Karen Hastings et al., Appellants,v.Laurier Sauve et al., Respondents, et al., Defendant.BriefN.Y.March 21, 2013To Be Argued by: Danielle N. Meyers, Esq. Time Requested: 15 Minutes New York St{lte COURT OF APPEALS KAREN HASTINGS and BRUCE HASTINGS, Plaintiffs-Appellants, -against- LAURIER SAUVE, ALBERT WILLIAMS and WILLIAM DELARM, Defendants-Respondents. BRIEF FOR DEFENDANT-RESPONDENT WILLIAM DELARM O'CONNOR, O'CONNOR, BRESEE & FIRST, P.C. Atlomeys.for Defendant-Respondent William Delarm 20 Corporate Woods Boulevard Albany, New York 12211 Phone: (518) 465-0400 Facsimile: (518) 465-0015 November 29, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................. 1 PRELIMINARY STATEMENT ............................................................................... 2 COUNTER-STATEMENT OF FACTS .................................................................... 6 ARGUMENT ........................................................................................................... 13 POINT I POINT II Plaintiffs' Claims Are Limited To Strict Liability Because Plaintiffs Allege Injuries For Harm Allegedly Caused By A Domestic Animal ................................................................................ 13 Plaintiffs' Complaint Was Properly Dismissed Because There Is No Evidence The Cow At Issue Had A Propensity To Interfere With Traffic Or Evidence That Defendant Delarm Had Knowledge Of The Cow's Propensity To Escape From The Pasture And Interfere With Traffic ....................... 18 POINT III A. The Issue Of Ownership Is Not Ripe For The Court's C "d . 77 ons1 eratwn ........................................................... ·-- B. The Evidence Soundly Established That Defendant Delarm Did Not Own The Cow At Issue And Thus Owned No Duty Of Care To The Plaintiff .......................................................... 22 CONCLUSION ........................................................................................................ 29 TABLE OF AUTHORITIES Cases Alia v Fiorina, 39 A.D.3d 1068 (3'd Dept. 2007) ........................................ 16, 18,20 Ars1anoglou v. Defayette, 105 A.D.2d 973 (3'd Dept. 1984) .................................. 23 Bard v. Jahnke, 6 N.Y.3d 592 (2006) .................................................... 13, 14, 15, 19 Becovic v. Poisson & Hacket, 49 A.D.3d 435 (4th Dept. 2008) ...................... 27 Bernstein v. Penny Whistle Toys. Inc., 10 N.Y.3d 787 (2008) ............................... 13 Collier v. Zambito, 1 N.Y.3d 444 (2004) .................................................... 13, 14, 18 Doumbia v. City of New York, 78 A.D.3d 587 (1st Dept. 2010) ............................ 27 Filbeiio v. Heck's Tavern, Inc., 37 A.D.3d 1007 (3'd Dept. 2007) ......................... 22 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) ................................ 22, 28 Hastings v. Sauve, 94 A.D.3d 1171 (3d Dept. 2012) ............................................... .4 Nidzyn v. Stevens, 148 A.D.2d 592 (2"d Dept. 1989) ............................................. 23 Petrone v. Fernandez, 12 N.Y.3d 546 (2009) .............................................. 13, 14, 16 Raux v. City of Utica, 59 A.D.3d 984 (4th Dept. 2009) ................................ 27 Roberts v. Joller, 39 A.D.3d 1224 (2007) .......................................................... 16, 20 Rodriguez v. Messenger, 108 A.D.2d 1085 (3'd Dept. 1985) .................................. 23 Smith v. Reilly, 17 N.Y.3d 895 (2011) ........................................... 13, 14, 16, 18,20 Staller v. Westfall, 225 A.D.2d 885 (3'ct Dept. 1996) ........................................ 18, 19 Vichot v. Day, 80 A.D.3d 851 (3d Dept. 2011) .................................................. .4, 18 Other Authorities Restatement (Second) of Tmis Sections 518 (g) ..................................................... 16 Restatement (Second) ofTmis Sections 518 (h) ..................................................... 16 ii COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Whether plaintiff's complaint which only alleges a cause of action for negligence for injuries caused by a cow in the roadway was properly dismissed as to all defendants? A. The Appellate Division, Third Department, in affirming the decision of the Supreme Comi, correctly held that cases involving a domestic animal must be pled in strict liability and that plaintiff failed to submit admissible evidence of the domestic animal's vicious propensities. 1 PRELIMINARY STATEMENT Respondent/defendant William Delarm (hereinafter defendant Delarm or Mr. Del arm) submits this brief in opposition to the appeal of the appellant/plaintiff ·seeking reversal of the Order of the Third Department, Appellate Division dated April 5, 2012. Plaintiffs commenced the present action to recover damages for injuries allegedly sustained by Mrs. Hastings in a motor vehicle accident on September 11, 2007 at approximately 1:30 a.m. on County Route 53 in the Town ofNotih Bangor New York. Plaintiffs allege that on said date, while operating a van, Mrs. Hastings struck a cow that was present in the roadway. Plaintiffs' complaint asserts causes of action against Laurier Sauve (hereinafter defendant Sauve or Mr. Sauve), Albeti Williams (hereinafter defendant Williams or Mr. Williams), and defendant Delan11, all sounding in negligence (A. 15-19) ("A" shall refer to the Appellant's Appendix). In their complaint, plaintiffs