Wolfgang Doerr, Respondent,v.Daniel Goldsmith, Defendant, Julie Smith, Appellant.BriefN.Y.Mar 26, 2015APL-2014-00032 New York County Clerk’s Index No. 103840/10 Court of Appeals STATE OF NEW YORK WOLFGANG DOERR, Plaintiff-Respondent, against DANIEL GOLDSMITH, Defendant, and JULIE SMITH, Defendant-Appellant. >> >> BRIEF FOR PLAINTIFF-RESPONDENT GREGORY W. BAGEN Attorney for Plaintiff-Respondent 317 Clock Tower Commons P.O. Box 380 Brewster, New York 10509 845-279-7000 Of Counsel: Gregory W. Bagen Dara Warren To Be Argued By: Gregory W. Bagen Time Requested: 15 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT .................................................................... 1 CERTIFIED QUESTION PRESENTED ....................................................... 3 RELEVANT FACTS ...................................................................................... 4 The Accident ......................................................................................... 4 Litigation .............................................................................................. 6 The First Appellate Decision and Order ............................................... 8 The Second Appellate Decision and Order .......................................... 9 LEGAL ARGUMENT .................................................................................. 12 THE COURT SHOULD PERMIT A NEGLIGENCE CAUSE OF ACTION TO PROCEED IN THIS MATTER WHERE THE INCIDENT WAS CAUSED BY DEFENDANTS’ NEGLIGENT ACTIONS AND NOT THE DOG’S OWN INSTINCTIVE VOLITIONAL BEHAVIOR .................................... 12 CONCLUSION ............................................................................................. 19 ii TABLE OF AUTHORITIES Page CASES Bard v. Jahnke, 6 NY3d 592 (2006) ...................................................... passim Collier v. Zambito, 1 NY3d 444 (2004) ................................................... 2, 14 Dickson v. McCoy, 39 NY 400 (1868) ......................................................... 13 Haines v. Keahon, 46 AD 164, 61 NY 757 (1st Dept. 1899) ........................ 13 Hastings v. Suave, 21 NY3d 122 (2013) ............................................... passim Hazman v. Hoboken Land & Improvement Co., 50 NY 53 (1872) .............. 14 Hosmer v. Carney, 228 NY 73 (1920) ...................................................... 2, 13 Moynahan v. Wheeler, 117 NY 285 (1889) .................................................. 13 Petrone v. Fernandez, 12 NY3d 546 (2009) ......................................... passim Smith v. Reilly, 17 NY3d 895 (2011) ............................................................ 17 1 PRELIMINARY STATEMENT Plaintiff-Respondent Wolfgang Doerr, respectfully submits this Brief with respect to the Order dated February 6, 2014, whereupon the Appellate Division granted defendant leave to appeal and certified the following question of law to this Court - “Was the order of Supreme Court, as affirmed by this Court, properly made?” The Supreme Court order, as affirmed by the First Department, denied defendant’s summary judgment motion dismissing the complaint. This is an action for serious personal injuries sustained on May 31, 2009 when plaintiff, who was riding a bicycle, was caused to collide with defendant’s dog which had been directed by its owners to cross the street in an unsafe manner that posed a foreseeable risk of harm to others. As will be demonstrated in this Brief, the denial of summary judgment, as affirmed by the First Department, was proper. This Court’s decision in Hastings v. Suave, 21 NY3d 122 (2013) recognized that an accident caused by an animal’s aggressive or threatening behavior was “fundamentally distinct” from one caused by an animal owner’s negligence in permitting the animal from wandering off the property. Thus, under certain circumstances, this Court has recognized the viability of a negligence cause of action with respect to animals 2 Where, as here, plaintiff alleges that the injury came about due to the negligent actions of the defendants, and not the dog’s own instinctive, volitional behavior, a negligence cause of action should be permitted to proceed. Such a determination would not be contrary to this Court’s precedents in Collier v. Zambito, 1 NY3d 444 (2004), Bard v. Jahnke, 6 NY3d 592 (2006) and Petrone v. Fernandez, 12 NY3d 549 (2009), because this claim is not about the particular actions of an animal that led to a person’s injury but about the actions of a person that turned an animal into an instrumentality of harm. Permitting a negligence action under the circumstances present in the matter at bar would also be in accordance with the rationale set forth in the Hastings decision. For clearly, the Court in Hastings sought to remedy a wrong caused by the application of the vicious propensity rule to all cases related to animals; which, in practice, “immunized defendants” for harm which flowed directly as a result of his or her negligent acts in regard to their animals and property. This would not represent the creation of a new negligence cause of action as defendant contends but rather the recognition of the one which existed in common law prior to this Court’s decision in Hosmer v. Carney, 228 NY 73 (1920) whereupon it was eliminated as though it never existed. For the reasons set forth herein, the question of law certified to this Court must be answered in the affirmative. 