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Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony

The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The defendant was charged with predatory sexual assault against a child.  The alleged victim was his daughter who 15 years old at the time of trial.  It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances.  The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims).  The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation.  People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13

 

Supreme Court’s Annulment of Regulation Permitting Out-Of-Competition Drug Testing of Harness Racehorses Reversed

The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law.  In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein and peptide-based drugs” because it conflicted with the permitted-use regulation. Matter of Ford v NYS Racing and Wagering Board, 514622, 3rd Dept, 6-6-13

 

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No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]

Plaintiff was injured when she fell from her horse.  The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run.  The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment.  After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:

“The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does  not present an  issue of negligence, as a matter of law” …. In this regard, defendant – who had  no  prior experience with horses – was  walking on  a public highway, where  she had  every right to be  (see Vehicle and  Traffic Law  §  1156  [b]).  She slowed down  to evaluate the horses and riders ahead  of her, and, while she did not stop, she was  still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs’ negligence claim also fails because they alleged no facts from which it could be inferred that defendant’s actions, in walking on a public street or otherwise, were the proximate cause of plaintiff’s injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13

 

No Cause of Action Based Upon “Vicious Propensities” When Plaintiff Knocked Down by Playful Dog

In determining summary judgment should have been granted to the defendant dog owners, the Third Department explained the defendants had demonstrated they had no prior knowledge of the dog’s vicious propensities.  The plaintiff was injured when defendant’s dog [Delilah] bumped into her while running in play, activity the Third Department determined was “normal canine behavior” which could not be considered a vicious propensity:

It is well established that “‘the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities'” …. As the movants, it was defendants’ burden to establish that they had no prior knowledge that Delilah had any vicious propensities …. Notably, a vicious propensity does not  necessarily have  to be  “dangerous  or ferocious” but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long  as “‘such proclivity results in the injury giving rise to the lawsuit'” .   Nonetheless, “normal canine behavior” is insufficient to establish a vicious propensity ….  Bloom v Van Lenten, 515606, 3rd Dept, 5-16-13

 

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Normal Negligence Theories Apply to Injury Resulting from Animal Wandering Off (Cow Struck By Car)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the line of strict liability “knowledge-of-an-animal’s-vicious-propensities” cases did not apply to this case, where a cow was negligently allowed to wander off, causing injury to the plaintiff who struck the cow with her car.  In a case like this, normal negligence theories apply:

[Here the claim] … is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard — that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 NY3d at 599) — in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.  We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.  Hastings v Sauve, et al, No 78, CtApp, 5-2-13

 

Normal Behavior of Horse (Jerking Head Back) Not Actionable​

The Court of Appeals affirmed the appellate division’s ruling that the plaintiff could not recover for injury to her hand resulting from a horse’s jerking its head back when plaintiff was holding the halter.  The Court of Appeals wrote:

Under the rule of Bard v Jahnke, (6 NY3d 592, 596-597 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s “vicious propensity” or “propensity to do any act that might endanger the safety of the persons and property of others” …. No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of “behavior that is normal or typical for the particular type of animal in question” … .  Bloomer v Shauger, No 79, CtApp, 5-2-13

 

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No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog, Even Where Dog Owner May Be Negligent

Where the plaintiff was injured when defendant’s dog collided with his bicycle, the First Department determined defendant’s (the dog owner’s) motion for summary judgment should have been granted, despite allegations of negligence on the part of the defendant (there was a dissent):

Plaintiff was injured when, while riding his bicycle, he collided with defendant’s dog. Plaintiff alleges that defendant was negligent because as plaintiff was riding nearby, defendant called for the dog, which was not wearing a leash, to come to her, resulting in the dog’s running into plaintiff’s path of travel.

“New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” …. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities …. The term “vicious propensities” includes “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” …. Here, there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted ….  Doerr v Goldsmith, 2013 NY Slip Op 02501, 9030, 103840/10, 1st Dept, 4-16-13

 

Pit Bull Acted in Self-Defense and Should Not Have Been Deemed “Dangerous;” ”Dangerous” Finding Can Not Be Based Solely On the Dog’s Breed

The Third Department determined that a pit bull had acted in self-defense when attacked by another dog which broke free of its leash and, on that basis, reversed the “dangerous dog” finding.  The Third Department noted that a “dangerous dog” finding should not be based solely on the breed of the dog:

The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have  repeatedly  held  that  “‘there is no  persuasive  authority  for the proposition that a court should take judicial notice of the ferocity of any  particular type or breed  of domestic animal'” … .  Matter of People … v Shanks, 514029, 3rd Dept 4-4-13

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