allege that defendants owned the cow, owned the real propetiy upon which the cow was boarded and/or were responsible for ensuring that the cow was properly fenced and/or otherwise restrained from entering the roadway (A. 16). Specifically, plaintiffs claim the defendants were negligent: (1) in allowing the cow to become loose and in failing to control the cow (A. 16); (2) under 2 principles of res ipsa loquitor on the basis that cows do not generally wander unattended on a public roadway absence negligence (A. 17); and (3) in allowing the fence around the pasture to be in a dangerous and defective condition, such that the cow was permitted to enter the roadway, and in failing to warn of the condition (A. 18). Plaintiffs did not plead a strict liability claim (A. 15-19). Since the inception of the lawsuit, defendant Delarm has (1) denied any ownership interest in the cow at issue; (2) denied that he ever exercised control over the cow at issue; and (3) denied that he owned the real propetiy upon which the cow at issue was pastured (A. 20-24). Defendant Sauve likewise denied the essential allegations of negligence (A. 25-29). Defendant Williams has proceeded in the action pro se, and although he did not serve a formal answer, he provided a statement in response to plaintiffs' complaint dated February 5, 2008 (A. 30). In his answer, Mr. Williams admitted to being the "sole proprietor" of the cow at issue !d. He fmiher stated in his answer that defendant Delarm and defendant Sauve had no interest in the cow !d. Plaintiffs' verified bill of particulars to defendant Delann dated July 8, 2008, reiterated plaintiffs' allegations of negligence contained within the complaint (R. 95-99) ("R" shall refer to Respondent's Joint Supplemental Appendix( 1 A supplemental appendix has been submitted jointly by respondent/defendant Sauve and respondent/defendant Delarm. 3 Following the completion of extensive discovery, defendant Delarm moved for summary judgment seeking dismissal of plaintiffs' complaint and all cross- claims (A. 31-41, 85-91 ). Defendant Delarm argued that he did not owe a duty to the plaintiffs because he did not own the cow at issue, did not exercise control over the cow at issue, nor did he own the property upon which the cow was pastured (A. 33-41). Defendant Delarm fmiher argued that plaintiffs' claims, sounding only in negligence, could not be a basis for liability, and that the cow did not have vicious propensities to defendant Del arm's knowledge (A. 31-41, 85-91 ). In a Decision and Order dated March I, 2011, Supreme Comi (Demarest, J.S.C.) granted the motions of defendant Delann and defendant Sauve and dismissed the complaint (A. 6-13). In doing so, the Comi relied upon the recently decided case ofVichot v. Day, 80 A.D.3d 851 (3d Dept. 2011 ), and applied a strict liability standard. The Comi found that there was no proof the cow at issue had ever escaped or interfered with traffic prior to the incident in question. The Court also found that defendant Delann neither owned nor exercised control over the cow struck by Mrs. Hastings (A. 12-13). In a unanimous decision, the Appellate Division, Third Depmiment, affirmed the Supreme Comi's decision and held that injuries inflicted by domestic animals may only proceed under a theory of strict liability, emphasizing plaintiffs failure to allege such a claim (94 A.D.3d 1171 [3d Dept. 2012]). The Couri held 4 that plaintiffs' claims sounding in negligence against defendant Delarm and defendant Sauve were properly dismissed. While defendant Williams had not originally moved for summary judgment or appealed, the Comi granted summary judgment to Williams on the same grounds. Notably, the Comi did so without reaching the issue of ownership of the cow. The Court went on to say that even if plaintiffs had alleged a cause of action based on strict liability such a claim would have also been dismissed because no claim had been made, nor evidence presented, that the cow at issue had a vicious or abnormal propensity that caused the accident. The Comi also expressed its opinion that in this limited circumstance, where a large animal is allegedly allowed to wander onto the roadway and cause an accident, a different rule should apply, namely, traditional rules of negligence (A. 2-5). The Appellate Division, Third Department, granted leave to appeal to the Court of Appeals (A. 1). This appeal ensued. 5 COUNTER-STATEMENT OF FACTS Plaintiff, Karen Hastings, alleges that on September 11, 2007 at 1:30 a.m., while driving a 14-passenger van on County Route 53 in North Bangor, New York, she struck a cow that was positioned in the center of the roadway and sustained injuries (A. 96, 101-102). The cow was killed on impact (A. 113). Defendant, Laurier Sauve, a retired dairy farmer, admittedly owned the property on both sides of the road near the accident (hereinafter referred to as "the property") (A. 40, 195-199,210-211, 218). A portion of Mr. Sauve's property consisted of a barn with an attached corral and a fenced pasture (A. 199, 205, 295- 298; R. I 0-12). The pasture was approximately 10 to 12 acres and fully enclosed by a page wire fence that ran along the road and a barbed wire fence that ran around the remaining perimeter (A. 167-169). The corral was approximately 7 to 10 feet high, constructed with planks and 2x6 boards and covered with heavy wire (A. 166-167, 206). There was no opening from which the cows in the