Karen Hastings et al., Appellants,v.Laurier Sauve et al., Respondents, et al., Defendant.BriefN.Y.March 21, 2013To Be Argued by: MATTHEW H. MCARDLE, ESQ. Malone, New York (Time Requested: 15 Minutes) Pau pork tate Court of Rppeat KAREN HASTINGS and BRUCE HASTINGS, Plaintiffs-Appellants, - against - LAURIER SAUVE, ALBERT WILLIAMS and WILLIAM DELARM, Defendants-Respondents. REPLY BRIEF OF PLAINTIFFS-APPELLANTS FISCHER, BESSETTE, MULDOWNEY & HUNTER, LLP Attorneys for Plaintiffs-Appellants Karen Hastings and Bruce Hastings P.O. Box 420 - 43 Golf Course Road Malone, New York 12953-0420 Telephone: (518) 481-5000 Facsimile: (518)481-5203 December 13, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES ii POINT ONE: A NEGLIGENCE CLAIM IS VIABLE IN THIS MATTER 1 POINT TWO: ISSUES OF FACT EXIST ON THE STRICT LIABILITY ISSUE 4 POINT THREE: SAUVE HAS NOT ESTABLISHED THAT HE IS ENTITLED TO THE BENEFIT OF THE STRICT LIABLITY STANDARD 6 POINT FOUR: TRIABLE ISSUES OF FACT EXIST WITH AS TO DELARM'S OWNERSHIP OF THE COW 8 CONCLUSION 8 TABLE OF AUTHORITIES Allis v, Turner 259 AD2d 995 (1999) 3 Bard v. Jahnke 6 NY3d 592 (2006) 1, 2 Bernstein v. Penny Whistle Toys, Inc. 10 NY3d 787 (2008) 1,2,6,7 Collier v. Zambito 1 NY3d 444 (2004) 1, 2 Loeffler v. Roberts 136 AD2d 824 (3d Dept. 1998) Petrone v. Fernandez 12 NY3d 546 (2009) 1, 2, 6 Smith v. Reilley 17 NY3d 895 (2001) 1, 2 Unger v. The Forty-Second Street and Grant Street Ferry Railroad Company 51 NY497 (1873) 3,5 Vichot v. Day 880 AD3d 851 (3d Dept. 2011) 3 Young v. Wyman, 159 AD2d 792 (3d Dept. 1990) aff d 76 NY2d 1009 (1990) 3, 5 Plaintiffs-Appellants Karen Hastings and Bruce Hastings submit this Reply Brief in further support of their Appeal, and in response to the points and authorities set forth in the Briefs of Defendants-Respondents Laurier Sauve and William DeLarm. POINT ONE: A NEGLIGENCE CLAIM IS VIABLE IN THIS MATTER As expected, the Briefs submitted by defendants both argue that this Court has conclusively determined that a negligence claim does not lie in any accident involving a domestic animal, and that the rule extends to all accidents involving domestic animals in a roadway (including cows in a roadway). The defendants' Briefs, however, continue to ignore the fact that the Court of Appeals' cases upon which they rely (Smith, Petrone, Bernstein, Bard, and Collier) all involved an animal's propensity to act "viciously" and aggressively. Despite defendants' arguments to the contrary, these cases simply did not deal with an animal's natural propensity to act in a certain way. Collier, Bard, and their progeny all dealt with either a dog or a bull chasing, attacking, or threatening a plaintiff. Such facts are obviously much different, and legally distinguishable, from a cow roaming into a roadway due to inadequate fencing. Indeed, in Smith v. Reilly (17 NY3d 895 [2011]), a case relied upon heavily by defendants, a dog chased a bicyclist and knocked him off his bicycle causing an injury. Contrary to defendants' arguments, it cannot legitimately be claimed that Smith concerned an animal's "natural tendency to roam free". Defendant-Respondent Sauve's Brief, at p. 15; Defendant-Respondent Delarm's Brief, at p. 14. The dog at issue chased down the plaintiff; the dog was not roaming aimlessly in the roadway like the cow at issue in this case. Similarly, it is an improper characterization for defendants to claim that the dog in Petrone v. Fernandez (I2 NY3d 546 [20091), was "exercising a natural propensity to wander". 1 Defendant-Respondent Sauve's Brief, at p. 15; Defendant-Respondent Delarm's Brief, at p. 13. The dog at issue in Petrone (a Rottweiler) ran after the plaintiff (a mail carrier), causing her to jump into her car out of fear. Such actions by the dog were clearly threatening to the plaintiff, and not at all analogous to a cow roaming in a roadway in the middle of the night. There can be little question that, contrary to defendants' contentions, Smith and Petrone, like Collier v. Zambito (1 NY3d 444 [2004]) (dog bite), Bard v. Jahnke (6 NY3d 592 [2006]) (bull attack), and Bernstein v. Penny Whistle Toys, Inc., (10 NY3d 787 [2008]) (dog bite) all concerned an animal's proclivity to act aggressively. The case presently before this Court, however, does not involve an animal acting in a "vicious" or threatening manner. It involves a cow wandering into a roadway. It involves a cow doing exactly what a