| Bloomer v Shauger |
| 2012 NY Slip Op 02740 [94 AD3d 1273] |
| April 12, 2012 |
| Appellate Division, Third Department |
| Robert Bloomer, Appellant, v Christine M. Shauger,Respondent. |
—[*1] Law Offices of Theresa J. Puleo, Syracuse (P. David Twichell of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Zwack, J.), entered November 12,2010 in Ulster County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
In 2003, defendant acquired two American Quarter horses, Whiskey and Topper. The horses,previously owned by defendant's deceased brother, had been companions for more than twodecades and, by all accounts, would become agitated whenever they were separated from oneanother. Additionally, according to defendant, Whiskey and Topper were "barnsour"—meaning that they would not go inside a barn or enclosed structure—and, asa result, were kept in a small paddock on defendant's property.
Topper unfortunately fell ill in January 2008 and, two months later, after discovering Topperunable to stand, defendant contacted her veterinarian and arranged to have him putdown—a task performed inside the paddock and in full view of Whiskey. Shortlythereafter, defendant contacted her nephew, David Edwards, and asked that he assist her inburying Topper. Edwards, utilizing a skid steer equipped with a backhoe, thereafter begandigging Topper's grave inside the paddock—where Whiskey still remained. During all ofthis, Whiskey was observed pacing back and forth, whinnying and searching for Topper.[*2]
Although the parties debate precisely what transpirednext, defendant has assumed—for purposes of the underlying motions—thatplaintiff's version of the ensuing events is true. In this regard, plaintiff—who lived nextdoor—testified at his examination before trial that upon arriving home from work, heheard the sound of digging and walked over to defendant's property to see what was going on.Upon learning of Topper's passing and viewing the limited progress made by Edwards with theskid steer, plaintiff climbed aboard and finished digging the grave. As plaintiff prepared to interTopper, Whiskey was "[f]rantically pacing" in the paddock, prompting defendant to leave thearea in search of a lead line.[FN1] While defendant was gone, plaintiff crouched down next to Topper and began petting him. Thisgesture seemed to calm Whiskey, who approached and rested her chin on plaintiff's left shoulder.As plaintiff reached up with his left hand and grasped Whiskey's halter, defendant approached,reached across both of them with the lead line in hand and spooked Whiskey, who pulled herhead back. In the process, the middle finger of plaintiff's left hand caught in one of the metalrings on the halter, resulting in a significant injury that required surgical intervention.
Plaintiff thereafter commenced this action against defendant setting forth causes of actionsounding in negligence and strict liability. Following joinder of issue and discovery, defendantmoved for summary judgment dismissing the complaint. Plaintiff opposed the motion andcross-moved for summary judgment. Supreme Court thereafter granted defendant's motion anddenied plaintiff's cross motion, prompting this appeal.
We affirm. Preliminarily, Supreme Court properly dismissed plaintiff's negligence claim asNew York no longer "recognize[s] a common-law negligence cause of action to recover damagesfor injuries caused by a domestic animal" (Curbelo v Walker, 81 AD3d 772, 774 [2011]; see Vichot v Day, 80 AD3d 851,852 [2011]).[FN2] Although this Court recently expressed its discomfort with this rule (see Hastings vSauve, 94 AD3d 1171, 1173 [2012]) and defendant's conduct on the day in question indeedmay have evidenced some negligence on her part (see n 5, infra), the Court ofAppeals has made its position clear (seePetrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444,446-447 [2004]); therefore, we are constrained to view this matter solely in the context of strictliability.