corral could get into the pasture (A. 168, 243). At the time of the accident, Mr. Sauve did not own any cows that were kept on the property, having sold all of his cows when he retired several years prior (A. 210-211,213,219, 223). However, as set forth below, he permitted Mr. Williams to pasture cows in the fenced pasture, and also permitted Mr. Delarm to hold cows 6 in the corral attached to the barn in connection with Mr. Delarm's cattle business (A. 233, 243-246; R. 14). More specifically, Mr. Williams was permitted to pasture his cows on Mr. Sauve's property pursuant to a verbal agreement (R. 14). In or around May, 2007, Mr. Williams began to pasture his cows on Mr. Sauve's property for the cost of fixing and maintaining the fence around the pasture (A. 213,219-223, 225; R. 13- 16). Mr. Williams testified that, pursuant to this agreement, he repaired the fence by placing approximately 20 to 25 new posts and placing wire on the fence (A. 173-175). Mr. Williams performed this work alone (R. 18). Mr. Williams testified that he kept his cows in the pasture from May, 2007 through October, 2007, and that he visited the pasture a "couple, three times a week," to check on the animals and bring them grain (A. 172-173). A neighbor, George Dow, testified that he observed Mr. Williams feeding the cattle and walking the fence line at times (R. 60). The corral attached to the barn was utilized by Mr. Delarm to temporarily hold cattle. Mr. Delarm is a cattle dealer (A. 233, 240-241). More specifically, he is in the business of gathering cattle in order to ship them to a packing house for slaughter (A. 232-233). Mr. Delarm testified that every Tuesday he would pick up cattle, bring them to Mr. Sauve's farm and place them only in the corral until the cows are shipped out later that day (A. 236- 241, 243). This testimony was 7 suppmied by two non-party witnesses, both of whom are neighbors to the prope1iy, and who stated that cows were brought into the corrals on Tuesdays and shipped out that same day (R. 66, 86-87, 91). Mr. Delarm and Mr. Williams testified that there weren't any cows in the COITal on September 10, 2007 (R. 24-25, 48-49). The cows that Mr. Delarm placed in the COITal were tagged with either a white or brown cardboard tag (A. 241-242). The con·al is fi.llly enclosed and Mr. Delann had never had a problem with cows escaping from the conal (A. 243, 245; R. 48). With the exception of highly speculative statements from plaintiffs' son, there is no evidence that Mr. Delarm ever kept any cows in the pasture. In fact, Mr. Delann testified that he has never held any cows in the pasture area, nor did he ever perfonn any repairs or an inspection of the fence sun·ounding the pasture (A. 243-244). Similarly, Mr. Sauve testified that the only cows that were on his prope1iy on September 10,2007 were Mr. Williams' cows and that there were no cows in the con·al on the moming of September 11, 2007 (R. 3 8-41 ). Mrs. Hastings testified that she did not observe any cows in the conal on the date ofthe accident and did not have any infOimation that the cow she struck was owned by Mr. Delann or his business (A. 114; R. 5). 8 With respect to the accident, Mr. Williams testified that he received a telephone call from a neighbor, George Dow, at approximately 1:30 or 2:00a.m. on the morning of the accident advising him that his cow had "gotten out and had got hit with a car" (A. 160). Mr. Williams went to the scene of the accident (A. 161 ). At his deposition, Mr. Williams, in no unce1iain terms, testified that the cow that Mrs. Hastings hit and killed on September 11, 2007 was his cow. Specifically he testified: "it was my animal that got killed," and that he was the "sole owner" of the cow (A. 160, 162). On the other hand, Mr. Delarm testified, in no unce1iain terms, that the cow that was killed was not owned him, but was owned by Mr. Williams (R. 47). In addition to testifying that he owned the cow, Mr. Williams made a personal appearance at the oral argument for the motion term relating to the underlying motion and claimed ownership of the cow (A. 7). Mr. Williams testified that the cow was a black angus cow (A. 165). Mr. Williams purchased the cow, then a calf, in 2003 from a farm called Papa's Dairy (A. 166). He testified that he paid $25 cash for the cow, and did not receive a bill of sale (R. 7). Mr. Williams testified that as of the date of the accident, he owned 12 or 13 cows (!d.). He kept 9 of his cows in Mr. Sauve's pasture and the 9 cows were in the pasture on the night of September I 0, 2007 through the morning of September II, 2007 (A. 171; R. 4). Mr. Williams testified that his cows were the only cows pastured in Mr. Sauve's pasture in September, 2007 (A. 171, R. 9-1 0). 9 All of Mr. William's cows had orange ear tags, and according to Mr. Williams, the cow that Mrs. Hastings struck had an orange ear tag (R. 23-24). The police accident report relating to plaintiffs accident identified Mr. Williams as the owner of the cow in question (R. 93-94). In the latter part of the morning on September II, 2007, Mr. Williams went to both Mr. Sauve's and Mr. Delarm's homes and asked if they would help him dispose ofthe cow (R. 36, 46). Mr. Sauve and Mr. Delan11 agreed, and the three men, using Mr. Sauve's tractor and Mr. Delarm's truck, removed the cow from a ditch on the side of the roadway (R. 36-37, 46). While the men were removing the cow, Bruce Hastings and his son, Jason Hastings, drove by the scene of the accident and observed Mr. Sauve on his tractor placing the dead cow into Mr. Delarm's truck, while Mr. Williams watched (A. 132- 136). Bruce Hastings and Jason Hastings testified that when they pulled up beside the men Mr. Delarm said "somebody hit one of my cows last night" (A. 135, 271, 282). Mr. Del arm testified that Bruce and Jason Hastings drove by while they were loading the cow and he stated "somebody hit this cow" (R. 47). Mr. Delarm testified that he did not refer to the cow as "his cow" because the cow was owned by Mr. Williams (I d.). 