For more than a decade, New York has been a “unique outlier” among the states, rejecting recovery of damages for personal injuries sustained by a domestic animal on the theory of negligence. See Doerr v. Goldsmith, 25 N.Y.3d 1114, 1149 (2015) (Fahey, J., dissenting).

Prior thereto, the prospect of a negligence claim structured the activity of New Yorkers relative to their domestic animals, be it a horse (see, e.g., Dickson v. McCoy, 39 N.Y. 400, 401-03 (1868); Unger v. Forty-Second St. & Grand St. Ferry R.R. Co., 51 N.Y. 497, 500 (1873), Benoit v. Troy & L. R. Co., 154 N.Y. 223, 225-27 (1897)), or, more prevalently, a dog (see, e.g., Hyland v. Cobb, 252 N.Y. 325, 326-27 (1929); Young v. Wyman, 76 N.Y.2d 1009, 1012 (1990)).

This longstanding jurisprudence changed as a result of the Court of Appeals case Bard v. Jahnke, 6 N.Y.3d 592, 599 (2006). At that time, strict liability—requiring a showing that the owner “knows or has reason to know” the animal has “dangerous propensities abnormal to its class”—became the only viable claim. Id. at 603, n. 2 (citation omitted).

Pre-Bard, the strict liability cause of action coexisted with a cause of action founded in negligence (see, e.g., Benoit, 154 N.Y. at 225), but it now stands alone as the injured victim's sole route to recovery.

Seven years after this change in the law, it appeared that the Court of Appeals was making a shift back to allow for recovery in negligence, but limited its scope to situations where “a farm animal has been allowed to stray from the property where it is kept.” Hastings v. Sauve, 21 N.Y.3d 122, 124 (2013). Here, the court held that a contrary rule would “immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property.” Id. at 125. The question of whether this exception “appli[ed] to dogs, cats or other household pets” had to “await a different case.” Id. at 126; see also Heymann, “Is the 'Vicious Propensities' Rule Losing its Bite?,” N.Y.L.J., Feb. 18, 2015 at 4, col. 1.

That different case, Doerr v. Goldsmith, would come just two years later. The Court of Appeals felt “constrain[ed]” in finding against a plaintiff-cyclist who was injured when the dog's owner allowed it to run across a bike path. Because household pets are not “farm animals subject to an owner's duty to prevent such animals from wandering unsupervised off the farm,” there could be no negligence claim. Doerr, 25 N.Y.3d at 1116 citing Hastings, 21 N.Y.3d at 124-126.

Thus, the case law remains that the owner of a domestic pet owes no duty of care to prevent foreseeable injuries caused by that animal. As Judge Eugene Fahey pointed out in his Doerr dissent, in this respect, New York is “a unique outlier” among the states. Id. at 1149 (Fahey, J., dissenting).

At the present time, pet owners can “act in any number of objectively unreasonable ways when supervising their nonvicious pets.” See Scavetta v. Wechsler, 149 A.D.3d 202, 211 (1st Dept. 2017) (citations omitted).

QUERY: What is the liability of the landowner who is not the owner of the domestic animal that caused injury to another on the property, and there is no proof that such landowner had prior knowledge of the animal's vicious propensities?

'Hewitt'

This was the issue that confronted the Appellate Division, Third Department in Hewitt v. Palmer Veterinary Clinic, PC, 167 A.D.3d 1120 (3d Dept. 2018). Here, the plaintiff took her cat to be examined at a veterinary clinic operated by the defendant, where she was attacked by a pit bull in the waiting area. The dog was not owned by the clinic. The record on appeal shows that the dog—who had just undergone surgery—slipped from its leash, jumped on the plaintiff, closed its mouth on her ponytail, and pulled her backward, ripping hair from her scalp. There was a two-week-old baby in the waiting area at time of attack. The plaintiff submitted proof that the clinic did not use reasonable care when it brought the agitated dog into the waiting area without a secured collar, anesthesia or proper pain medication.

The plaintiff did not bring a strict liability claim against the clinic, asserting instead claims “grounded in negligence and premises liability.” Id. at 1122. The plaintiff argued that the strict liability rule did not apply because, while the dog was on the property of the clinic, it did not own the animal. The record further disclosed that the clinic did not have notice of that specific dog's vicious propensities.