3 CERTIFIED QUESTION PRESENTED Was the order of the Supreme Court, as affirmed by this Court, properly made? It is respectfully submitted that the question presented must be answered in the affirmative. 4 RELEVANT FACTS The Accident On Sunday, May 31, 2009, at approximately 7:00 a.m., plaintiff rode his bicycle on the southern part of the Central Park Loop road. (R: 77-78)1 On the weekends or off hours, bicycles were expected to travel in the car lanes, as cars were not permitted in the Park. (R: 81) At the time of the subject occurrence, Mr. Doerr had been riding for approximately ten minutes in the right car lane. (R: 95, 97) He explained that traffic on the loop at the time of the accident was very typical for the weekend, with a lot of cyclists traveling where the cars normally were and a lot of runners in areas designated for them. (R: 96) While plaintiff had seen dogs in the area of the loop on prior occasions, they were mostly leashed. (R: 102) The accident occurred while plaintiff was riding his bicycle around the loop. He testified that he had passed the intersection where cars merge onto Seventh Avenue and was not near one of the designated areas for pedestrians to cross or in the vicinity of a traffic light or stop sign. (R: 103) When plaintiff was approximately thirty to fifty yards away from the accident situs, he observed defendants for the first time. (R: 103, 106-107) Specifically, he noticed a woman on the left side of the loop and a man on the right side of the loop. (R: 106) The 1 Reference is made to the page number(s) of the Record on Appeal. 5 man on the right side “was almost hugging the dog, so he had his arm around the chest and the neck of the dog” and on the left side, he “saw a girl slightly bending down and clapping her hands on her upper thighs.” (R: 106) Upon making this observation, plaintiff pressed his brakes and screamed out to the couple “watch your dog.” (R: 108, 111, 118-119) It appeared to him that the woman, by clapping her hands on her thighs, was making a very common sign for calling the dog towards her. (R: 108, 118-119) Plaintiff called out to the couple because he feared that the woman might call the dog and the man would let the dog go. (R:108) Within two seconds of plaintiff’s warning, the dog was in the middle of the road and although plaintiff tried to brake, there was no time to react so as to avoid contact between the front tire of his bicycle and the dog’s body. (R: 108-109, 112, 118-119) As a result of the contact, plaintiff was propelled off the bike, landed on his chin and sustained severe personal injuries to his face which necessitated surgical repair (R: 46-47, 121) Essentially, defendant Smith does not dispute plaintiff’s version of the facts as set forth herein. She states that she was in Central Park with her dog and boyfriend, Dan Goldsmith.2 (R: 220) Upon entering the Park she removed her dog’s leash. (R: 227) She acknowledged that she was aware of the rule that 2 At the time of the examination before trial of Ms. Smith, Mr. Goldsmith was still her boyfriend but he had chosen not to answer the complaint and/or submit to an examination before trial. (R: 221, 241) 6 required a dog owner to keep the dog under control at all times, even when permitted to be off a leash. (R: 228) She considered her dog to be well-behaved, obedient and compliant when given instructions and claimed that she had her dog under control. (R: 228-229) At the time of the subject occurrence, defendant Smith had crossed the road and the dog remained with Goldsmith. (R: 231) She acknowledged that she then called the dog over to her by saying “Lena, come here.” (R: 231-232) She did not recall whether she also gestured to the dog by slapping her palms on her thighs but said that this was certainly possible. (R: 232) Defendant Smith also acknowledged hearing plaintiff yell something at her which was either “get out of the way” or “watch the dog”, and testified that this was the first time she noticed the bicyclist. (R: 233-234) Immediately after the incident, defendant Smith left the scene to find her dog which had run off and Goldsmith remained in the area. (R: 239) Litigation Plaintiff commenced an action against defendants Goldsmith and Smith by service of a Summons and Verified Complaint on or about March 24, 2010. (R: 16) In his Complaint, Doerr alleged that defendants Goldsmith and Smith “controlled and directed their dog into the path of the plaintiff, Wolfgang Doerr, causing him to be propelled from his bicycle and suffer serious injury.” (R: 17) He also alleged that defendants were reckless and/or negligent in that they knew the park was 7 frequented by bicycle traffic and knowingly created a dangerous condition by directing and encouraging the dog to cross a bicycle path thereby causing plaintiff to crash. (R: 18) No allegations regarding vicious propensities or strict liability were alleged. Thereafter, issue was joined as to Julie Smith on or about May 5, 2010. (R: 23-24) In his Verified Bill of Particulars, plaintiff again alleged that defendants negligently “controlled and directed their dog into the path of plaintiff.” (R: 45) Defendant Smith moved for summary judgment dismissing the complaint on the ground that she could not be held liable under a negligence theory for injuries allegedly caused by her ownership of a domestic animal