10 While at the scene, Mr. Hastings and his son took 3 photographs of the cow (R. 80). In conflicting testimony, Jason Hastings testified that he is not aware of the film being developed and he thought that the camera was still at his house, while Karen Hastings testified that they developed the film but it "did not turn out" (A. 293; R. 4, 80). Following the accident in question, Mr. Williams and Mr. Sauve inspected the fence around the pasture and discovered an area of the fence where the barbed wire was broken (R. 22-23, 27-28, 41-44). They observed hoof prints in this same area (!d.). Mr. Williams and Mr. Sauve concluded that the cow that was struck on the night of the accident had escaped from the pasture near the area of the hoof prints and broken fence (!d.). There has been no evidence that the cow at issue came from the corral. Instead, Mrs. Hastings repeatedly testified that she felt that the fence around the pasture was in disrepair and was insufficient to keep cows in the pasture (A. 118). More specifically, plaintiff testified that the pasture fence was not taut and posts were not driven into the ground. Plaintiff was also critical of the fact that the fence was made of page wire, a material she felt to be inferior to other fencing options. She further testified that she thought the cows could crawl over the fencing (A. 117-118, 121-122). 11 Bruce Hastings, Jason Hastings and Karen Hastings all testified that they observed the cow on the night of the accident. Bruce Hastings testified that the cow was a mixed Holstein that was "almost all black with a little white on its belly and its feet (A. 134). Jason Hastings testified that the cow was a large Holstein "ninety percent black, a little white on its belly and feet" (A. 263). Karen Hastings testified that the cow was black with white on the ends of its feet (A. 109-11 0). Several parties testified that they observed cows on the side of County Route 53 near the Sauve farm during the summer of2007 (A. 105-106, 124, 138-139; R. 19-20, 68-69, 74-78, 83-84, 87). However, not a single party testified that they advised defendant Delarm, nor anyone for that matter, that a cow had escaped from the pasture (A. 107, 139,245-246, R. 20-21,41,70-71, 90). Mr. Delarm testified that he was not aware of anyone making any complaints concerning cows escaping the pasture (A. 246). 12 ARGUMENT POINT I PLAINTIFFS' CLAIMS ARE LIMITED TO STRICT LIABILITY BECAUSE PLAINTIFFS ALLEGE INJURIES FOR HARM ALLEGEDLY CAUSED BY A DOMESTIC ANIMAL The issue before the Comi is well settled. This Court has repeatedly acknowledged that when harm is caused by a domestic animal, its owner's liability is determined solely by application of a strict liability standard. In doing so, this Court also repeatedly acknowledged that a negligence cause of action will not lie. See Smith v. Reilly, 17 N.Y.3d 895 (2011); Petrone v. Fernandez, 12 N.Y.3d 546 (2009); Bernstein v. Pemw Whistle Toys, Inc., 10 N.Y.3d 787 (2008); Bard v. Jahnke, 6 N.Y.3d 592 (2006); Collier v. Zambito, 1 N.Y.3d 444 (2004). In fact, this Court has clearly stated that it is unwilling to "dilute" the traditional rule of strict liability by creating exceptions to this standard that would allow common- law causes of action for negligence when an animal causes harm. Bard, 6 N.Y.3d at 599. In Petrone, strikingly similar arguments were made by the plaintiff as are advanced in this case. Petrone, 12 N.Y.3d at 546. Specifically, in Petrone, as in the present case, the plaintiff argued that a negligence standard should apply in a case involving a dog that was unrestrained and chased a mail carrier. The plaintiff in Petrone pointed to the fact that the dog was in an unfenced yard. The plaintiff 13 also alleged a violation of a local leash law (i.e. that the dog was improperly restrained). This Comt rejected plaintiffs attempts to fashion a negligence cause of action based upon the manner in which the dog was kept and the owner's violation of a local lease law. Petrone, 12 N.Y.3d at 550-51. More importantly, in doing so, this Comt left little doubt that "negligence is no longer a basis for imposing liability after Collier and Bard." Petrone, 12 N.Y.3d at 550. Despite the foregoing case law, plaintiffs/appellants argue that this Court has not addressed the issue of whether a strict liability standard applies to cases involving animals in the roadway, and specifically cows in the roadway. In doing so, plaintiffs/appellants argue that the Comt has only considered cases involving "actual" vicious propensities of an animal since the Comt mticulated the strict liability rule in Bard, Petrone and Collier. It is submitted that the Comt of Appeals has considered the natural propensity of animals to act in certain ways, and more particularly an animal's natural tendency to roam free, and has declined to apply a