| Farnham v Meder |
| 2010 NY Slip Op 03605 [72 AD3d 1574] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Mitchell Farnham et al., Appellants, v Brian J. Meder,Respondent. |
—[*1] Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), fordefendant-respondent.
Appeal from a judgment and order (one paper) of the Supreme Court, Chautauqua County(Timothy J. Walker, A.J.), entered January 2, 2009 in a personal injury action. The judgment andorder granted the motion of defendant for a directed verdict dismissing the complaint.
It is hereby ordered that the judgment and order so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byMitchell Farnham (plaintiff) when he was knocked down by defendant's bull while chasing thebull from plaintiffs' property. On a prior appeal, we affirmed the order denying defendant'smotion for summary judgment dismissing the complaint (Farnham v Meder, 45 AD3d 1315 [2007]). We conclude thatSupreme Court properly granted defendant's motion for a directed verdict at the close ofplaintiffs' proof on the ground that plaintiffs failed to establish that the bull had a viciouspropensity.
It is well settled that "a bull is a domestic animal as defined in Agriculture and Markets Law§ 108 (7)" (Bard v Jahnke, 6NY3d 592, 596 [2006]), and "that the owner of a domestic animal who either knows orshould have known of that animal's vicious propensities will be held liable for the harm theanimal causes as a result of those propensities . . . Vicious propensities include the'propensity to do any act that might endanger the safety of the persons and property of others in agiven situation' " (Collier vZambito, 1 NY3d 444, 446 [2004]; see Bard, 6 NY3d at 596-597). InCollier, the Court of Appeals held that "an animal that behaves in a manner that wouldnot necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to actin a way that puts others at risk of harm, can be found to have vicious propensities—albeitonly when such proclivity results in the injury giving rise to the lawsuit" (1 NY3d at 447). Onceit is established that the owner of the animal had knowledge of its vicious propensity, the ownerbecomes strictly liable for the resulting injury (see Bard, 6 NY3d at 597). The Court ofAppeals has explicitly "reject[ed] the notion that a negligence cause of action survivesCollier and Bard" (Petrone v Fernandez, 12 NY3d 546, 550 [2009]), and it has heldthat the[*2]"owner's liability is determined solely byapplication of the rule articulated in Collier" (Bard, 6 NY3d at 599 [emphasisadded]; see Petrone, 12 NY3d at 550; Lista v Newton, 41 AD3d 1280, 1282 [2007]).
Although it was undisputed that defendant knew that his bull had a propensity to break freeof its enclosure and wander onto plaintiffs' property, plaintiffs failed to establish either that thebull had "a proclivity to act in a way that puts others at risk of harm" or that defendant knew ofsuch a proclivity (Collier, 1 NY3d at 447). The bull's proclivity to wander was not theproclivity that resulted in the injury to plaintiff. Rather, the act that precipitated plaintiff's injurywas the aggressive act of the bull in spinning around and knocking plaintiff to the ground, andplaintiff testified at trial that the bull had never acted aggressively before the day he was injured.Thus, we conclude that the evidence, viewed in the light most favorable to plaintiffs, establishedas a matter of law that there was no rational process by which the jury could have found in theirfavor (see Hargis v Sayers [appeal No. 2], 38 AD3d 1228, 1229 [2007]).Present—Martoche, J.P., Centra, Fahey, Peradotto and Pine, JJ.