cow is known and expected to do - - wander. The defendants argue that plaintiffs seek to draw a distinction between big animals and small animals, and that no such distinction can be made because dogs have a "propensity to wander and roam" just like cows, and "cows exhibit no more of a tendency to interfere with traffic than dogs can exhibit". Defendant-Respondent Delarm's Brief, at p. 16; Defendant-Respondent Sauve's Brief, at p. 18. This argument presents an unrealistic view of both the case law and common sense. As discussed above, the cases from this Court upon which defendants rely do not deal with accidents caused by dogs roaming or wandering in a roadway. They deal with dogs and other animals chasing, threatening and/or attacking the plaintiff. The cow at issue in this case did not attack, chase, or otherwise act in a threatening manner toward the plaintiff — the cow roamed into the roadway due to an obviously inadequate fence, and was standing in the middle of the roadway when struck by the plaintiff. 2 The reality is that none of the decisions issued by this Court following Unger v. The Forty-Second Street and Grant Street Ferry Railroad Company (51 NY 497 [1873]) and Young v. Wyman (159 AD2d 792 [3d Dept. 1990], did 76 NY2d 1009 [1990]) have addressed an animal's natural propensity to act in a certain way (such as a cow's propensity to wander). The case law following Unger and Wyman have involved animal bites and threats, and have not overruled the centuries-old case law that a negligence claim will lie in a cow in the road accident, and that cows do not generally wander onto public roads in the absence of negligence. See Unger, 51 NY at 500; Young, 159 AD2d at 793; see also Allis v. Turner, 259 AD2d 995 (4 th Dept. 1999); Loeffler v. Roberts, 136 AD2d 824 (3d Dept. 1988). The absence of any case from this Court precluding a negligence claim in a cow in the road accident is firmly established by the fact that neither defendant Sauve nor defendant Delarm argued this vicious propensity issue in their opening motion papers before the Supreme Court. It was not until the Third Department's Decision in Vichot v. Day {80 AD3d 851 [3d Dept. 2011]), that the defendants wrote a letter to the Supreme Court Justice (Demarest, JSC) advancing the strict liability argument for the first time. It is also important to note the response defendants have made with regard to the hypothetical farmer that places his herd of cattle in an unfenced pasture. Both defendants have indicated in their Briefs that, under such facts, and in the absence of any fence to restrain the cattle, the hypothetical farmer would be automatically on notice "of the cows propensity to enter the roadway virtually immediately". Defendant-Respondent Delarm's Brief, at p. 17; Defendant-Respondent Sauve's Brief, at p. 18. If such is the rule employed by this Court, and if it this Court holds that an inadequate restraint places a farmer "immediately" on notice, this Court should search the Record and grant 3 summary . judgment to the plaintiffs. The fence at issue in this case was obviously inadequate and insufficient. The defendants have never disputed this fact, or disputed that the page wire fence that surrounded the pasture was lopsided and sagging, that the posts of the fence were lopsided and sagging, that brush was growing up over the fence, or that a cow could simply step over the fence and enter the roadway. A-118, 295-303. The fence in this case is, at a minimum, analogous (and, at a maximum, identical) to a farmer surrounding his pasture of cattle with no fence at all. If, as defendants suggest, a farmer with no fence surrounding his cattle is "immediately" on notice of a cow's propensity to enter a roadway, there can be no dispute that such "immediate" notice can be charged to the defendants in this case given the obviously inadequate nature of the fence. In the end, it is submitted that this Court's centuries-old rule that a negligence claim will lie in cow in the road cases, and that cows do not generally wander onto public roads in the absence of negligence, is still the law of this State. Given the public policy and practical considerations discussed in plaintiff's Opening Brief, and in this Reply Brief, maintaining this rule of law is necessary. To force a plaintiff to proceed only under a theory of strict liability in a case where one single black cow, from a field full