| Krieger v Cogar |
| 2011 NY Slip Op 03433 [83 AD3d 1552] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| Joann Krieger et al., Appellants, v Vicky Cogar et al.,Respondents. |
—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered March 16, 2010 in a personal injury action. The order, upon reargument, granteddefendants' cross motion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byJoann Krieger (plaintiff) in an accident involving defendants' six-day-old colt. When VickyCogar (defendant) attempted to place a halter on the colt, the animal backed into the stall doorand knocked plaintiff, who was standing outside of the door, to the ground. We conclude thatSupreme Court properly granted defendants' motion for leave to reargue their prior cross motionfor summary judgment dismissing the complaint and, upon reargument, granted the cross motion.
Agriculture and Markets Law § 108 (7) characterizes horses, which include colts, asdomestic animals, and it is well settled "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 v Jahnke, 6 NY3d 592, 596-597 [2006]). InCollier (1 NY3d at 447), the Court of Appeals held that "an animal that behaves in amanner that would not necessarily be considered dangerous or ferocious, but nevertheless reflectsa proclivity to act in a way that puts others at risk of harm, can be found to have viciouspropensities—albeit only when such proclivity results in the injury giving rise to thelawsuit." Once it is established that the owner of the animal in question had knowledge of itsvicious propensity, the owner becomes strictly liable for any resulting injuries (see Bard,6 NY3d at 597). "The Court of Appeals has explicitly 'reject[ed] the [*2]notion that a negligence cause of action survives Collier andBard' " (Farnham v Meder,72 AD3d 1574, 1575 [2010], quoting Petrone v Fernandez, 12 NY3d 546, 550 [2009]), "and it has heldthat the 'owner's liability is determined solely by application of the rule articulated inCollier' " (id., quoting Bard, 6 NY3d at 599 [emphasis added]).
Here, defendants brought the colt to their property no more than two days before the incident,and they acknowledged that the colt had exhibited "skittish" or nervous behavior. Defendant JeffCogar testified at his deposition that skittish behavior was the common response of a horse afterbeing transported to a new location, and defendant testified at her deposition that she was awareof the colt's tendencies to avoid human contact and seek the protection of his mother. The colt'srepeated avoidance behavior, however, does not constitute a "proclivity to act in a way that putsothers at risk of harm," which is required for a finding of vicious propensity (Collier, 1NY3d at 447). Further, there is no evidence in the record that the colt's avoidance behavior was "'abnormal to its class,' " another necessary characteristic of vicious behavior for the purpose ofestablishing liability (Bard, 6 NY3d at 597 n 2; see Restatement [Second] ofTorts § 509 [1]). Indeed, plaintiffs' expert witness stated in his affidavit that a week-oldcolt would have a natural inclination to exhibit avoidance behavior, e.g., the placement of ahalter on its face. Present—Centra, J.P., Fahey, Lindley, Gorski and Martoche, JJ.[Prior Case History: 26 Misc 3d 1225(A), 2010 NY Slip Op 50249(U).]