negligence standard. See Smith v. Reilly, 17 N.Y.3d at 895. The recently decided Smith case involved a dog that ran into the highway and collided with a bicyclist. In other words, the case involved an animal's natural propensity to roam free. In a unanimous decision, this Comt reversed the lower comt, applied a strict liability standard, and held that the owner had no knowledge of her dog's alleged propensity to interfere with traffic (i.e. put others at risk of 14 harm). Similarly, in the present case, plaintiff alleges that she sustained injuries when her vehicle collided with a cow that had entered the roadway. Plaintiff alleges that the cow at issue had a natural propensity to do so and therefore an owner that permits their animal to roam should be held liable when the animal causes harm. However, the foregoing case leaves little doubt that this Court intended the strict liability/vicious propensity rule to apply to cases wherein a domestic animal interferes with traffic. In addition to asking this Court to draw a distinction between cases in which animals cause harm resulting from vicious propensities versus natural tendencies, plaintiffs/appellants (and the Third Department, Appellate Division) also suggest that this Court should consider drawing a distinction between larger animals such as cows/horses versus smaller animals such as dogs. Present case law is clear that a strict liability standard applies to all domestic animals, including large animals, such as cows, and that an enhanced duty will not lie because of an animal's size. Confronted with a similar argument, this Comi considered applying a heightened standard to cattle (and specifically a bull) and declined to create such a distinction. See Bard, 6 N.Y.3d at 599. In Bard, a case involving a hornless dairy bull that was permitted to roam free in a pastured area, the plaintiff argued that he should be permitted to recover under a negligence theory because the bull was abnormally dangerous and the owner was negligent in permitting the bull to roam free. This 15 Court explicitly considered and rejected the standard expressed in Restatement (Second) of Totis Sections 518 (g) and (h) that provides an owner of a domestic animal may be liable if he negligently prevents harm that arises out of an animal's normal characteristics. Undoubtedly recognizing the potential difficulties with creating such a distinction, this Court declined to hold that a patiicular kind of domestic animal is dangerous or poses a greater risk of harm that would warrant a different standard of care. Moreover, it is respectfully submitted that making a distinction between a dog or a horse or a cow is not appropriate in cases involving animals in a roadway. As evidenced by leash laws that are prevalent throughout the state, dogs can be considered to have a natural propensity to wander and roam, including wandering and roaming into a roadway. It is submitted that liability for an animal in the roadway should not be dependent upon the size or mass of an animal (i.e. a dog vs. a cow/horse), as a dog in the roadway arguably poses no less risk than a cow or horse in the roadway. For example, a dog is quicker and more difficult to see or avoid, and a dog has the potential of causing significant harm as evidenced by the Smith case, 17 N.Y.3d 895, and others. 2 Additionally, it is submitted that cows exhibit no more of a tendency to interfere with traffic than dogs can exhibit. As such, the holding in Petrone, 12 N.Y.3d 546, wherein this Couti rejected a 2 See Roberts v. Joller, 39 A.D.3d 1224 (2007) and Alia v. Fiorina, 39 A.D.3d I 068 (3"1 Dept. 2007), which involve dogs in the roadway injuring bicyclists. 16 negligence claim, should apply to the instant case. If this Court were to allow negligence claims to exist in some circumstances based upon the class of an animal, the effect would be the erosion of the strict liability standard in favor of a rule with no predictability. Plaintiff also contends that the law should be changed from a public policy perspective and presents a hypothetical wherein cows are placed in an unfenced pasture. These, however, are not the facts presented by this case and as such, does not warrant the Court's consideration. Notwithstanding the foregoing, in the event the Comi considers this argument, it is submitted that if cows have such a propensity to wonder as plaintiff suggests, the farmer that places cows in an unfenced pasture near the side of the road would be placed on notice of the cows' propensity to enter the roadway virtually immediately, and thus plaintiff could establish a case sounding in strict liability. Similarly, if an owner brings a "pack of dogs" to a park that he/she !mows are unruly, wild, or that have a propensity to harm people, the owner would be liable under a theory of strict liability. However, if that same owner brought a pack of dogs that were tame and friendly to a school yard, liability should not attach if the owner was not on notice of the dogs' propensity to harm people. In both hypothetical situations it would not be impossible or difficult for a plaintiff to establish a strict liability claim. 