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THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff slipped and fell because of the condition of the floor, and not because of the actions of an animal, a cow which plaintiff was walking back to her stall when both he and the cow fell:

The plaintiff, who was working as a farrier, went to the defendant Bobby Wickham’s farm to service his cows. The cement area that the plaintiff had to traverse to transport each cow to and from her stall allegedly was covered with feces and urine. When the plaintiff complained to Wickham that the floor was very slippery, Wickham allegedly stated that he did not have sand to put down on the ground. The plaintiff serviced six or seven cows without incident. While he was working, the plaintiff saw cows slip on the floor. After servicing the cow at issue, the plaintiff was walking the cow back to her stall when he slipped and fell on the floor. The cow then fell on top of the plaintiff’s right foot.

… Wickham moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the sole means of recovery of damages for injuries caused by a domestic animal was upon a theory of strict liability, whereby the plaintiff must establish that the domestic animal had vicious propensities and that the owner knew or should have known of the domestic animal’s vicious propensities, which the plaintiff did not allege here. …

* * * The evidence submitted raised triable issues of fact as to whether the plaintiff allegedly slipped and fell due to the condition of the floor and whether the cow’s subsequent contact with the plaintiff was causally related to the condition of the floor. Gomez v Wickham, 2025 NY Slip Op 02760, Second Dept 5-7-25

Practice Point: Just because a plaintiff’s injuries are caused by an animal, here a cow falling on plaintiff, does not require that plaintiff’s lawsuit be brought under animal law (strict liability based on the animal’s vicious propensities). Plaintiff successfully alleged, under a negligence theory, that both he and the cow fell because of the slippery condition of the floor.

 

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