In this regard, "[i]t has long been the rule that the owner of a domestic animal who eitherknows or should have known of that animal's vicious propensities will be held liable for the harmthe animal causes as a result of those propensities" (Seybolt v Wheeler, 42 AD3d 643, 644 [2007] [internal quotationmarks and citations omitted]; accordBarone v Phillips, 83 AD3d 1523, 1523-1524 [2011]; see Petrone v Fernandez,12 NY3d at 550). The term "vicious propensities," in turn, includes "the propensity to do any actthat might endanger the safety of the [*3]persons and property ofothers in a given situation" (Collier v Zambito, 1 NY3d at 446 [internal quotation marksand citation omitted]; accord Alia vFiorina, 39 AD3d 1068, 1069 [2007]). To that end, "an animal that behaves in a mannerthat 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 thelawsuit" (Collier v Zambito, 1 NY3d at 447; accord Krieger v Cogar, 83 AD3d 1552, 1553 [2011]; Barone vPhillips, 83 AD3d at 1524). The case law makes clear, however, that behavior that is normalor typical for the particular type of animal in question is insufficient to establish a viciouspropensity (see Illian v Butler, 66AD3d 1312, 1314 [2009]; Earl vPiowaty, 42 AD3d 865, 866 [2007]; Seybolt v Wheeler, 42 AD3d at 645; Campo v Holland, 32 AD3d 630,631 [2006]), and an animal's "rambunctious behavior would show awareness of a viciouspropensity only if it [was] the very behavior that resulted in [the] plaintiff's injury" (Campo vHolland, 32 AD3d at 631; accord Earl v Piowaty, 42 AD3d at 866; Seybolt vWheeler, 42 AD3d at 644).
Here, regardless of whether Whiskey's demeanor on the day in question was the result ofbeing separated from Topper or, rather, having witnessed firsthand his demise and the ensuingpreparations for his burial, there is no dispute that she was nervous and agitated both prior to andfollowing plaintiff's arrival, as evidenced by her whinnying and pacing inside thepaddock.[FN3] There is nothing in the record to suggest, however, that Whiskey's whinnying and pacingconstituted atypical equine behavior and, more to the point, it is clear that this behavior was notthe cause of plaintiff's injury. Similarly, even if Whiskey's overall behavior that day could becharacterized as rambunctious,[FN4] again, her generalized anxiety was not "the very behavior that resulted in plaintiff's injury"(Campo v Holland, 32 AD3d at 631; see Barone v Phillips, 83 AD3d at 1524).
Nor are we persuaded that Whiskey's history of avoiding a lead line rises to the level of avicious propensity. To be sure, the record makes clear that Whiskey did not like being attached toa lead line, that defendant often had to hide the lead line in the sleeve of her jacket in order tosuccessfully attach the line to Whiskey's halter and that, if Whiskey saw the lead line coming, shewould turn and walk away.[FN5] Noticeably absent from the record, however, is any indication that [*4]Whiskey's avoidance of the lead line—either in general or inthe particular manner in which she eluded it that day—was "abnormal to [her] class,another necessary characteristic of vicious behavior for the purpose of establishing liability"(Krieger v Cogar, 83 AD3d at 1553 [internal quotation marks and citation omitted]; accord Tennant v Tabor, 89 AD3d1461, 1463 [2011]). To the contrary, Whiskey's veterinarian averred that Whiskey pullingher head back, which undeniably was the specific act that caused plaintiff's injury, constituted"normal behavior for any horse—and in fact a normal reaction for anyanimal—when a person reaches for the animal's throat or face." And, as noted previously,normal or typical animal behavior is not indicia of a vicious propensity (see Illian vButler, 66 AD3d at 1314; Earl v Piowaty, 42 AD3d at 866; Seybolt vWheeler, 42 AD3d at 645; Campo v Holland, 32 AD3d at 631). Moreover, althoughthere is ample evidence in the record documenting Whiskey's tendency to avoid the lead line bywalking away, there is nothing in the record to suggest that Whiskey had, on prior occasions,ever attempted to avoid a lead line by pulling her head back. For all these reasons, we are unableto conclude that Whiskey's tendency to avoid the lead line qualifies as "a proclivity to act in away that puts others at risk of harm" (Collier v Zambito, 1 NY3d at 447; see Smith v Reilly, 17 NY3d 895,896 [2011] [proof that dog barked and ran towards the road is insufficient to raise a question offact as to dog's alleged propensity to interfere with traffic]; Krieger v Cogar, 83 AD3d at1553 [colt's avoidance behavior was neither atypical nor a propensity that put others at a risk ofharm]; Alia v Fiorina, 39 AD3d at 1069 [dog's tendency to run into the road wasinsufficient to raise a question of fact as to dog's propensity to interfere with traffic]).[FN6]
In light of the foregoing, we are satisfied that defendant demonstrated her entitlement tosummary judgment dismissing the complaint and, further, that the record as a whole fails to raisea question of fact as to Whiskey's alleged vicious propensity. Accordingly, defendant's motionwas properly granted.