17 For the foregoing reasons, there is no reason to disturb well established case law in this area of law. As a result, it is respectfully submitted that plaintiffs' complaint sounding solely in negligence against defendant Delarm was properly dismissed. POINT II PLAINTIFFS' COMPLAINT WAS PROPERLY DISMISSED BECAUSE THERE IS NO EVIDENCE THE COW AT ISSUE HAD A PROPENSITY TO INTERFERE WITH TRAFFIC OR EVIDENCE THAT DEFENDANT DELARM HAD KNOWLEDGE OF THE COW'S PROPENSITY TO ESCAPE FROM THE PASTURE AND INTERFERE WITH TRAFFIC. This Comi has held that "an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nonetheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities- albeit only when such proclivity results in the injury giving rise to the lawsuit" Collier v. Zambito, 1 N.Y.3d at 447. New York comis have consistently held that a plaintiff cannot recover for injuries resulting from the presence of an animal in the highway absent evidence that the defendant was aware of the animal's habit of interfering with traffic. See Smith v. Reilly, 17 N.Y.3d 895. See Also Vichot, 80 A.D. 3d 85; Alia v Fiorina, 39 A.D.3d 1 068; Staller v. Westfall, 225 A.D.2d 885 (3'd Dept. 1996). In the present case, plaintiffs contend that defendant Delarm, because he is a cattle dealer, is "charged with the common lmowledge that cows have a propensity 18 to wander." First and foremost, plaintiffs have failed to submit admissible evidence that a cow has a propensity to wander more than other animals such as dogs or horses. Additionally, it is well established law that the breed of an animal (or in this case the type of animal) is insufficient to raise a triable issue of fact regarding the animal's alleged vicious propensities. In other words, plaintiffs cmmot meet this burden simply by pointing to the fact that the animal at issue was a cow. In fact, this Co uti, as well as others, have held that neither the animal's age, size, breed or type provide notice to the owner that the animal was vicious or had a propensity to interfere with traffic. See Bard, 6 N.Y.3d 592, 596-8. See Also, Staller, 225 A.D.2d 885. Plaintiffs fmiher contend that defendant Delarm !mew or should have known that the cow at issue had a propensity (or was likely) to interfere with traffic based upon the alleged defective nature of the fence. However, plaintiffs fail to cite any case law or authority to support this position. In Staller, 225 A.D.2d at 885, the Third Depmiment, Appellate Division, considered a similar argument and rejected the same. Specifically, in Staller, the Comi held that the fact that an animal was not chained or otherwise prevented from entering the roadway did not provide notice to the owner that the animal was vicious or was likely to interfere with traffic. !d. Plaintiffs' attempts to establish the cow's vicious propensities based upon the state of the fence are clearly insufficient to create a question of fact. 19 Additionally, in the present case, there is no evidence that the cow at issue ever escaped from the pasture and interfered with traffic, and certainly no evidence that the cow had a habit of doing so. See, e.g., Smith, 17 N.Y.3d 895 (holding proof that a dog had escaped the defendant's control on three to five occasions and ran towards road was insufficient to establish vicious propensities); Alia, 39 A.D.3d at l 069 (holding that proof that a dog roamed the neighborhood or occasionally ran into the road was insufficient to establish the animal had a habit of interfering with traffic); Roberts v. Joller, 39 A.D.3d at 1225 (holding evidence that a dog had escaped from the backyard once or twice prior to the accident is insufficient to raise an issue of fact). Although plaintiffs contend that cows had escaped from the pasture prior to Mrs. Hasting's accident, the record is devoid of any evidence that the particular cow at issue had ever interfered with traffic before the date in question. 3 None of the patties that testified that they had observed a cow loose before the date of the accident ever claimed that the cow(s) that he or she previously observed outside of the pasture was the particular cow that had escaped on the date of the accident (A. 106-107, 138-139, R. 19-20, 68-69, 82-89). This is patiicularly significant because Bruce Hastings and Jason Hastings testified that prior to the accident they had 3 It is notable that the witnesses that stated they observed cows outside of the pasture before the date of the accident did not testify that the cow(s) were interfering with traffic. Most witnesses noted that the cows were on the side of the road near the pasture fence (A. 106-107, 138-139, R. 19-20, 68-69, 82-89). 20 stopped at Mr. Sauve's farm and put cows back in the pasture that had escaped and had also observed the dead cow on the date of the accident (A. 134, 138-139,262- 263, R. 68-69, 80). In fact, both Bruce Hastings and Jason Hastings gave detailed descriptions of the dead cow they observed after the accident (A. 134, 262, R. 80).4 The foregoing instances would have cetiainly given both men ample oppmiunity to observe the dead cow and determine if it was a cow that they had observed loose before. Despite the foregoing, plaintiffs have not produced any evidence, or even made a claim, that the cow at issue had ever escaped from the pasture in the past, or more impmiantly, had a habit of interfering with traffic. Moreover, the record is devoid of any evidence that defendant Del ann ever had notice of any cows escaping from the pasture.5 On the contrary, Mr. Delarm testified that he was not aware of anyone making complaints concerning cows escaping from the pasture (A. 246). Because there is no evidence, nor is there a claim that: ( 1) the cow at issue had ever escaped from the pasture before or had a propensity to interfere with traffic; or (2) that defendant Delarm was aware of any propensity of the cow at issue to interfere with traffic, the Appellate Comi properly affirmed the lower Couti's order dismissing plaintiffs' complaint. 