of black cows, has wandered into a roadway causing an accident, would create a standard that is impossible to meet. POINT TWO: ISSUES OF FACT EXIST ON THE STRICT LIABILTY ISSUE Even if it is found that the plaintiffs may proceed only under a strict liability theory, issues of fact nevertheless exist as to whether defendants knew, or should have known, that the cow Karen Hastings struck would enter the roadway (i.e. that the cow at issue had a "propensity" to enter the roadway). On this point, both defendants generally argue that no issue of fact exists because there is no evidence that the specific cow at issue had ever previously escaped the pasture, and that 4 defendants lacked actual or constructive knowledge of the propensity of the specific cow at issue to enter the roadway. The defendants, in essence, contend that general knowledge that cows wander and roam is insufficient to impart knowledge that the specific cow at issue would wander and roam. Contrary to defendants' arguments, however, this Court has held that a defendant can be charged with common knowledge that all cows (which, of course, would include the specific cow at issue in this case) have a propensity to wander. This Court has affirmed that there is a "common-law premise that certain domestic animals, by their nature, require constant attention or restraint. 'Certain kinds of animals involve an obvious danger . . . ; everyone knows the propensity of cattle and horses to escape and roam and do mischief' These animals are not, therefore, ordinarily left to roam unkept". Young, 159 AD2d at 793 (emphasis added; citation omitted). The obviously inadequate condition of the fence at issue, and the common knowledge that all cows have a propensity to wander (see e.g. Unger, 51 NY at 500; Young, 159 AD2d at 793; Loeffler, 136 AD2d at 824), creates, at a minimum, an issue of fact as to whether the defendants knew, or should have known, of the adequacy of the fence and the ability of the fence to restrain the cow at issue from the roadway. Further, with particular regard to defendant Sauve, the Record is undisputed that he had actual knowledge of the proclivity of cows (and, thus, this cow) to escape the dilapidated fence. Sauve has admitted that cows have escaped his pasture and entered County Route 53 on prior occasions. A - 104-105, 125, 138-139, 211, 213. Bruce Hastings further testified that he personally witnessed Sauve put cows from the roadway back into the pasture at issue. A - 140. Sauve himself has even admitted that cows have escaped the pasture and fence at issue on at least 5 one occasion prior to this accident, and possibly more. A - 211, 213. Given the common knowledge that cows have a propensity to roam, Sauve's knowledge that cows had escaped the pasture and fence creates an issue of fact as to his knowledge that the specific cow at issue would escape the fence. The foregoing evidence creates issues of fact as to both Sauve's and Delarm's actual and constructive notice of the propensity of cows (including the cow at issue in this case) to wander, roam free, and to escape the confines of the inadequate and defective fence. Such issues of fact must be resolved by a jury at trial, and preclude summary judgment to defendants on the strict liability/vicious propensity issue. POINT THREE: SAUVE HAS NOT ESTABLISHED THAT HE IS ENTITLED TO THE BENEFIT OF THE STRICT LIABILTY STANDARD In his Brief, defendant Sauve relies upon Petrone and Bernstein to support his contention that the strict liability rule must apply to his benefit. These cases are inapposite. In Petrone, the plaintiff did not assert a premises liability claim against the property owner. The plaintiff merely alleged a leash law violation. Thus, this Court only needed to address the fact that the dog at issue was not leashed. Given the clear law that a plaintiff, to succeed in a dog bite/attack case, must establish a "vicious propensity", the presence or absence of a leash was immaterial. 12 NY3d at 550. The facts of this case, of course, are much different than those of Petrone. Here, plaintiffs' claims against defendant Sauve sound in premises liability for his negligent maintenance of his fence. Such a claim is not at all analogous to the leash law claim at issue in Petrone. Similarly, in Bernstein, the plaintiff sued a defendant who was both the dog owner and the property owner. Under such facts, a majority of the First Department concluded that permitting 6 two different legal theories to proceed against the same defendant would circumvent this Court's strict liability rule with regard to dog bite cases. 