Cheryl Dobinski, Appellant,v.George O. Lockhart, et al., Respondents.

Brief

N.Y.March 26, 2015

0 To be Argued by: DENNIS J. BISCHOF, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2014-00290 CHERYL DOBINSKI, Plaintiff-Appellant, vs. GEORGE O. LOCKHART and MILAGROS LOCKHART, Defendants-Respondents. Erie County Index No.: 2012/800381. Appellate Division Docket Number: CA 14-00100. REPLY BRIEF FOR PLAINTIFF-APPELLANT CHERYL DOBINSKI DENNIS J. BISCHOF, LLC Attorneys for Plaintiff-Appellant Cheryl Dobinski 6720 Main Street, Suite 250 Williamsville, New York 14221 Telephone: (716) 630-6500 Facsimile: (716) 630-6501 DENNIS J. BISCHOF, ESQ. Of Counsel Date of Completion: February 26, 2015. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 Table of Contents Table of Contents ........................................................................................................ i Table of Authorities ................................................................................................... ii Argument in Reply .................................................................................................... 1 Conclusion ...................................................................................... 6 Table of Authorities CASES Collier v. Zambito, 1 N.Y.3d 444 (2004) .............................................................. 4, 5 Doerr v. Goldsmith, 110 A.D.3d 453 (2013) ............................................................ 3 Hastings v. Sauve, 21 N.Y.3d 122 (2013) ................................................. 1, 2, 3, 4, 5 Petrone v. Fernandez, 12 N.Y.3d 546 (2009) ............................................................ 4 TREATIES PJI 2:10 ..................................................................................................................... 2 PJI 2:25 ..................................................................................................................... 2 PJI 2:70 ..................................................................................................................... 2 STATUTES Local Law No. 1 of the year 2005 ......................................................................... 2, 3 ii Argument in Reply People who negligently fail to properly control dogs should be able to be held accountable for their negligence under New York law. This Court should hold that the blanket rule against negligence claims in such cases should be updated. Hastings v. Sauve, 21 N.Y.3d 122 (2013) holds that the owner of an animal may be liable under ordinary tort-law principles when that animal is negligently allowed to stray from· a defendants' property on which the animal is kept. This Court granted leave in this case in order to answer the question of whether the Hastings rule should apply to a dog. The Hastings rule should apply to dogs. Ordinary tort-law principles should apply to dog owners and/or people who are responsible for controlling a dog. As noted in Hastings, an accident caused by an animal's aggressive or threatening behavior is fundamentally distinct from one caused by an animal owner's negligence in permitting the animal from wandering off the property where it is kept. Id. This Court found that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities "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". I d. The record reflects that the Lockharts took little or no care to keep their dogs out of the roadway in the case at bar. The Lockharts failed to properly control their dogs. There is proof that unleashed dogs owned by the Lockharts had previously interfered with traffic. One such dog, Molly, was killed in the roadway by a snowplow. R. 158 and R 220. In 2007, Mr. Lockhart owned a husky named Sherman that was also killed by a car in the roadway. R. 197 and R. 220. The Lockhart's defense that Harvey and Ralphy had never previously wandered off the Lockhart Farm merely highlights the issues presented in this case. Their position -1- also sidesteps the fact that the Lockharts negligently trained their dogs to chase vehicles. R. 160, 161, 180, 181,229,230, and 231. Molly and Sherman no longer posed a threat to traffic because those dogs were killed after the Lockharts negligently allowed the dogs to interfere with traffic. That doesn't mean that the negligently controlled, unlicensed, and unleashed Harvey and Ralphy didn't pose a threat to persons who were lawfully using the public roadway adjacent to the Lockharts' property. Franklinville's leash law creates a statutory standard of care for the Lockharts. PJI 2:25 (statute of general application) is applicable to the case at bar because the Lockharts violation of the leash law does not create liability per se. The leash law was designed to protect Mrs. Dobinski from this very incident. The Lockharts violation of the leash law led directly to Mrs. Dobinski' s injuries and damages. PJI 2:25 asks the trial court to "here read statute and relate facts to statute". Id. The Hastings rule can be applied consistently using PJI 2:25. A ruling that dog owners may be found liable under ordinary tort-law principles can also be consistently applied with ease using PJI 2:10 (negligence defined) and PJI 2:70 (proximate cause). The Lockharts now claim for the first time that they did not violate the leash law. This new assertion is without merit. The Lockharts knowingly violated the