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November 21, 2013

Owners of Domestic Animals May Be Held Liable Under Ordinary Tort Principles

New York's Court of Appeals has consistently held that owners of domestic animals may be held liable only under a strict liability theory where there is proof of prior vicious propensities. See e.g. Petrone v. Fernandez, 12 N.Y.3d 546 (2009); Bard v. Jahnke, 6 N.Y.3d 592 (2006). However, in what may be a significant shift in the law on this issue, the Appellate Division, First Department, recently held that owners of domestic animals may now, under certain circumstances, be held liable under a common law negligence theory. See Doerr v. Goldsmith, 2013 N.Y. Slip Op. 06442 (October 3, 2013).

In Doerr, plaintiff Doerr was riding his bicycle on a road in Central Park. Defendant Goldsmith was "hugging" a dog on the left side of the pathway. Goldsmith's girlfriend, defendant Smith, who owned the dog, was across the pathway on the right side of the road. Despite the plaintiff's shouted warning "watch your dog," Smith called the dog to come to her, which prompted the dog to run out in front of Doerr's bicycle. Doerr was unable to avoid a collision with the dog and suffered injuries. Doerr commenced an action against the two defendants claiming that the defendants were negligent in allowing the dog to cross in front of him. Doerr did not allege that the defendants were liable because of known vicious propensities.

The trial court denied Smith's motion for summary judgment. Smith appealed and the Appellate Division, First Department, initially reversed the trial court and granted summary judgment in defendant's favor. However, following the First Department's decision, the Court of Appeals renders its decision in Hastings v. Sauve, 21 N.Y.3d 122 (2013), where the Court of Appeals held that an owner of a "farm animal" may be liable under an ordinary negligence theory if it allows that animal to negligently stray from the property on which it is kept. The Court of Appeals left open the issue of whether this new rule would apply to owners of dogs, cats or other household pets.

On the heels of the Hastings decision, the Appellate Division, First Department granted Doerr's motion for re-argument, vacated its prior decision, and affirmed the denial of defendant's summary judgment motion. In reaching its decision, the First Department reasoned that by releasing the dog into traffic, the defendants turned the dog into "an instrumentality of harm." The Court compared the facts in this case to "two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball's path." The Court ultimately reasoned that it was "the defendants' actions, and not the dog's own instinctive, volitional behavior, that most proximately caused the accident."

Significantly, two Justices dissented in Doerr, providing the defendants an opportunity to appeal to the Court of Appeals as a matter of right. In the event that the defendants proceed with an appeal, the Court of Appeals' decision should clarify the circumstances of when, if ever, the owner of a domestic animal may be held liable under a common law negligence theory.

If you require further information regarding the information, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area at (585) 295-4424 or


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