4 Bruce Hastings testified that the cow was a mixed Holstein that was "almost all black with a little white on its belly and its feet (A. 134). Jason Hastings testified that the cow was a large Holstein "ninety percent black, a little white on its belly and feet" (A. 263). 5 In fact, plaintiff has not made a claim that defendant Del arm was aware of this cow, or any cows, escaping from the pasture prior to the date of the accident. 21 POINT III A. THE ISSUE OF OWNERSHIP IS NOT RIPE FOR THE COURT'S CONSIDERATION First and foremost, it is submitted that this Court should not consider question number four' submitted by the plaintiffs, relating to Mr. Delarm's ownership of the cow at issue because, although raised at the appellate level, the Third Depatiment, Appellate Division, did not reach the merits of said issue (A. 4). In fact, Plaintiffs aclmowledge that the Third Department did not reach this issue (Plaintiff/Appellant Briefp. 4). It is further submitted that if this Court reverses the Third Department's Order, this issue must be remanded for full consideration by the Third Depariment. In the event that this Comi reaches this issue, defendant Delarm submits the following. B. THE EVIDENCE SOUNDLY ESTABLISHED THAT DEFENDANT DELARM DID NOT OWN THE COW AT ISSUE AND THUS, OWNED NO DUTY OF CARE TO THE PLAINTIFF. New York's comis have repeatedly recognized that "[t]he threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?" See, e.g., Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001); Filbe1io v. Heck's Tavern, Inc., 37 A.D.3d 1007, 1008 (3rd Dept. 2007) (emphasizing the court must first determine whether duty existed before making 6 "Whether triable issues of fact exist as to defendant Delarm's ownership of the cow at issue." 22 any detennination regarding whether a duty has been breached). Here, defendant William Del arm did not owe a duty to the plaintiffs as he neither owned the cow that caused injury to the plaintiffs or the land upon which the cow was pastured, nor did he exercise control over the animal. In New York, there can be no recovery against a defendant who neither owned nor exercised dominion and control over an animal that causes injury. See Arslanoglou v. De fayette, 105 A.D.2d 973 (3'ct Dept. 1984); See Also Nidzyn v. Stevens, 148 A.D.2d 592 (2"ct Dept. 1989); Rodriguez v. Messenger, 108 A.D.2d 1085 (3'ct Dept. 1985). It is submitted that in the present case, defendant Delarm submitted sufficient evidence that the cow at issue was neither owned by him nor was it under his control at any time. It is undisputed that co-defendant Albert Williams has admitted to being the sole owner of the cow from the time of the accident and continuing through today, including at the Special Tenn relating to the underlying motion (A. 7, 30, 162-166, R. 7). Mr. Williams testified that he had purchased the cow, when it was a calf in 2003, and that he continued to raise it until it was struck and killed (A. 166, R. 7-8). Furthermore, Mr. Williams testified that he was permitted to pasture his cows on defendant Sauve's land adjacent to the roadway in which Mrs. Hastings had her accident (R 14). He testified that he observed the cow both at the time of the accident and later in the day, and observed a cow with an orange ear tag such 23 as the type of ear tags that he tagged his cows with around the date of the accident (R.23-24).7 Mr. Williams, Mr. Sauve and Mr. Delarm testified that Mr. Williams' cows were the only cows in the pasture at the time of the accident, and there is no admissible evidence to the contrary (A. 171, R. 7-10,38-41, 48-49). Finally, Mr. Williams and Mr. Sauve both testified that they inspected the fence and found an area that was broken, as well as hoof prints leading out from the pasture (R. 22-23, 27-28, 41-44). Based on the foregoing, it is submitted that defendant Delann undoubtedly established that he never owned nor controlled the cow at issue, nor did he own the land upon which it was pastured. Moreover, although defendant Del arm contends that he did not have cows on Mr. Sauve's property at the time of the accident, even assuming arguendo that his cows were present in the corral at the time of the accident, there is absolutely no proof that the cow that was struck came from the corral. Instead, as set forth above, there is overwhelming evidence that the cow that was killed came from the pasture area. If fact, plaintiff essentially concedes this point in the instant appeal. In opposition to defendant Delarm's motion and in the instant appeal, plaintiffs have ignored the fact that Albert Williams has consistently claimed that he owned the cow at issue (A. 160, 162). Instead, plaintiff suggests that because William Delarm has an eighth grade education, and because he has a business 7 Mr. Delann testified that he tagged his cows with a white or cardboard tag (A. 241-242). 