Young v. Wyman

• Decision Date: 01 March 1990
• Citation: 159 A.D.2d 792,551 N.Y.S.2d 1009
• Parties: Michael YOUNG, Individually and as Parent and Natural Guardian of Jeffrey M. Young, an Infant, Plaintiff, v. Heather M. WYMAN, et al., Respondents, and Nicholas Bellini, Appellant. (And Another Related Action.)
• Court: New York Supreme Court — Appellate Division

Page 1009

551 N.Y.S.2d 1009

159 A.D.2d 792

Michael YOUNG, Individually and as Parent and Natural Guardian of Jeffrey M. Young, an Infant, Plaintiff, v. Heather M. WYMAN, et al., Respondents and Nicholas Bellini, Appellant (And Another Related Action.)

Supreme Court, Appellate Division Third Department.

March 1, 1990.

Bouck, Holloway, Kiernan & Casey (Michael J. Longstreet, of counsel), Albany, for appellant.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Betsy R. Ruslander, of counsel), Albany, for respondents.

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

KANE, Justice.

Appeal from that part of an order of the Supreme Court (Plumadore, J.), entered May 16, 1989 in Saratoga County, which denied defendant Nicholas Bellini's motion for summary judgment dismissing the claims based on negligence.

Plaintiffs, Michael Young and Dale A. Young, have commenced separate suits against defendant Nicholas Bellini for damages occurring when their son Jeffrey M. Young was struck on his bicycle by an automobile driven by defendant Heather M. Wyman and owned by defendant Priscilla L. Wyman. The suits alleged, inter alia, negligence on Bellini's part in allowing his 14-year-old daughter's dog Caesar to run unattended into the street, causing the Wyman vehicle to swerve and strike Jeffrey. Bellini moved for summary judgment against plaintiff and for dismissal of a cross claim apparently brought by the Wymans. Supreme Court granted the motion as to those portions of the complaints based on Bellini's alleged violations of the local leash law and strict liability, but denied the motion insofar as it sought to dismiss the claims based on common-law negligence. Bellini now appeals.

The order should be modified and summary judgment granted to Bellini dismissing all claims against him. Supreme Court found no issues of fact and was, therefore, "inclined to [fully] grant [Bellini's] motion". However, relying on Jones v. Chalaire, 85 Misc.2d 767, 380 N.Y.S.2d 493, the court concluded that "negligence is presumptively established by the presence of an unrestrained domestic animal on a highway", a presumption properly rebutted at trial rather than on a motion for summary judgment. We disagree. The presumption relied upon by Supreme Court is based on a historical common-law premise that certain domestic animals, by their nature, require constant attention or restraint. "Certain kinds of animals involve an obvious danger * * *; everyone knows the propensity of cattle and horses to escape and roam and do mischief" (Prosser and Keeton, Torts § 76, at 538 [5th ed.]. These animals are not, therefore, ordinarily left to roam unkept and we can infer from their unattended or unrestrained presence a measure of neglect on the part of the owner (see, Loeffler v. Rogers, 136 A.D.2d 824, 523 N.Y.S.2d 660; see also, Unger v. 42d St. & Grand St. Ferry R.R. Co., 51 N.Y. 497, 500; Setzkorn v. City of Buffalo, 219 App.Div. 416, 219 N.Y.S. 351, affd. 246 N.Y. 605, 159 N.E. 670; Furlong v. Winne & McKain Co., 166 App.Div. 882, 152 N.Y.S. 245, appeal dismissed 222 N.Y. 643, 118 N.E. 1059; Jones v. Chalaire, supra ). Conversely, domestic favorites such as the family dog or cat, as emblematic of a suburban community as a cow or horse is to the standard farm, are, as a norm, frequently allowed to romp unguarded or unattended. As a general proposition "[a] dog, unless vicious, has a right in the highway, and presumably, absent evidence of negligence, the dog's owner cannot be charged with liability for injury caused [merely] by its presence therein" (3 N.Y.Jur.2d, Animals, § 48, at 625-626).

The result here is that some proof, or issue of fact, must exist beyond a mere showing that Bellini's dog was in the road at the time of the accident. We recognize that negligence is most often a question of fact for the jury and that summary judgment is a drastic remedy. However, in opposing Bellini's motion for summary judgment, the parties have failed to "produce evidentiary proof in admissible...