Committee on Animals and the Law

There has been a lot of recent activity in the New York State courts on the issue of liability for injuries caused by animals, and in particular dogs. One line of cases holds that liability can only be imposed upon an owner or custodian of an animal under a theory of strict liability, pursuant to which a showing must be made that the owner or custodian knew or should have known that the animal had vicious propensities. The other line of cases involved situations in which dogs were off leash, in violation of a local leash law, when the incident occurred. Some courts have allowed recoveries under a negligence theory based upon a showing that it was reasonably foreseeable that, as a result of the ordinance violation, that the animal would hurt the person. To date, because this latter approach revolves around violations of leash laws, it has been limited to dogs.

Which approach do you believe is the better approach and why?

Other than leash laws, are there other ordinances which could be used as the basis to argue that violation of them created a situation in which it was reasonably foreseeable that the animal would injure someone?

How would liability insurance be affected if the latter approach were to gain acceptance?

Would homeowners who share their homes with dogs in their households find it harder or more expensive to obtain liability insurance?

This summer, the Court of Appeals answered a question certified to it by the Second Department Appellate Division and in doing so, it reaffirmed a long standing principle of law on this State and resolved a conflict which had developed among the appellate division departments. In Petrone v. Fernandez, 910 N.E.2d 993, 12 N.Y.3d 546, 883 N.Y.S.2d 164 (2009), a mail carrier had sued a homeowner and a dog owner for injury to her finger which she incurred as she attempted to jump back into her vehicle after running away from a dog which she claimed was charging her. At the time of the incident, the dog had been unleashed and located on the front property of the homeowner. When the dog’s owner heard the mail carrier, he called his dog back to him and the dog complied.

The mail carrier’s law suit was based both upon strict liability and negligence causes of action. The first cause of action alleged that the defendants knew or should have known of the dog’s prior history of vicious propensities, and the second cause of action alleged that the defendants’ violation of a local leash law amounted to negligence with entitled her to recover for her injuries. The court observed that the dog did not bite, threaten or even make any contact with the plaintiff and indeed the plaintiff could not recall if the dog had even barked at her.

The court reiterated the principle that in New York State, “a domestic animal’s owner’s liability is determined solely by . . . the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities.” It expressly rejected the plaintiff’s attempt to have negligence be a basis for imposing liability, thereby clarifying the only standard recognized in this State for holding an animal’s owner liable for injuries that it may cause.

Do you agree with the court’s conclusion?

If you think that a plaintiff should be able to use a violation of a local ordinance to support a cause of action, what types of ordinances should they be?

If you are in favor of any other standard for holding domestic animal owners liable for injuries they cause, what is it?