24 relationship with William Delann, his claim of ownership should be wholly disregarded. While notably all of the defendants had no more than eighth grade educations (A, 231, R. 32), their education level or level of sophistication does not change the fact that Mr. Williams testified, without question, that it was his animal that was killed (A. 160, 162). Additionally, Mr. Williams testified that the cows that he pastured on defendant Sauve's farm all had orange ear tags, and that the cow that was killed had an orange ear tag, which is further evidence that the cow that was killed was owned by Mr. Williams (R. 23-24). This latter fact is another piece of evidence that the plaintiffs do not address. In a further attempt to establish that Mr. Delarm owned the cow at issue, plaintiffs also suggest that because Mr. Delann helped dispose of the cow at issue this in some way establishes ownership. However, notably Mr. Sauve and Mr. Williams were also present during the removal of the cow because Mr. Williams had asked Mr. Sauve and Mr. Delarm to help him dispose of the cow, and therefore nothing can be gleaned from this fact (R. 36-37, 46). Plaintiff also ignores the fact that Mr. Williams, Mr. Sauve and Mr. Del arm all consistently testified that Mr. Williams was the only individual that pastured his cows in Mr. Sauve's pasture at and around the time of the subject accident, and there is no evidence otherwise, other than pure speculation on the part of Jason Hastings (A. 171, 223, 236-241, 243, R. 9). More specifically, plaintiffs produced 25 the testimony of plaintiffs' son that he had personally observed William Delarm: (1) feeding cows; (2) laying down hay in the pasture; and (3) dropping cows off into the pasture on one or two occasions, as evidence that the cow at issue was owned by William Delarm. While Mr. Delarm denies ever pasturing any cows in the pasture in question, assuming arguendo that plaintiffs' son did observe Mr. Delarm doing the aforementioned things, this testimony in no way establishes, nor does it indicate, that the cow that Mrs. Hastings struck was a cow owned or controlled by William Delarm such that Mr. Delarm would owe a duty to the plaintiffs. Moreover, plaintiffs' son did not testify that he recalled seeing Mr. Delarm ever feeding the particular cow at issue, despite the fact that plaintiffs' son claims to have observed the cows that Mr. Delarm fed as well as the cow that was struck by Mrs. Hastings. In fact, Jason Hastings testified that he also frequently saw Mr. Williams in the pasture (A. 286). Based on the foregoing, Jason Hasting's testimony that Mr. Delann owned the cow at issue is based upon pure speculation, is unsupp01ied by the evidence, and does not create a triable issue of fact. Additionally, plaintiffs contend that the submission of testimony by Bruce Hastings, a patiy to the action, and plaintiffs' son, which alleges that William Del arm admitted to owning the cow at issue alone creates a triable issue of fact regarding ownership of the cow. In supp01i of their position, plaintiffs cite to 26 Doumbia v. City of New York, 78 A.D.3d 587 (1st Dept. 201 0). In Doumbia, the Court held that the alleged admission of a defendant used by plaintiff in opposition to defendant's motion for summary judgment "merely provided additional to suppmt for finding an issue of fact," where the plaintiff had produced other sufficient evidence to raise an issue of fact on the same issue. It is respectfully submitted that a hearsay statement such as the one proffered by plaintiffs, standing alone, is insufficient to raise a triable issue of fact. See, Becovic v. Poisson & Hacket, 49 A.D.3d 435 (4th Dept. 2008); Raux v. City of Utica, 59 A.D.3d 984 (4th Dept. 2009). Finally, evidence, other than pure speculative evidence, that could prove who owned the cow is in the exclusive possession ofthe plaintiffs, yet plaintiffs have failed to preserve and/or produce it. More specifically, both Mr. Hastings and his son testified that they went to the scene of the accident and took 3 photographs of the cow (R. 80). This is significant because Mr. Delarm testified that his cows were tagged with either white or brown tags (A. 241-242), and Mr. Williams testified that his cows were tagged with orange ear tags (R. 23-24). Therefore, a photograph of the cow could have been utilized to identifY the owner of the cow. However, in conflicting testimony, Jason Hastings testified that he is not aware of the film being developed and he thought that the camera was still at his house, (A. 292-293, R. 80), while Karen Hastings testified that they developed the film but it 27 "did not turn out" (R. 4). Despite plaintiffs' ability to come forward with concrete evidence, plaintiffs' only proof in this case is based upon pure speculation and hearsay. Based on the foregoing, the plaintiffs are unable to raise an issue of fact regarding the ownership of the cow and therefore, plaintiffs are unable to show that they were owed a specific duty by Mr. Delarm. See Hamilton, 96 N.Y.2d at 232. Without such a showing, plaintiffs' complaint was properly dismissed as a matter of law, for "without a duty running directly to the injured person there can be no liability in damages .... " I d. 28 CONCLUSION For the reasons stated above, the Appellate Division, Third Depaiiment, was correct in upholding the lower Court's Decision granting defendant Delann's summary judgment motion. The Third Depmiment's Memorandum and Order, dated April 5, 2012, should be affirmed. Dated: November 29, 2012 O'CONNOR, O'CONNOR, BRESEE & FIRST, P.C. By: ~~fLEN~~y Attorneys for Defendant-Respondent William De/arm 20 Corporate Woods Boulevard Albany, New York 12211 Phone: (518) 465-0400 29