| Sargent v Mammoser |
| 2014 NY Slip Op 03372 [117 AD3d 1533] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Kathleen A. Sargent, Individually and as Administratrixof the Estate of Eric J. Engasser, Deceased, Appellant, v Donald Mammoser,Respondent. |
Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiff-appellant.
Walsh Roberts & Grace, Buffalo (Joseph H. Emminger, Jr., of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.),entered August 30, 2012. The order granted the motion of defendant for summaryjudgment dismissing the complaint and denied the cross motion of plaintiff to amend thecomplaint and for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by denying defendant's motion and reinstating the complaint, and as modified theorder is affirmed without costs.
Memorandum: Plaintiff commenced this wrongful death action individually and asadministratrix of the estate of Eric J. Engasser (decedent), seeking damages for fatalinjuries sustained by decedent in a motorcycle accident. The accident occurred when themotorcycle operated by decedent collided with a cow on East Eden Road in the Town ofEden. The cow had wandered onto East Eden Road from a farm that was owned bydefendant and located along the roadway. Plaintiff alleged that defendant was negligentin failing to control, care for, and supervise his cow. Defendant moved for summaryjudgment dismissing the complaint, and plaintiff cross-moved to amend the complaint toadd a claim for strict liability based on vicious propensities and for partial summaryjudgment on the issue of liability. Supreme Court granted defendant's motion and deniedplaintiff's cross motion.
We note at the outset that plaintiff does not contend on appeal that the court erred indenying her cross motion, and thus she is deemed to have abandoned any contention withrespect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]).We agree with plaintiff, however, that the court erred in granting defendant's motion forsummary judgment dismissing the complaint. We conclude that the decision of the Courtof Appeals in Hastings vSauve (21 NY3d 122 [2013]) compels the denial of defendant's motion, and wetherefore modify the order accordingly.
In Hastings (21 NY3d at 124), the plaintiff was injured when the van she wasdriving hit a cow on a public road. The cow had been kept on the property of one of thedefendants, and there was evidence that the fence separating that defendant's propertyfrom the road was overgrown and in bad repair (id.). The plaintiff and herhusband commenced a personal injury action against the property owner and the ownersof the animal (id. at 125). In reversing the order of the Third Department, whichhad ruled that injuries inflicted by domestic animals may proceed only under a strictliability theory based on the owner's knowledge of the animal's vicious propensities, theCourt of Appeals held that the rule articulated in cases such as Petrone v Fernandez (12 NY3d546, 550 [2009]), Bard vJahnke (6 NY3d 592, 596-597 [2006]), and Collier v Zambito (1 NY3d 444, 446 [2004]) "does not bara suit for negligence when a farm animal has been allowed to stray from the propertywhere it is kept" (Hastings, 21 NY3d at 124). The Court reasoned that the claimin Hastings was "fundamentally distinct from the claim made in Bard andsimilar cases: It is that a farm animal was permitted to wander off the property where itwas kept through the negligence of the owner of the property and the owner of theanimal" (id. at 125). The Court further reasoned that to apply the rule inBard, i.e., that the owner's liability is determined solely by the vicious propensityrule, "would be to immunize defendants who take little or no care to keep their livestockout of the roadway or off of other people's property" (id.). The Court thereforeheld that "a landowner or the owner of an animal may be liable under ordinary tort-lawprinciples when a farm animal—i.e., a domestic animal as that term is defined inAgriculture and Markets Law § 108 (7)—is negligently allowed tostray from the property on which the animal is kept" (id. at 125-126). Thatholding is applicable here to the instant case.
Defendant's contention that he is entitled to summary judgment dismissing plaintiff'scommon-law negligence claim on the ground that he lacked notice of the defect in thefence surrounding the paddock where the cow was kept is not properly before usinasmuch as it is raised for the first time on appeal (see Ciesinski, 202 AD2d at985). In any event, we conclude that there are triable issues of fact with respect todefendant's negligence based upon, inter alia, defendant's own testimony that there was abreak in the fence on the night of the accident and his acknowledgment that there hadbeen previous breaks in the fence that had to be repaired; the affidavits of defendant'sneighbors, who averred that the escape of defendant's cows was a recurring problem; andthe affidavit of plaintiff's expert, who opined that defendant's fence was inadequate(see Hastings, 21 NY3d at 126). Present—Scudder, P.J., Centra, Fahey,Peradotto and Whalen, JJ.