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New York Court of Appeals Upholds Rule Prohibiting
Negligence Claims for Harm Caused by Domestic Pets

by Jeffrey T. Baron, Esq.

Originally Published in The Suffolk Lawyer, Vol 30, No. 10-June 2015.

If you’ve noticed a lot of tail wagging lately, it might be because the New York Court of Appeals in Doerr v. Goldsmith[1] just published one of the most dog-friendly decisions ever. The main issue before the Doerr Court: Whether to overrule the high court’s heavily criticized 2006 Bard rule[2], which prohibited negligence claims in cases where the harm was caused by a canine or other animal. The Bard Court held that cases against the owner or harborer of an animal can proceed only under a theory of strict liability, triggered once plaintiff proves that defendant had prior notice of the animal’s harmful proclivities. Under the Bard rule, the negligent acts or omissions of the animal’s owner in causing or contributing to the plaintiff’s harm are completely irrelevant, including violations of local leash laws. Justice Smith’s dissent in Bard criticized the majority’s decision as archaic, rigid, “contrary to fairness and common sense”, and likely “to be eroded by ad hoc exceptions.”
The first such exception arrived in the 2013 case of Hastings v Sauve[3], where a cow was negligently permitted to stray from a farm and onto a highway, accidentally causing injuries to a passing motorist. The Court of Appeals recognized a “fundamental distinction” between cases where domestic pets engage in atypical vicious or aggressive behavior and cases where farm animals engage in emblematic errant or dangerous behavior, wandering away and causing harm.  The Hastings Court saw fit to carve a narrow exception to Bard’s negligence prohibition where farm animals (ie.  “domestic animals” as defined by Agriculture & Markets Law §108(7)), stray from the property where they are kept. The Court refrained from deciding whether domestic pet owners might also be subject to liability under ordinary tort law principles where their pets cause harm without engaging in vicious or aggressive behavior.  The Court insisted that question would have to await a different case, which brings us to Doerr.
Plaintiff Wolfgang Doerr was riding his bicycle on a road in Central Park, toward a location where defendant Julie Smith and her boyfriend Daniel Goldsmith were standing on opposite sides of the road from each other. Goldsmith was kneeling down and holding Smith’s dog. Smith chose this inopportune moment to beckon her dog, which faithfully ran toward her and directly into plaintiff’s path. Unable to stop his bicycle in time, plaintiff struck the dog and flew from his bike into the annals of legal history.
In keeping with the Bard rule, the Doerr case was dismissed by the Supreme Court on a defense motion for summary judgment, because the dog had no prior harmful proclivity when its owner beckoned it into the path of the plaintiff’s bicycle. The Appellate Division reversed[4] based upon the “fundamental distinction” referenced by the Hastings Court. They sidestepped the Bard Rule, shifting focus from the dutiful behavior of the dog to the derelict actions of the defendant. They likened the case to one where someone tosses a ball into another person’s path, thereby launching an instrument of harm.  Defendant appealed to the Court of Appeals.
On June 11, 2015, in a 4-3 decision, the New York Court of Appeals reversed the Appellate decision and granted summary judgment to defendant Julie Smith, dismissing Doerr’s case. The high court examined the history of animal liability in New York, weighed considerations of logic and fairness against societal expectations, insurance ramifications, and judicial consistency, and chose to double-down on the Bard prohibition against negligence claims for injuries caused by domestic pets.
In a controversial concurring opinion, Judge Sheila Abdus-Salaam rejected the Appellate Division’s ball analogy, pointing out that a ball, once tossed, is constrained by the laws of physics, while a dog has an actual choice. It was, the Judge maintained, the volitional behavior of the dog that caused the harm, and not the act or omission of the owner. After all, a dog won’t always follow its owner’s command, and we can’t possibly know what a dog is actually thinking when it acts or fails to act. On the other hand, the Judge allowed, if the defendant had “tossed” the dog across the road, a negligence claim would have likely been viable.  Thus, under the majority rule, a defendant who gracelessly tosses a ball to her dog in a crowded park can be held liable for negligence if the ball hits someone, but not if her dog lunges to catch the errant ball and crashes into someone.
Judge Abdus-Salaam acknowledged that the Bard rule will seem “unsatisfactory” in “a few cases”, but she cited various policy reasons in support of her decision to uphold Bard. For one thing, it is an “easy to apply bright-line rule.” Second, it keeps liability within manageable limits”; third, it encourages “domestic favorites” such as the dog and cat to “romp unguarded”, which arguably comports with societal expectations. And fourth, disturbing Bard would run afoul of “the critical considerations of stare decisis.”
Chief Judge Lippman dissented, insisting the majority decision “contradicts any sensible logic”, as “[d]efendants are immunized under this rule from the consequences of their own negligent actions for no reason other than that a dog happened to be involved in the accident.” He called for a second exception to the Bard rule where the owner not only set in motion a chain of events, but “directed the animal to engage in conduct that caused direct and immediate harm.” Judge Abdus-Salaam rejected this proffered standard since it would require the fact-finder to speculate as to what really went on inside the mind of the dog.
Judge Fahey, joined by Judge Pigott in his dissent, attacked the flimsy legal foundation of the Bard prohibition and endorsed overruling that case altogether and joining the vast majority of other U.S. states in adhering to the Restatement doctrine, ie. permitting a common law claim for negligence whenever the owner fails to prevent his or her animal from causing harm. Remarkably, New York is the only state in the union that expressly rejects the Restatement approach.
Judge Fahey downplayed the importance of “unguarded canine romping”, reiterating the language from Justice Kaye’s 1990 dissent in a similar case[5]: “[w]hatever may have been the expectation in an earlier, more agricultural age, it is no longer expected that dogs will roam the highways of this State at will.” On the issue of stare decisis, Judge Fahey pointed out that the holding of Bard collides with a “prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience…the Restatement position.”
Judge Abdus-Salaam concluded that the “obvious shortcomings” of the Bard rule did not necessitate the disturbance of precedent on the issue, stating “[w]e do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time…none of those things has occurred.”
So for now, a plaintiff injured by a domestic pet must prove, without exception, that defendant had notice of the dangerous proclivities of the animal. The Court did leave open the possibility of liability for “supervision of an animal undertaken with the intent to cause harm to another or with conscious disregard of a known and unjustifiable risk of harm to another.”
Judge Abdus-Salaam suggested that the viability of the Bard Rule should now be considered “settled.” This may be wishful thinking.
Note: Doerr v. Goldsmith was decided concurrently with the case of Dobinski v Lockhart, which is not discussed herein due to editorial constraints.

Jeffrey T. Baron is the owner of Baron Law Firm, an insurance defense firm located in Suffolk County handling cases throughout Long Island and New York City.  He has lectured at the Suffolk County Bar Association and has defended personal injury actions since his admission to the Bar in 1996. He can be reached at Jeff@baronlawfirm.net.

[1] Doerr v. Goldsmith, 2015 NY Slip Op 04752 (2015)

[2] Bard v. Jahnke, 6 N.Y.3d 592 (2006)

[3] Hastings v Sauve, 967 N.Y.S.2d 658 (2013)

[4] Doerr v. Goldsmith, 978 N.Y.S.2d 1 (App Div., 1st Dept 2013)

[5] Young v. Wyman, 76 N.Y.2d 1009 (1990)

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