| Tennant v Tabor |
| 2011 NY Slip Op 08034 [89 AD3d 1461] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| Randy J. Tennant, Respondent, v David Tabor et al.,Appellants. |
—[*1] Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, LLP, Utica (Eva Brindisi Pearlman of counsel),for plaintiff-respondent.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), enteredDecember 22, 2010 in a personal injury action. The order denied the motion of defendants forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, defendants' motion is granted and the amended complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when hisvehicle collided with a horse owned by defendants. We agree with defendants that Supreme Courterred in denying their motion for summary judgment dismissing the amended complaint. " '[W]hen harmis caused by a domestic animal, its owner[s'] liability is determined solely by application of therule articulated in Collier [v Zambito (1 NY3d 444 [2004]),]' . . . i.e., therule of strict liability for harm caused by a domestic animal whose owner[s] know[ ] or should haveknown of the animal's vicious propensities" (Petrone v Fernandez, 12 NY3d 546, 550 [2009]). Consequently,plaintiff's reliance on Agriculture and Markets Law § 353 is without merit. Even assuming,arguendo, that the statute requires that shelter be provided to a domestic animal (see generally People v Mahoney, 9 Misc 3d101, 103 [2005], lv denied 5 NY3d 854 [2005]), we conclude that "defendant[s']violation of [that statute] . . . is irrelevant because such a violation is only some evidenceof negligence, and negligence is no longer a basis for imposing liability for injuries sustained as the resultof" the actions of a domestic animal (Tesmerv Colonna, 77 AD3d 1305, 1305 [2010] [internal quotation marks omitted]; seePetrone, 12 NY3d at 550). Plaintiff's reliance on the doctrine of res ipsa loquitor is also misplaced.Res ipsa loquitor is not a separate theory of liability. Rather, it is merely a doctrine that permits afactfinder to infer negligence under certain circumstances (see generally Morejon v Rais Constr. Co., 7 NY3d 203, 207-211[2006]). Inasmuch as negligence will not support liability under the circumstances of this case, aninference of negligence is equally insufficient. Consequently, the court erred in denying the motion withrespect to the common-law negligence claims (see Vichot v Day, 80 AD3d 851 [2011]).
In addition, the court erred in denying the motion with respect to the strict liability claim. As wenoted above, it is well settled "that the owner[s] of a domestic animal who either know[ ] [*2]or should have known of that animal's vicious propensities will be heldliable for the harm the animal causes as a result of those propensities . . . Viciouspropensities include the 'propensity to do any act that might endanger the safety of the persons andproperty of others in a given situation' " (Collier, 1 NY3d at 446; see Krieger v Cogar, 83 AD3d 1552[2011]). "In Collier . . . , the Court of Appeals held that 'an animal that behavesin a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects aproclivity 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 the lawsuit' "(Krieger, 83 AD3d at 1553, quoting Collier, 1 NY3d at 447). Here, defendantssubmitted affidavits and deposition testimony in support of the motion establishing that they had noknowledge that the horse at issue had ever jumped the fence surrounding its corral or attempted to doso and that they had no information tending to show that the horse had a propensity to run in theroadways or to interfere with traffic. We therefore conclude that defendants met their initial burden withrespect to the strict liability claim (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]).
We further conclude that plaintiff failed to raise a triable issue of fact whether the horse had apropensity to interfere with traffic based upon one defendant's deposition testimony that the horsebecame spooked and ran around inside the confines of the corral during a thunderstorm. "In view. . . of the absence of any evidence that the [horse] . . . exhibited a. . . propensity [to interfere with traffic] prior to the incident involving the . . .plaintiff, no triable issue was raised" (Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, 224 [2007],affd 10 NY3d 787 [2008]; seeRockwood v LaBate, 83 AD3d 1530 [2011]; Myers v MacCrea, 61 AD3d 1385 [2009]). "Further, there is noevidence in the record that the [horse's] . . . behavior was abnormal to its class, anothernecessary characteristic of vicious behavior for the purpose of establishing liability" (Krieger,83 AD3d at 1553 [internal quotation marks omitted]; see Bard v Jahnke, 6 NY3d 592, 597 n 2 [2006]).Present—Scudder, P.J., Smith, Sconiers, Gorski and Martoche, JJ.