The majority started its analysis by recognizing that the absence of a negligence cause of action “has not escaped criticism” from appellate judges. Id. at 1121 (citations omitted).

Court of Appeals judges have expressed dissatisfaction with the existing “strict liability” limitation to seek recovery for injury inflicted by domestic animals. See, e.g., Bard, 6 N.Y.3d at 602 (“For all the faults of modern tort law, and they are many, I do not think that this attempt to cling to the certainties of a distant era will work out well.”) (R.S. Smith, dissenting); Petrone v. Fernandez, 12 N.Y.3d 546, 552 (2009) (“[I]t was wrong to reject negligence altogether as a basis for the liability of an animal owner.”) (Pigott, J., concurring); Doerr, 25 N.Y.3d at 1142-43 (“We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”) (Fahey, J., dissenting).

Commentaries on this aspect of the law have expressed similar “criticism.” See, e.g., Heymann, “'On Constraint', the 'Vicious Propensities' Rule Continues,” N.Y.L.J., June 13, 2017 at 4, col. 1; Miner, “When Animals Attack in New York,” N.Y.L.J., Feb. 28, 2012 at 4, col. 1; Dollinger and Jackson Jr., “One bite for injustice: Changing New York's dog bite rule,” Daily Record, Jan. 29, 2019, at 5, col. 2; Kaiser, “A Unique Outlier”: Liability of Pet Owners in New York State, 89 N.Y. St. B.A. J. 8 (July/August 2017).

In any event, the issue before the Hewitt court was not whether a negligence cause of action would lie against the owner of the dog, but whether the clinic, as owner of the property, failed to “adequately exercise[] control” over the dog under a negligence theory. 167 A.D.3d at 1125 (Egan, J.P., dissenting in part).

The majority found guidance in Bernstein v. Penny Whistle Toys, 10 N.Y.3d 787 (2008), where an infant was bitten by a dog in a toy store. The owner of the store was also the owner of the dog. To the extent there was “no evidence … that the dog's owner had any knowledge of its vicious propensities,” the Court of Appeals affirmed an order of dismissal. Id. at 787.

Bernstein is clearly distinguishable from Hewitt, as the Bernstein holding did not explicitly speak to the liability of a landowner who did not own the canine that attacked on its premises. Yet, the majority was persuaded that other departments of the Appellate Division had invoked the Bernstein decision to “appl[y] the strict liability rule in cases where the plaintiff seeks to recover from a defendant who maintained the premises where the injury occurred, but did not own the dog.” Hewitt, 167 A.D.3d at 1122.  

For instance, in Easley v. Animal Med. Ctr., 161 A.D.3d 525 (1st Dept. 2018) a dog bite occurred at a veterinary hospital and, because the dog “had no known vicious propensities,” the veterinary hospital was not liable.

In Hargro v. Ross, 134 A.D.3d 1461 (4th Dept. 2015) the plaintiff was bitten while inside the defendant's restaurant. The defendant, however, “lacked actual or constructive knowledge that the dog had any vicious propensities,” and the complaint was dismissed. Id. at 1462 (citation omitted).

Finally, the storeowner defendants in Christian v. Petco Animal Supplies Stores, 54 A.D.3d 707, 708 (2d Dept. 2008) achieved judgment as a matter of law by submitting evidence that they “were not aware, nor should they have been aware, that [the] dog had ever bitten anyone or exhibited any aggressive behavior.” The “remaining contention” was “without merit.” Id.

The Hewitt majority elected to follow the other departments, extending Bernstein—where the landowner was the animal's owner—to the present situation where the landowner was not the animal's owner. Because the clinic “did not have notice of the dog's vicious propensities,” an order of dismissal was affirmed. Hewitt, 167 A.D.3d at 1122 (citations omitted).  

The Dissent

Justice Presiding John C. Egan Jr., the lone dissenter, did not feel constrained by Bernstein or its Appellate Division progeny. The clinic did not own the animal, and given the rationale behind the strict liability rule, it “[did] not fit the situation”:

The rationale behind the “vicious propensity rule” is that an animal owner is in a unique position, from day-to-day familiarity, to observe his or her animal's personality and demeanor and act accordingly based on that knowledge. Thus, the animal owner who is surprised for the first time by his or her animal's injurious behavior is not civilly liable. However, the owner who, because of past observation, is not surprised by his or her animal's injurious behavior is held strictly liable. It seems to me that, given the rationale underpinning this rule, it does not fit the situation where, as here, the defendant is not the animal's owner, but only the owner of the property on which the animal's injurious behavior occurred and, therefore, typically has no knowledge, one way or the other, of the animal's propensities.

