THE STRICT LIABILITY THEORY APPLIES HERE WHERE PLAINTIFF WAS KICKED BY DEFENDANT’S HORSE; QUESTIONS OF FACT ABOUT WHICH HORSE KICKED PLAINTIFF AND PLAINTIFF’S AWARENESS OF THE RISK PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined questions of fact precluded summary judgment in this action stemming from defendant being kicked by plaintiff’s horse. There were questions of fact about which of plaintiff’s horses kicked the plaintiff and whether plaintiff was aware of the risk of approaching the horse. Plaintiff was familiar with the horses and defendant had called plaintiff because two of the horses were fighting. The court rejected the argument that negligence, as opposed to strict liability, was the applicable theory:

Agriculture and Markets Law § 108 (7) classifies horses as domestic animals, and ” ‘[w]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of 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” … (quoting Bard v Jahnke, 6 NY3d 592, 599 [2006] …) . Contrary to plaintiff’s contention, the exception to that rule set forth in Hastings v Sauve (21 NY3d 122, 125-126 [2013]) does not apply here, inasmuch as the horse did not stray from defendant’s property .. . Contrary to plaintiff’s further contention, he may not maintain a negligence claim against defendant under the reasoning of Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541 [2020]). In that case, the Court of Appeals held that the Bard rule, set forth above, does not apply to a veterinary clinic … . The Court reasoned that the Bard “line of precedent concerning animal owners [was not] directly implicated” in Hewitt … . By contrast, inasmuch as defendant was the owner of the horse that injured plaintiff, the Bard rule of strict liability applies here. Shuttleworth v Cory, 2023 NY Slip Op 06635, Fourth Dept 12-22-23

Practice Point: Strict liability, not negligence, controls in this horse-kick case. The recent Court of Appeals applications of a negligence theory to injury caused by animals do not apply here.