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Complaint Based Upon Injury Caused by a Horse Which Had Gotten Loose After Defendant Rode the Horse to a Tavern Could Be Amended to Plead Negligence of the Horse’s Owner as Well as Strict Liability/Vicious Propensities in the Alternative

The Third Department determined plaintiff should be allowed to amend the complaint to include a negligence cause of action against the owner of a horse (Whiskey) which injured plaintiff.  The two theories, negligence and strict liability, can be pled in the alternative. The defendant rode the horse to a tavern.  While the defendant was in the tavern, the horse broke loose.  Plaintiff helped get control of the horse and was injured when he was holding the reigns.  The Third Department noted the 2013 Court of Appeals decision (Hastings) which held that a lawsuit based upon injury caused by a cow which had escaped the farm could be based upon the negligence of the owner in allowing the cow to escape, and not upon strict liability for the vicious propensities of the cow.  Here, both the negligence of the owner and vicious propensity/strict liability issues are raised by the facts:

Defendant apparently disputes plaintiff’s claim that Whiskey’s conduct constituted a vicious propensity–as opposed to normal equine behavior–upon which strict liability can be based. If defendant were successful in establishing the absence of a vicious propensity, this would lead to the very outcome of which the Court of Appeals disapproved in Hastings — defendant would be immunized for Whiskey’s behavior despite having been allegedly negligent in allowing the horse to roam from where it was being kept [FN3]. Inasmuch as we cannot predict how a jury will decide the question of whether Whiskey’s actions constituted a vicious propensity, we discern no reason why the two theories could not be pleaded in the alternative. Thus, if Whiskey’s actions were determined to constitute a vicious propensity, plaintiff would be limited to pursuing a claim based on strict liability … . If, however, a jury determined that Whiskey’s conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept… . Carey v Burton P Schwab, 2014 NY Slip Op 08096, 3rd Dept 11-20-14

 

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