In Justice Egan's opinion, he would have applied the “general principles of negligence and premises liability” and “set the matter down for a trial as to whether, under the circumstances, [the clinic] maintained its premises in a reasonably safe condition and/or adequately exercised control over the subject animal.”  Hewitt, 167 A.D.3d at 1125 (Egan, J.P., dissenting in part).   

Practical Considerations

Justice Egan makes a valid point. Not only must the animal have the “propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Dickson, 39 N.Y. at 403), but the defendant must have “kn[o]w[n] or should have known” of that propensity (Cruz v. Stachowski, 142 A.D.3d 1326, 1328 (4th Dept. 2016)).

But how do you show that someone exercising control over an animal at the time of attack “should have known” of its tendencies when that person does not spend any appreciable time with the animal?

The Pattern Jury Instruction (PJI 2:220) provides no guidance:

… If the vicious propensities of the animal had existed for such a period of time that a reasonably prudent person should have known about them, you will find that [the defendant] knew about them. In deciding this you may consider the nature and frequency of the animal's acts as well as the length of time over which they had continued …

(emphasis added).

This “commonsense rule of notice” is based on a policy determination that New Yorkers should “manage their affairs based on the known risks of daily life.” Doerr, 25 N.Y.3d at 1137-38 (Abdus-Salaam, J., concurring).

Where the “daily life” of the landowner does not entail exposure to—and thus familiarity with—the proclivities of the animal, it would not rise to the level of a “known risk.”

The “daily life” of a landowner or possessor of property entails instead a duty to “maintain [the] property in a reasonably safe condition in view of all the circumstances.” Basso v. Miller, 40 N.Y.2d 233, 241 (1976). This duty of reasonable care is not delegable, no matter who—or what—comes onto the property. See, e.g., Agness v. State, 159 A.D.3d 1395, 1396 (4th Dept. 2018) (landowner, aware of rabid fox on premises, liable for “negligent failure to take adequate steps to protect [third parties] from reasonably foreseeable danger”).

To be sure, when it comes to applying the strict liability rule “it is not material … whether the defendant is the owner of the dog or not.” Quilty v. Battie, 135 N.Y. 201, 204 (1892). What matters is “dominion and control” over the animal. See Powell v. Wohlleben, 256 A.D.2d 396, 396 (2d Dept. 1998).

If someone exercising dominion and control over a domestic animal knows of vicious propensities, then its owner—by operation of law—knows of those vicious propensities. See, e.g., Brice v. Bauer, 108 N.Y. 428, 432 (1888) (“that person's knowledge is the knowledge of the owner”) (citation omitted); see also Niland v. Geer, 46 A.D. 194, 195 (2d Dept. 1899) (knowledge of foreman “in charge of the dog during the absence of the family was sufficient notice to the owners”).

However, this rule of imputation does not appear to go both ways. The owner can be liable for failing to share knowledge of vicious propensities with someone taking possession of the animal (Hosmer v. Carney, 228 N.Y. 73, 75-76 (1920)), but there does not appear to be authority wherein the owner's knowledge of dangerous behavior can be imputed to someone who exercises some control over the animal (see, e.g., Greene v. Beckman, 286 A.D.2d 905, 906 (4th Dept. 2001)).

Conclusion

When it comes to a defendant who exercises control over a domestic animal but has little reason to know of its tendencies, the absence of a negligence cause of action “does not fit the situation.” Hewitt, 167 A.D.3d at 1124 (Egan, J.P., dissenting in part).  

The Hewitt plaintiff, lacking a two-justice dissent, asked the Court of Appeals to review the case. The motion was granted March 26, 2019.

The Court of Appeals should hold that a landowner is not absolved from a nondelegable duty simply because the instrument of harm was the domestic animal of another.

George M. Heymann, a former NYC Housing Court Judge, is of counsel at Finz & Finz and an adjunct professor of law at the Maurice A. Deane School of Law at Hofstra University. Matthew J. Kaiser is an attorney at William Mattar, PC in Rochester.