| Hastings v Sauve |
| 2012 NY Slip Op 02535 [94 AD3d 1171] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Karen Hastings et al., Appellants, v Laurier Sauve et al.,Respondents, et al., Defendant. |
—[*1] Napierski, Vandenburgh & Napierski, Albany (John W. Vandenburgh of counsel), forLaurier Sauve, respondent. O'Connor, O'Connor, Bresee & First, P.C., Albany (Danielle N. Meyers of counsel), forWilliam Delarm, respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Demarest, J.), entered March 3,2011 in Franklin County, which granted motions by defendants Laurier Sauve and WilliamDelarm for summary judgment dismissing the complaint against them.
At approximately 1:30 a.m. on September 11, 2007, plaintiff Karen Hastings (hereinafterplaintiff) was injured when her vehicle collided with a cow on County Route 53 in the Town ofBangor, Franklin County. The cow had wandered onto Route 53 from a farm owned by defendantLaurier Sauve that was located next to the highway. Defendant William Delarm operated a cattleshipping business and used a corral on Sauve's property to temporarily store cattle before theywere shipped for slaughter. Defendant Albert Williams assisted Delarm in his cattle business,and he claims that the cow that was struck by plaintiff's motor vehicle was one of several he keptin a fenced pasture on Sauve's property. In 2008, plaintiff and her husband, derivatively,commenced this action alleging that defendants were negligent in not properly confining the cowto the pasture and by allowing it to wander onto the adjacent highway causing [*2]this accident. Sauve and Delarm's motion for summary judgmentdismissing the complaint was granted by Supreme Court, and this appeal by plaintiffsensued.[FN1]
Initially, we note that plaintiffs, in their complaint, only alleged that defendants werenegligent in failing to restrain the cow, and did not plead a cause of action against defendantsalleging that they were strictly liable for the damages caused in this accident. However, claimsinvolving " 'injuries inflicted by domestic animals may only proceed under strict liabilitybased on the owner's knowledge of the animal's vicious propensities, not on theories ofcommon-law negligence' " (Rose vHeaton, 39 AD3d 937, 939 [2007], quoting Morse v Colombo, 31 AD3d 916, 917 [2006]; see Petrone v Fernandez, 12 NY3d546, 550 [2009]; Bard vJahnke, 6 NY3d 592, 598 [2006]; Collier v Zambito, 1 NY3d 444, 445-446 [2004]; Gannon v Conti, 86 AD3d 704,705 [2011].[FN2]Therefore, plaintiffs' claim alleging that Delarm and Sauve were negligent in regard to thedamages caused by this animal was properly dismissed. Moreover, even though Williams did notmove for summary judgment, for the same reasons that liability cannot be imposed upon Sauveand Delarm, no liability can be imposed against him. Therefore, we grant summary judgmentdismissing the complaint against Williams, without reaching the issue of ownership.[FN3]
Had plaintiffs alleged a cause of action against defendants based on strict liability, theywould have been required to present evidence that this particular cow had a vicious or abnormalpropensity that caused this accident—and defendants knew or should have known of it(see Petrone v Fernandez, 12 NY3d at 550; Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008];Bard v Jahnke, 6 NY3d at 601; Collier v Zambito, 1 NY3d at 446-447; Vichot v Day, 80 AD3d 851, 852[2011). Since no such claim has been made by plaintiffs, and no evidence to that effect has beenpresented, any claim that they were strictly liable for plaintiffs' injuries would also have beendismissed (see Vichot v Day, 80 AD3d at 852).
While we are obligated to affirm Supreme Court's dismissal of plaintiffs' claims againstDelarm and Sauve, we must note our discomfort with this rule of law as it applies to thesefacts—and with this result. There can be no doubt that the owner of a large animal such asa cow or a horse assumes a very different set of responsibilities in terms of the animal's care andmaintenance than are normally undertaken by someone who owns a household pet. The need tomaintain control over such a large animal is obvious, and the risk that exists if it is allowed toroam unattended onto a public street is self-evident and not created because the animal has avicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious orabnormal, but because defendants allegedly failed to keep it confined on farm property and, [*3]instead, allowed it to wander unattended onto the adjacent highwayin the middle of the night, causing this accident. The existence of any abnormal or viciouspropensity played no role in this accident, yet, under the law as it now exists, defendants' legalresponsibility for what happened is totally dependent upon it. For this reason, we believe in thislimited circumstance, traditional rules of negligence should apply to determine the legalresponsibility of the animal's owner for damages it may have caused. However, it is not for thisCourt to alter this rule and, while it is in place, we are obligated to enforce it. Therefore, forreasons previously stated, Supreme Court's order granting the motion for summary judgment byDelarm and Sauve should in all respects be affirmed.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is modified, on thelaw, with costs to defendants Laurier Sauve and William Delarm, by granting summary judgmentdismissing the complaint against defendant Albert Williams, and, as so modified, affirmed.
Footnote 1: Williams did not join in thismotion and has not appeared on this appeal.
Footnote 2: Cattle are included in thedefinition of domestic animals under the Agriculture and Markets Law (see Agricultureand Markets Law § 108 [7]; see generally Bard v Jahnke, 6 NY3d at 592).
Footnote 3: This Court may search therecord and grant summary judgment to a nonappealing, nonmoving party (see Shields v Carbone, 78 AD3d1440, 1443 n 2 [2010]; Luby vRotterdam Sq., L.P., 47 AD3d 1053, 1055 [2008]).