local leash law. R. 173. R. 222. R 271-278. Mr. Lockhart routinely let his dogs run loose to play around- unleashed. R. 222. Only Cooper and Juno were leashed -Harvey and Ralphy were not leashed. R. 222 and R. 226. Harvey and Ralphy were not on their own property at the time of the accident. Rather, the dogs had run off their property into the adjacent roadway, striking Mrs. Dobinski. Thus, the dogs were running at large in violation of the local leash law at the time of the accident. -2- Immunizing the Lockharts from liability in the case at bar would completely defeat the purpose of the Town of Franklinville's local leash law which reads: "The Town Board of the Town of Franklinville (the "Town") finds that the running at large and other uncontrolled behavior of licensed and unlicensed dogs has caused physical harm to persons, damage to property and created nuisances within the Town. The purpose of this Local Law is to protect the health, safety and well-being of persons and property by imposing restrictions on the keeping and running at large of dogs within the Town." Local Law No.1 ofthe year 2005. R. 273. Doerr v. Goldsmith, 110 A.D.3d 453 (2013) is applicable to the case at bar. In Doerr, Plaintiff bicyclist was injured when he fell off his bike to avoid striking the defendant's unleashed dog which was running across traffic. The dog was trying to reach the defendant owner who had called out to her boyfriend to put her dog down so that it could run to her. The First Department held that the blanket rule does not apply to situations where the negligent actions of a person turns an animal into an instrumentality of harm. The accident in Doerr occurred because of the conduct of the defendants in releasing the dog into traffic. The accident in the case at bar occurred because of the Lockharts negligent acts and omissions - leash law violation, training their dogs to chase vehicles, etc. The Lockharts trained their dogs to be an instrumentality of harm when they were trained to chase the Lockharts while they drove a four-wheeler, capable of running a distance of no less than one-half mile and running at speeds of 20 to 30 MPH. R. 230 and 231. Applying Hastings v. Sauve, 21 N.Y.3d 122 (2013) to the case at bar would not result in financial burdens to dog owners. The cost of a leash is minimal. Using a length of rope is even less expensive. Most dog owners own leashes. The -3- Lockharts owned leashes but they failed to use them. They also had a fenced in dog pen area that they failed to use. Dogs are traditionally kept confmed within the owner's home, within a fenced yard, or controlled with a leash. Public Parks have created designated fenced-in areas where dogs can run free, off a leash. Otherwise, dogs are required to be controlled - most commonly with a leash. Applying Hastings v. Sauve, 21 N.Y.3d 122 (2013) to the case at bar would not lead to inconsistent application of the law. The rule would simply apply to fact scenarios similar to the case at bar. Applying the Hastings rule to the case at bar does not eviscerate New York law as it pertains to Notice ofvicious propensities. Rather, an application of Hastings will help clarify the law in this area. It is not too much to ask dog owners to properly control their dogs. An application of Hastings to the case at bar does not overturn Collier v. Zambito, 1 N.Y.3d 444 (2004) and Petrone v. Fernandez, 12 N.Y.3d 546 (2009). Rather, applying the Hastings rule would be an appropriate refmement of the law as it pertains to persons responsible for controlling dogs. Common law negligence has no Notice requirements - for good reason. A negligent defendant who is creating a dangerous condition through his or her own acts and omissions is aware of his or her own activities, thus Notice is not required. Likewise, Notice is not required relative to statutory violations. Ignorance of the law is no excuse. The current rule requiring prior Notice of vicious propensities in any and all cases involving a dog has worn thin and is patently inadequate. The rule is antiquated - it is 199 years old - and the rule needs to be refmed and updated to meet contemporary standards. Past attempts at refming the rule have been cumbersome at times, with the defmition of "vicious propensities" being stretched to the limit. What once was the "prior bite" rule has evolved into a rule that asks -4- whether a dog possessed the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation". Collier infra. The Court could easily find that issues of fact preclude summary judgment in the case at bar, affirming Justice Devlin. It is respectfully submitted that the citizens of New York State will be better served with a holding that the Hastings rule applies to dogs and that ordinary tort-law principles should apply to persons responsible for controlling a dog. -5- Conclusion For the foregoing reasons, it is respectfully submitted that the order of the Appellate Division should be reversed and the Lockhart's motion for summary judgment denied. This Court should hold that the Hastings rule applies to dogs and that ordinary tort-law principles should apply to persons in charge of controlling. Dated: February 26,2015 Respectfully submitted, Dennis J. Bischof, LLC Dennis . Bisch f, Esq. Attorney for Pl "ntiff-Appellant Mrs. Dobinski 6720 Main Streef, Suite 250 Williamsville, New York 14221 (716) 630-6500 -6-