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Jun 10 2015

NY Court Lets Dog Owners Off the Hook For Dogs Running Off the Leash

NY has long held that dog owners cannot be held liable for injuries caused by their domestic animals unless the injured party could prove that the owners were aware of the animal’s vicious propensities “Vicious propensities” did not mean you had to show they were necessarily aggressive or likely to bite, just that the owner had special knowledge that their animal was hard to control or prone to cause injury. This is called strict liability because if you could prove the owners had that knowledge they were automatically liable for the injury caused. Two recent cases that had divided the lower appellate courts looked likely to crack that difficult standard and open the law up to allow lawsuits based on mere negligence -if one could prove that a reasonable person would have controlled their dog in a better fashion and that the failure to exercise reasonable care led to injury then the owner would be responsible.

This is the standard by which humans are judged – the reasonably prudent person. We have an obligation to act responsibly to avoid injuring one another. We owe a duty to avoid behaving (or not behaving) in such a manner that could foreseeably cause injury to others. But the NY Court of Appeals rejected changing the law and let two sets of dog owners get away with causing injuries by what most folks would consider to be imprudent behavior.

In Doerr v. Goldsmith a couple was walking their dog near the bicycle loop in Central Park during the time that the City allows dogs to be off leash. They split up and were on opposite sides of the road when Mr. Doerr came on his bike on the path meant for bikes. That’s when the girlfriend decided to call the dog over to her from where her boyfriend was holding it on the other side of the road. Mr. Doerr tried to scream out to the couple to control their dog just prior to the impact but it was too late. The dog responded to the call and bolted across the road where it collided with Mr. Doerr, causing him to be thrown off his bike and become seriously injured.

In Dobinski v. Lockhart the Dobinksis were riding their bikes on a rural public road near the Lockhart farm. The Lockharts were inside their home when Ms. Lockhart decided to release her two German Shephards which promptly ran through a fence and 60 feet across the road to knock Ms. Dobinski off her bike once again causing very serious injuries.

The majority opinion (7-2 in the Doerr case and 4-3 in the Dobinski case) didn’t say much; they basically relied on the nearly 200 year old history of only allowing lawsuits based on prior knowledge of vicious propensities. They were unfazed by the fact that those cases arose when NY was a rural community and everyone had dogs running loose on their farms. By the way it has always been then law that if you negligently allow a farm animal to get loose and it knocks someone down, you are responsible. The immunity only applies to pets.

Justice Abdul-Salaam, while agreeing with the decision, felt obligated to write her own lengthy opinion which frankly didn’t help much and which I think is just plain wrong. After taking us through a lengthy dissertation on the history of dog liability, she makes a statement that is the central argument to her decision:

“The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received”

Beware of owner!

Beware of owner!

Really? Do I know that I may encounter wild unrestrained dogs in the streets of NY? And if I do, why does that absolve the person who allowed them to go wild and unrestrained? Maybe that knowledge on my part adds some liability to me but it should not immunize the dog owner. after all, I know that folks occasionally run red lights and therefore the law requires me to pay attention when going through an intersection even if I have the green, but my knowing that people sometimes run red lights does not get the red-light-runners off the hook all the time which is the equivalent to what this ruling does for negligent dog owners. Abdul-Salaam relies on the doctrine of stare decisis to support her position – that states that once courts have decided issues, they should not re-visit or seek to change the law so that others can rely on the precedents set. She stated, “In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time.” Well I think in light of today’s dog urban dog culture, letting negligent dog owners get away with seriously hurting people is both irrational and unjust.

Chief Justice Lippman agrees, dissenting in both cases. He put it this way:
[A]pplication of the rule in this instance would serve only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident.

Well said. Negligence is negligence. If someone fails to see the foreseeable risk of injuries to others by their actions or inaction, and that failure causes harm they should be held responsible. The other dissenter, Judge Pigott called for a repeal of the strict liability law and for a return to common law negligence in dog cases:

We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. I cannot join the Court’s memorandum opinion and I disagree with the analysis put forward in the concurring opinion

What he said.

Read the whole decision Here

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2 comments

  1. Nathan Thurm (2nd cousin to Carlos Danger)

    “This is called strict liability because if you could prove the owners had that knowledge they were automatically liable for the injury caused”

    “Professor,” that is not strict liability. That would be demonstrating they were NEGLIGENT insofar as they knew their animal had dangerous propensities and still did not keep them away from people. A strict liability rule in this context would be you are liable for injuries your animal causes — period. No regard to the animals propensities or your knowledge or lack thereof.

    1. Oscar Michelen

      Nate – Can I call you Nate? – That’s why I phrased the sentence with “This is “called” strict liability as opposed to just “This IS strict liability” The standard used by the courts is that once you establish knowledge of vicious propensities there is no defense to the damages caused by the dog. There was and is no pure strict liability in dog-bite cases.

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