in the absence of proof of that animal’s vicious propensities. (R: 11-12) Plaintiff opposed the motion and argued that the instant matter was not about the actions of the animal but rather the actions of the handler or owner of the animal with regard to their misconduct in negligently directing the dog into the path of plaintiff. (R: 261, 263) In denying summary judgment, the motion court noted that defendant Smith was correct in her assertion that where harm is caused by a domestic animal, the owner’s liability is determined solely by the rule of strict liability. (R: 6) However, the court recognized that plaintiff did not assert that his alleged injuries were caused by the misconduct of the animal but by the misconduct of the defendant in directing the dog to cross the street in an unsafe manner that posed a foreseeable 8 risk of harm to others. (R: 6) The court distinguished the cases relied upon by defendant on the ground that strict liability for harms caused by a domestic animal involve cases where the animal is acting of its own volition or reacting to a situation according to its animal instincts. (R: 6) The First Appellate Decision and Order By Order entered on April 16, 2013, the Appellate Division, First Department, reversed the denial of summary judgment and dismissed the complaint. (R: 285-293) The majority held that “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.” (R: 286) Specifically, it was the position of the majority that the Court of Appeals has held that a person who is injured in an accident involving an animal can never have a claim for negligence against the animal’s owner, but can only recover in strict liability on a showing that the owner knew of the animal’s vicious propensities, citing the cases of Petrone v. Fernandez, 12 NY3d 546 (2009) and Bard v. Jahnke, 6 NY3d 592 (2006). In light of the clear constraints against recognizing such negligence claims imposed by the Court of Appeals, the majority found that because there was no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, her motion for summary judgment should have been granted. (R: 286) 9 In the dissent, Justice Mazzarelli noted that the Bard/Petrone rule has made it virtually impossible for people injured by animals to recover if they could not establish the defendants’ knowledge of the animals’ vicious propensities. (R: 291) Indeed, even if the injury was not caused by “vicious” behavior, no remedy exists. (R: 291) The dissent noted that the common denominator in each of the cases relied upon by the majority was that the plaintiff was injured because an animal did what nature permits it to do in the absence of its owner’s control. (R:292) Whereas in this matter, had defendant Smith not called the dog and defendant Goldsmith not let the dog go, plaintiff would have ridden past them without incident. (R: 292) Defendants’ action were likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who was about to ride into the ball’s path. (R: 292) Thus, the instant matter was different from the Court of Appeals cases relied upon by the majority because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that caused the accident. (R: 292) The Second Appellate Decision and Order After this Court’s decision in Hastings v. Suave, 21 NY3d 122 (2013), plaintiff moved by Notice of Motion dated May 8, 2013 to renew/reargue on the ground that there had been a change in the relevant law or, in the alternative, for 10 leave to appeal to Court of Appeals. By Order entered October 3, 2013, the court recalled and vacated its Decision and Order entered on April 16, 2013 and affirmed the motion court’s denial of summary judgment. (R: 284) In its decision, the majority noted that this Court had recently revisited Bard and Petrone when it decided an appeal in Hastings v. Suave, 21 NY3d 122 (2013). (R: 279) In reversing the grant of summary judgment to the defendants, the Hastings Court recognized that 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 was kept. (R: 279) The Hastings Court stated 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.” (R: 279-280) While the majority recognized that Hastings did not decide whether to apply the holding to dogs at that time, that should not be an impediment to denial of summary judgment in the instant matter because this case is of an entirely different ilk than Hastings, Bard and Petrone. (R: 280) It is not about the particular actions of an animal that led to a person’s injury. (R: 280) Rather, it is about the actions of a person that turned an animal into an instrumentality of harm. (R: 290) It was 11 defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident. (R: 281) Justices Andrias and DeGrasse dissented, as they would not have recalled the prior order granting summary judgment. (R: 282) However, the dissenters would have nonetheless granted leave to appeal to the Court of Appeals so as to permit the Court to determine whether it would extend the Hastings rule and depart from the strict liability rule where an accident may be deemed to have been caused by some direct action of a dog’s owner rather than the dog’s natural propensities. (R: 283) 12 LEGAL ARGUMENT THE COURT SHOULD PERMIT A NEGLIGENCE CAUSE OF ACTION TO PROCEED IN THIS MATTER WHERE THE INCIDENT WAS CAUSED BY DEFENDANTS’ NEGLIGENT ACTIONS AND NOT THE DOG’S OWN INSTINCTIVE VOLITIONAL BEHAVIOR From the outset of this