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Animal Owner Liability: Is Negligence on the Comeback?

, New York Law Journal

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Brett Nomberg
Brett Nomberg

Although current law in New York State does not recognize a common law negligence action for cases involving a domestic animal causing harm, this was not always the case. The Court of Appeals previously recognized two causes of action, one in common law negligence, and one in strict liability for a dangerous animal. The latter action placed greater responsibility upon a person with a known dangerous animal. For strict liability, it was necessary to prove the animal had vicious propensities which the owner knew or should have known.

However, in 1920 the common law negligence action was carved out of existence by the Court of Appeals in an innocuous decision which led to today's precedent. The precedent has left many injured victims without recourse, and the rule has many critics. A motion in Doerr is pending in the First Department seeking leave to appeal to the Court of Appeals.

The History

The earliest animal cases involved the harm animals caused to other animals and the resulting financial losses to the owners. A strict liability theory was embraced. In Vrooman v. Lawyer, 13 Johns. 339, N.Y. LEXIS 101 [1816], a bull gored a horse; in Van Leuven v. Lyke, 1 N.Y. 515 [1848], pigs killed an owner's cow while giving birth.

The first salient case concerning personal injuries by an animal was Dickson v. McCoy, 39 N.Y. 400, 7 Transc. App. 111 (1868). In Dickson, a horse ran away from the owner causing a person to sustain injuries. There were two judges on the Court of Appeals, and both affirmed for different reasons. Judge Charles C. Dwight acknowledged the negligence action under the common law and explained why the vicious propensities rule will not be necessary in every case involving an animal.

The finding of the jury, under the charge of the court, was clearly to the effect that the defendant was guilty of negligence in suffering his horse to go at large upon the sidewalk, as shown in the case. And there was a sufficient allegation to that effect, in the complaint. It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner's negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault. If the most gentle horse be driven so negligently as to do injury to persons or property, the owner or driver will be responsible. Certainly, not less so if the horse be negligently turned loose in the street without restraint or control.

Dickson v. McCoy, 39 N.Y. 400, 7 Transc. App. 111 [1868]).

In Muller v. McKesson, 73 N.Y. 195 (1878), a security dog routinely let loose at night at a warehouse attacked the watchman when the person charged with securing the dog each morning failed to do so. The Court of Appeals held that the owners of known vicious dogs should be strictly liable and contributory fault will not be a defense. The court suggested that if the actions of the plaintiff were so egregious, a fact finder may consider whether there was proximate cause.

The Court of Appeals and the appellate divisions continued recognizing two separate cause of actions. Moynahan v. Wheeler, 117 N.Y. 285, 22 N.E. 702 (1889); Haines v. Keahon, 46 A.D. 164, 61 N.Y.S. 757 (1st Dept. 1899); Farber v. Roginsky, 123 A.D. 38, 107 N.Y.S. 755 (2d Dept. 1907).

However, everything changed in Hosmer v. Carney, 228 N.Y. 73, 126 N.E. 650 (1920), when Judge Chester McLaughlin, writing a unanimous opinion for the Court of Appeals eliminated the common-law negligence claim concerning animals as if it never existed. In Hosmer, a farm worker asked the owner for a horse to help with his duties. The worker picked a horse and it was purchased by the owner. The worker told the owner the horse was a little mean, but that it was what he needed for the work.

One day the horse refused to go back in his stall and when the worker went behind the horse and placed his hand on the horse's rear, the horse kicked, killing the worker. Notably, the horse had recently been treated for a serious illness. No evidence was presented that the horse was aggressive or attacked anyone in its 20-year life. Suit was filed alleging vicious propensities, and the jury found in favor of the plaintiff.

The court wrote an opinion stating that there was only one recognized cause of action involving animals, and that is under strict liability.

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