however, be a new trial on the issue of damages under Theodore Wheaton's derivative action. The court vacated that award, but for the wrong reason. The value of Hazel's services could properly be claimed as a part of her husband's derivative claim. The spouse of an injured plaintiff may properly recover for the loss of services that could reasonably be expected absent the injuries (MacIver v. Lyon, 43 A.D.2d 806, 350 N.Y.S.2d 477), and such loss may include the...