case, it was never plaintiff’s contention that defendant’s dog exhibited “vicious propensities” of which defendants were aware, but rather, that liability lies with defendants because they affirmatively and negligently directed the actions of the animal that caused the injury to the plaintiff. This is not a case about a misbehaving dog but rather one that did what it was told to do with unfortunate consequences. Recently, this Court revisited its decisions in Bard v. Jahnke, 6 NY3d 592 (2006) and Petrone v. Fernandez, 12 NY3d 546 (2009) in its decision in Hastings v. Suave, 21 NY3d 122 (2013). As noted by the First Department in its October 3, 2013 decision, by reversing the grant of summary judgment to defendants in Hastings, this Court recognized that 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 was kept. (R: 279) 13 Contrary to defendants’ position, recognition of a negligence cause of action where animals are concerned is not without precedent. Prior to Hosmer v. Carney, 228 NY 73, 126 N.E. 650 (1920) this Court had in fact recognized a negligence cause of action with respect to the actions of an owner. In Dickson v. McCoy, 39 NY 400 (1868), defendant had negligently permitted his horse to go loose and unattended upon a populous city street where he kicked and injured the plaintiff. While the court noted that there was no proof to sustain the allegation that the horse was known to be vicious, the jury’s finding of liability was affirmed on the ground that defendant was clearly negligent in permitting the animal to go at large upon the sidewalk. Id. at 401. The Court stated: It is not necessary that a horse should be vicious to make the owner responsible for the injury done by him through the owner’s negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault. If the most gentle horse be driven so negligently as to do injury to person or property, the owner or driver will be responsible. Id. [emphasis added] Likewise, in Moynahan v. Wheeler, 117 NY 285 (1889), plaintiff was injured in the street by a cow belonging to defendant. The Court recognized both a claim premised upon vicious propensities as well as one for negligence with respect to the failure to use reasonable care with regard to defendants’ management of the animal. Id. at 288. Similarly, in Haines v. Keahon, 61 NY 757 (1st Dept. 1899), it was proper to submit a question to the jury as to whether defendant’s 14 servants were negligent in their management of the horses so that they were allowed to come near the plaintiff’s wagon. This Court in Hazman v. Hoboken Land & Improvement Co., 50 NY 53 (1872) also recognized a negligence cause of action where the actions of a person turned an animal into the instrumentality of the harm. It was held in Hazman, that: [t]o force a horse, attached to a heavily laden cart upon a slippery deck, to mount a perpendicular lift of eight inches was not only unnecessary, but, from the nature of the act, improper and dangerous. It was a careless, needless act, likely to produce the result which followed to the horses; and, if, in producing that result the plaintiff was injured without his fault there is no principle which will relieve the defendant from liability. It is as liable for negligently causing a horse to fall on him as it would be for negligently causing a stick of timber or any article of freight, which was being removed from the boat, to fall on him. [emphasis added] Upon the theory of plaintiff, which the jury adopted, the injury was the direct consequence of the defendant’s negligent act. Id. at 58-59 In Hastings v. Suave, 21 NY3d 122 (2013), this Court, in reversing the Appellate Division, noted that unlike Collier, Bard and Petrone, it did not involve aggressive or threatening behavior by any animal but instead was distinct in that defendants permitted an animal to wander off the property due to their own negligence. Id. Thus, 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” - in a case like this “would be to immunize defendants who take 15 little or no care to keep their livestock out of the roadway or off of other people’s property.” Id. Thus, based upon the Hastings decision, this Court has held that under certain circumstances an action sounding in negligence, as opposed to the strict liability, is indeed viable and not prohibited in the State of New York. In the matter at bar, defendants’ actions were more egregious than those presented in Hastings since defendants’ negligence was not in merely permitting the dog to wander into the roadway but in affirmatively and actively causing him to be there. As such, the appropriate standard to be applied to the underlying facts in this action is one of negligence and not strict liability. Such a determination would not be contrary to this Court’s precedents in Bard and Petrone because, as noted by the First Department, the instant matter is “of an entirely different ilk” since it “is not about the particular actions of an animal that lead to a person’s injury” but “about the actions of a person that turned an animal into an instrumentality of harm.” (R: 280) In Bard, 6 NY3d at 594, plaintiff was injured when a bull, who had been permitted to roam freely on the property, charged at him. Plaintiff produced an expert affidavit that breeding bulls are generally dangerous and apt to express their dominance through acts of aggression. Id. at 596, 