Lahtinen, J.P., Spain and Stein, JJ., concur.
Garry, J. (dissenting). I respectfully dissent, finding the majority analysis unduly narrow indefining the animal's known propensities relative to the manner of the injury. This horse, clearlyin a highly agitated state at the time of the underlying events, had an established propensity foravoiding lead lines. When the owner approached with the lead line, the horse responded in amanner entirely consistent with this propensity by trying to avoid the lead line. The horse hadpreviously "walked away" to avoid the lead line because it had apparently been free to do so.Here, however, plaintiff was restraining the horse with his hand in the halter; as it was unable towalk away, the horse instead "spooked" and "violently ripped his head back." The behavior atissue—avoiding lead lines—is nonetheless "the very behavior that resulted inplaintiff's injury" (Earl v Piowaty,42 AD3d 865, 866 [2007] [internal quotation marks and citation omitted]; see Seybolt v Wheeler, 42 AD3d643, 644 [2007]).
New York is apparently "the only state in the nation that rejects the rule set forth in theRestatement [Second] of Torts" regarding an owner's negligence as a ground for liability arisingfrom the dangerous acts of animals (Miner, Outside Counsel, When Animals Attack in NewYork, NYLJ, Feb. 28, 2012, at 4, col 1; see Bard v Jahnke, 6 NY3d 592, 597-599 [2006]). As we are thusapplying an extremely restrictive rule, we should not do so in an extremely restrictive manner.Accordingly, I would reverse that part of the order granting defendant's motion for summaryjudgment and allow the matter to proceed for determination of the contested factual issues.
Ordered that the order is affirmed, with costs.
Footnote 1: Plaintiff was familiar with bothWhiskey and Topper, having cleaned out their paddock and helped feed them while they werestill owned by defendant's brother. Although plaintiff characterized the horses as skittish, henever observed either of them display any sort of aggressive behavior.
Footnote 2: A horse is considered to be adomestic animal (see Agriculture and Markets Law § 108 [7]; Krieger v Cogar, 83 AD3d 1552,1552 [2011]).
Footnote 3: Indeed, plaintiff submitted anaffidavit from a veterinarian who suggested that Whiskey suffered from severe separationanxiety, as manifested by "a high degree of agitation marked by physical activity (pacing orrunning back and forth), vocalization (whinnying), and a general state of excitement."
Footnote 4: Although Whiskey obviouslywas under some measure of stress, plaintiff nonetheless testified, as noted previously, thatWhiskey seemed to calm down as he was petting Topper and was resting her chin on his shoulderimmediately prior to his injury.
Footnote 5: Defendant admittedly testified ather examination before trial that Whiskey was upset on the day in question, that she knew shecould not attach a lead line to Whiskey when the horse was agitated and, further, that each timeshe attempted to attach the lead line to Whiskey's halter that day, Whiskey became more andmore upset. However, defendant's arguably questionable judgment in this regard is of nomoment, as the issue is not what defendant should (or should not) have done but, rather, whethershe knew or should have known of Whiskey's alleged vicious propensities.
Footnote 6: To the extent that plaintiff reliesupon an affidavit from a veterinarian who stated that American Quarter horses are "selectivelybred to be able to rapidly go into reverse when called upon to do so," two observations are worthnoting. First, the trait identified in the affidavit submitted by plaintiff's veterinarian is not whatoccurred here; although Whiskey admittedly pulled her head back, she did not "rapidly go intoreverse." Further, the case law makes clear that an animal's membership in a particular breed isinsufficient to charge its owner with knowledge of any alleged vicious propensities associatedtherewith (see Bard v Jahnke, 6 NY3d at 599; cf. Morse v Colombo, 31 AD3d 916, 917-918 [2006]).