How often have trial judges been confronted with a rule of law that seems out of touch with the realities of the facts before them but are “constrained” to abide by it because of certain decisions rendered by the appellate courts. Sometimes that frustration even occurs in the appellate division by the holdings of the Court of Appeals.

One such situation is the ongoing debate between the appellate divisions departments and the Court of Appeals, and within that court itself, regarding the strict liability “vicious propensities” rule with respect to injuries caused by domestic animals, as a direct result of the owner's conduct, which prohibits recovery on the theory of negligence.

The leading cases that are the subject of this debate are Collier v. Zambito, 1 N.Y.3d 444 (2004), Bard v. Jahnke, 6 N.Y.3d 592 (2006), Doerr v. Goldstein, 25 N.Y.3d 1114 (2015) and Hastings v. Suave, 21 N.Y.3d 122 (2013).1

'Collier'

In Collier, a young boy was injured when bitten on the face by defendant's dog. The dog was leashed and defendant encouraged the boy to approach. The dog lunged and bit him. Finding that there was no evidence that the owner was aware of prior vicious propensities of the dog, the Court of Appeals concluded that there was no basis to allow for recovery on the theory of negligence. Notwithstanding that this incident would not have occurred but for the defendant's actions, the court found that barking and running around is normal canine behavior unless it was proven to be threatening or menacing.