10 NY3d at 788. The facts of this case are far different from those of Bernstein. First, this case does not involve a dog bite or attack. It involves a cow roaming free and wandering into a roadway. Moreover, defendant Sauve, against whom the premises liability claim is made, is not also the animal owner. As such, and unlike Bernstein, there would be no inconsistency in applying a general negligence/premises liability rule against defendant Sauve. In fact, this Court in affirming Bernstein made plain that a negligence claim can exist against a non-animal owner defendant in the same litigation. In affirming an award of summary judgment to the first party defendant (the dog owner) and the third-party defendant (not the dog owner), this Court noted that there was "no evidence that third-party defendant was negligent." 10 NY3d at 788 (emphasis added). In so holding, this Court necessarily determined that a negligence claim could exist against the third-party defendant, but that there was no evidence to support it. As the owner of the property at issue, there can be no question that defendant Sauve had a duty to maintain his premises in a reasonably safe condition. The inadequate condition of the fence, at a minimum, creates an issue of fact as to whether Sauve knew, or should have known in the exercise of reasonable care, that a cow could escape such fence. This is particularly true in light of his admission that he was aware of cows escaping from the pasture on at least one prior occasion, and likely more. A-211-213. For the above reasons, and for the reasons set forth in plaintiffs' Opening Brief, the strict liability rule cannot be applied to Sauve's benefit, triable issues of fact exist as to defendant Sauve's actual and constructive knowledge of the adequacy of the fence, and the ability of the fence to restrain cows from the roadway. 7 POINT FOUR: TRIABLE ISSUES OF FACT EXIST AS TO DELARM'S OWNERSHIP OF THE COW On this point, defendant Delarm goes to great lengths in his Brief to point out that defendant Williams has admitted that he owned the cow at issue, and that evidence exists to support Delarm's claim that he did not own the cow at issue. The simple fact is, however, that direct, admissible evidence exists to show that Delarm (not Williams) owned the cow. There is absolutely no dispute (and Delarm does not dispute in his Brief) that Bruce Hastings and Jason Hastings both testified that Delarm, on the morning of the accident, admitted he was the owner of the cow. Bruce Hastings testified that when he and his son, Jason, went to the scene later that morning, Delarm stated "somebody hit one of my cows last night". A- 135-137 (emphasis added). Jason separately testified that Delarm "very clearly" (A- 284) said that "somebody hit my cow last night". A- 271, 282 (emphasis added). This testimony, viewed in a light most favorable to plaintiffs, creates a triable issue of fact to be resolved by a jury. This is particularly so given the questionable circumstances surrounding defendant Williams' "Answer" in this case, and his relationship with defendant Delarm. See Plaintiffs-Appellants Opening Brief, at p. 24-26. Coupling the foregoing admissions (which, of course, and contrary to Delarm's arguments, constitute an exception to the hearsay rule), with the incidence of ownership discussed in Plaintiffs-Appellants Opening Brief (Plaintiffs-Appellants Opening Brief, at p. 24-26), issues of fact exist as to Delarm's ownership of the cow which must be resolved by a jury. CONCLUSION The Supreme Court for Franklin County and the Appellate Division, Third Department erred, respectively, in granting and affirming the summary judgment motions of defendants Sauve and Delarm, and the Third Department erred in granting summary judgment to defendant 8 Williams. For the foregoing reasons, and for the reasons set forth in Plaintiffs'-Appellants' Opening Brief, said motions for summary judgment should have been denied in their entirety. DATED: December 13, 2012 FISCHER, BESSETTE, MULDOWNEY & HUNTER, LLP torneys for Plaintiffs-Appe By: Matthew H. McArdle Office and Post Office Address 43 Golf Course Road Post Office Box 420 Malone, New York 12953-0420 Telephone: (518) 481-5000