Wolfgang Doerr, Respondent,v.Daniel Goldsmith, Defendant, Julie Smith, Appellant.BriefN.Y.March 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. >> >> REPLY BRIEF FOR DEFENDANT-APPELLANT MISCHEL & HORN, P.C. One Whitehall Street, 10th Floor New York, New York 10004 212-425-5191 Appellate Counsel to: HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendant-Appellant Date Completed: July 17, 2014 To Be Argued By: Scott T. Horn Time Requested: 15 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 REPLY ARGUMENT ............................................................................................... 5 PLAINTIFF HAS OFFERED THIS COURT NO COMPELLING BASIS FOR RECOGNIZING THE NEW THEORY OF TORT LIABILITY WHICH HE PROPOSES ................................................................................................................ 5 A. PLAINTIFF’S INVOCATION OF 19 TH CENTURY PRECEDENT IS MISPLACED ................................................................................................... 5 B. THIS COURT’S DECISION IN HASTINGS DOES NOT SUPPORT THE IMPOSITION OF THE PROPOSED NEW THEORY OF TORT LIABILITY FOR HOUSEHOLD PET OWNERS ......................................... 8 C. THE IMPOSITION OF THE PROPOSED NEW THEORY OF TORT LIABILITY FOR HOUSEHOLD PET OWNERS IS AGAINST PUBLIC POLICY .........................................................................................................10 CONCLUSION ........................................................................................................13 ii TABLE OF AUTHORITIES Cases Bard v. Jahnke, 6 NY3d 592 [2006] .......................................................................... 5 Collier v. Zambito, 1 NY3d 444 [2004] ................................................................1, 5 Dickson v. McCoy, 39 NY 400 [1868] ............................................................. 2, 6, 7 Gilson v. Metropolitan Opera, 5 NY3d 574 [2005] .................................................10 Haines v. Keahon, 46 AD 164 [1st Dept., 1899] .............................................. 2, 6, 7 Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222 [2001] ................................. 10, 11 Hastings v. Suave, 21 NY3d 122 [2013] ...............................................................2, 9 Hazman v. Hoboken Land & Improvement Co., 50 NY 53 [1872] ................. 2, 6, 7 Hosmer v. Carney, 228 NY 73 [1920] ....................................................................... 1 Lauer v. City of New York, 95 NY2d 95 [2000] .....................................................10 Moynahan v. Wheeler, 117 NY 285 [1889] ..................................................... 2, 6, 7 Tobin v. Grossman, 24 NY2d 609 [1969] ...............................................................10 Vrooman v. Lawyer, 13 Johns 339 [1816] ................................................................ 1 1 PRELIMINARY STATEMENT Defendant, Julie Smith, submits this brief in reply to the Respondent’s Brief filed on behalf of Plaintiff Wolfgang Doerr. In his Respondent’s Brief, Plaintiff unabashedly requests that this Court mint a brand new theory of common-law tort liability, based upon the negligent care and/or supervision of a household pet where the injury is caused by a defendant’s negligent actions but not by “the dog’s instinctive volitional behavior” (Plaintiff- Respondent’s Brief at pp. 12, 18). As proposed by Plaintiff, the universe of potentially negligent actions by a New York pet owner is utterly boundless. The proliferation of litigation, unmentioned but certain, is not Plaintiff’s concern. Nor is the fact that Plaintiff’s proposed new theory of liability has always (and recently) been rejected by this Court. Plaintiff has failed to set forth a legal basis (or a compelling policy-driven basis) for this Court to now depart from some 200 years of precedent and thereby establish that his proposed common-law negligence cause of action can be maintained companion to the strict-liability rule traditionally applied in this State (see, Collier v. Zambito, 1 NY3d 444, 446 [2004]; Hosmer v. Carney, 228 NY 73, 75 [1920]; Vrooman v. Lawyer, 13 Johns 339 [1816]; see also, Smith v. Reilly, 17 NY3d 895 [2011]; Petrone v. Fernandez, 12 NY3d 546 [2009]; Bernstein v. Penny 2 Whistle Toys, Inc., 10 NY3d 787 [2008]; Bard v. Jahnke, 6 NY3d 592, 599 [2006]). Specifically, neither the four 19 th century precedents Plaintiff curiously invokes (see, Moynahan v. Wheeler, 117 NY 285 [1889]; Hazman v. Hoboken Land & Improvement Co., 50 NY 53 [1872]; Dickson