Young v. Wyman

• Citation: 76 N.Y.2d 1009,566 N.E.2d 1157,565 N.Y.S.2d 752
• Parties: , 566 N.E.2d 1157 Michael YOUNG, Individually and as Parent and Natural Guardian of Jeffrey M. Young, an Infant, Plaintiff, v. Heather M. WYMAN et al., Appellants, and Nicholas Bellini, Respondent. (And Another Related Action.)
• Decision Date: 27 December 1990
• Court: New York Court of Appeals

Page 752

565 N.Y.S.2d 752

76 N.Y.2d 1009, 566 N.E.2d 1157

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

Court of Appeals of New York.

Dec. 27, 1990.

[76 N.Y.2d 1010] Betsy R. Ruslander, Albany, for appellants.

Michael J. Longstreet and William C. Foster, Albany, for respondent.

OPINION OF THE COURT

Order affirmed, with costs. We agree with so much of the memorandum at the Appellate Division (159 A.D.2d 792, 551 N.Y.S.2d 1009) as held that the mere presence of an unrestrained dog on the street does not give rise to a presumption of negligence on the part of its owner.

WACHTLER, C.J., and ALEXANDER, TITONE, HANCOCK and BELLACOSA, JJ., concur.

KAYE, J., dissents and votes to reverse in an opinion in which SIMONS, J., concurs.

KAYE, Judge (dissenting).

In this case, a car braked to avoid hitting a dog that had run into the street, and the car hit a child on a bicycle, injuring the child. The issue is whether the dog's presence in the street gave rise to a presumption of negligence on the part of the dog's owner. To put the question even more precisely, does the presumption of negligence that already exists when certain animals are present in a road, include dogs? I believe it does.

That the dog caused the accident is not disputed; what is uncertain is how he came to be free. The dog just prior to the accident was on an enclosed porch with a latched aluminum door, but it is unknown whether he released himself or was released. Once the dog was free, his owner attempted to recapture him, but he ran into the street, causing the accident.

The majority at the Appellate Division noted the common-law rule in New York that certain domestic animals, by their nature, require constant attention and are not left to roam unrestrained, so that when they are found unattended, owner neglect may be inferred. However, that court concluded that the common-law presumption does not apply to dogs, adopting language from a treatise which states that 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 proposition that dogs have a right in the highway in the community of Clifton Park (where this accident occurred) must be weighed against the fact that Clifton Park has adopted an ordinance "to restrain the running at large of dogs in the Town of Clifton Park, and generally regulating dog owners' responsibilities." That ordinance prohibits dog owners from permitting their dogs to be "at large," which is defined as being "on property open to the public" and is thus clearly applicable to public roadways. The "purpose" section of the ordinance states that the town "finds that the running at large and other uncontrolled behavior of dogs has caused physical harm to persons, damage to property and created nuisances within the Town" and that the purpose of the ordinance "is to protect the health, safety and well-being of persons and property." Thus, the ordinance is clearly aimed at the very type of accident that occurred here. That current statement of public policy on the question is surely entitled to some recognition by the courts (see, Zimmer v. Chemung County...