598. This Court noted its prior position it had never held that male domestic animals kept for breeding or female 16 domestic animals caring for their young, are dangerous as a class. Id. at 599. As to an alleged negligence cause of action, this Court found it to be no different from arguing that defendant should have known of the bull’s vicious propensities because “bulls, in particular breeding bulls, are generally dangerous and vicious animals.” Id. at 598-599. The Bard case is clearly distinguishable from the matter at bar in that Bard dealt with the instinctive behavior of bulls and not the negligent actions of the owner which caused the accident. In Petrone, 12 NY3d 547, this Court refused to consider a negligence action where plaintiff injured her finger during the course of entering her vehicle after she perceived that a dog was chasing her. Defendant dog owner, who was near the house, yelled for the dog to come back and the dog obeyed. Id. Plaintiff could not recall whether the dog even barked at her and the dog did not bite, threaten or make any contact whatsoever with plaintiff. Id. Defendant owner of the property argued that he did not own the dog and was not even present when the complained- of events took place. Id. at 549. As pointed out by Justice Mazzarelli in her dissent in the April 16, 2013 Doerr decision, in Petrone, plaintiff was injured because an animal did what nature permits it to do in the absence of the owner’s control. (R: 292) Indeed, defendant home owner was not even present at the time of the occurrence. However, in the 17 instant matter, the defendants were in control of the dog at all times until seconds of the subject occurrence. (R: 228) Defendant Smith testified that her dog was well-behaved, obedient and compliant when given instructions. (R: 228-229) Had Smith not affirmatively called the dog and Goldsmith not let it go, plaintiff would have ridden by without incident. (R: 292) This case is about a dog following its owners’ negligent instructions and not about an animal acting in accordance with its own volitional behavior. For similar reasons, the case of Smith v. Reilly, 17 NY3d 895 (2011) is also distinguishable, as the owner of that dog was not in control of it at the time it interfered with the bicyclist nor did they direct the dog to run into the street. Since this Court has recognized the viability of a negligence cause of action under certain circumstances with regard to injuries caused by animals, it is respectfully submitted that one should be permitted in the instant matter. As set forth herein, the accident was caused by defendants’ own negligent actions and not by the dog’s own instinctive volitional behavior. Thus, this case is distinguishable from the Bard/Petrone line of case. As pointed out by the majority in the Doerr decision: Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. (R: 280) 18 Certainly, in the matter at bar, defendants’ own affirmative and negligent conduct should not be shielded from liability merely because the instrumentality of the harm happened to be an animal. Illustrative of this point is the hypothetical example given by Justice Mazzarelli in her dissent in the April 16, 2013 decision, wherein a pet owner opens the window to let in some air and in the process inadvertently knocks a cat off its perch. (R: 293) Under the present law, if the cat falls to the sidewalk below and injures a pedestrian, there could be no liability- an absurd result dictated by the law as it presently exists. (R: 293) Permitting a negligence action under the circumstances present in the matter at bar would be in accordance with the rationale set forth in the Hastings decision. For clearly, the Court in Hastings sought to remedy a wrong caused by the application of the vicious propensity rule to all cases related to animals; which, in practice, “immunized defendants” who took little care to keep their animals out of the roadway or off people’s property. Simply put, the Hastings rule stands for the proposition that an owner must be responsible for harm which flows directly as a result of his or her negligent acts. Defendant’s policy argument that permitting a negligence action to proceed in the instant matter will “open a Pandora’s Box” and that “every action in owning a dog, caring for a dog, walking a dog, playing with a dog, or permitting a dog to 19 play with other dogs would be subject to legal scrutiny”3 is simply without merit and a gross exaggeration. Holding pet owners responsible under negligence principles where it is their actions which occasion the harm as compared to a pet’s own volitional behavior, will not unnecessarily expand liability. It will, however, remedy an illogical, harsh and unfair result where an injury was not caused by the “vicious behavior” of an animal but by the owner’s own negligence. CONCLUSION For the foregoing reasons, it is respectfully requested that the Order appealed from be affirmed, with costs and disbursements and such further relief as the Court deems just under the circumstances. Dated: New York, New York June 30, 2014 Respectfully submitted, GREGORY W. BAGEN Attorneys for Plaintiff-Respondent 317 Clock Tower Commons Brewster, New York 10509 (845) 279-7000 email@example.com __________________________ By: Dara L. Warren Appellate Counsel for Plaintiff-Respondent 3 Reference is made to appellant’s Brief at pages 17-18.