v. McCoy, 39 NY 400 [1868]; Haines v. Keahon, 46 AD 164 [1st Dept., 1899]), nor this Court’s decision in Hastings v. Suave (21 NY3d 122 [2013]), supports the radical new rule proposed by Plaintiff herein. Plaintiff’s primary parry, contending that four 19 th century cases involving horses and a cow support recognition of the proposed new theory of tort liability, is seriously misplaced as those cases are manifestly ill-suited in this context and inapposite (cf., Moynahan v. Wheeler, 117 NY 285, supra; Hazman v. Hoboken Land & Improvement Co., 50 NY 53, supra; Dickson v. McCoy, 39 NY 400, supra; Haines v. Keahon, 46 AD 164, supra). Likewise, contrary to Plaintiff’s dubious secondary contention, the Court’s more recent decision in Hastings (supra) does not “stand[] for the proposition that an owner must be responsible for harm which flows directly as a result of his or her negligent acts” (Plaintiff-Respondent’s Brief at p. 18). Rather, the Hastings Court was circumspect in its ruling, and expressly limited its holding to situations where “a farm animal -- i.e., a domestic animal as that term is defined in 3 Agriculture and Markets Law § 108 (7) -- is negligently allowed to stray from the property on which the animal is kept” (Hastings v. Suave, 21 NY3d 122, 125-126, supra). It is equally clear that the negligence claim recognized in Hastings (supra) is grounded in “premises liability” theory, rather than in any new common-law theory of negligent care and/or supervision of an animal, such as proposed by Plaintiff. Even if this Court was inclined to expand Hastings to household pets, a step which this Court has always declined to take, the ratio decidendi of Hastings renders it self-evident that such expansion logically would pertain to situations where the household pet “was permitted to wander off the property through the negligence of the owner of the property and the owner of the animal” (Hastings v. Suave, supra at 125). Of course, such is plainly not the matter at bar, where Defendant’s pet was lawfully permitted to be in the park, off his leash, and enjoyed the right-of-way at the time of the incident in question (R. 227, 235). At bottom, the rule which Plaintiff asks this Court to embrace herein would represent nothing less than a quantum leap beyond Hastings (supra), as well as a wholesale disavowal of the numerous recent precedents established by this Court (see, Smith v. Reilly, 17 NY3d 895, supra; Petrone v. Fernandez, 12 NY3d 546, supra; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787, supra; Bard v. Jahnke, 6 NY3d 592, 599, supra; Collier v. Zambito, 1 NY3d 444, supra). In fact, as 4 recently as 2009, this Court squarely rejected the precise premise advanced by Plaintiff herein; i.e., that a common law negligence cause of action may be maintained for injuries caused by a pet dog (see, Petrone v. Fernandez, 12 NY3d 546, supra). At the end of the day, Plaintiff’s proposed new theory of tort liability, based upon the negligent care and/or supervision of a household pet -- but only where the injury is caused by a defendant’s negligent actions and not by “the dog’s instinctive volitional behavior” -- is unsupportable and unworkable (Plaintiff- Respondent’s Brief at p. 12, 18). It is respectfully submitted that this Court should reject Plaintiff’s invitation to create this new theory of tort liability for the millions of household pet owners in this State, which would extend far beyond the home (and beyond the yard) so as to apply to every one of the myriad and innumerable situations where humans encounter household pets. Accordingly, under the aforementioned longstanding precedents of this Court, the Order of the Appellate Division should be reversed and the Complaint dismissed. 5 REPLY ARGUMENT PLAINTIFF HAS OFFERED THIS COURT NO COMPELLING BASIS FOR RECOGNIZING THE NEW THEORY OF TORT LIABILITY WHICH HE PROPOSES It is indubitable that under the current and well-settled law in this State, a plaintiff injured by a pet dog may pursue recovery under a strict liability theory based upon the animal’s dangerous propensities, but may not pursue “a companion common-law cause of action” under negligence theory (Bard v. Jahnke, 6 NY3d 592, 599 [2006]; see also, Smith v. Reilly, 17 NY3d 895 [2011]; Petrone v. Fernandez, 12 NY3d 546 [2009]; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787 [2008]; Collier v. Zambito, 1 NY3d 444 [2004]). Faced with this truth, Plaintiff offers the Court two arguments in favor of recognizing the new theory of tort liability which he proposes. A. PLAINTIFF’S INVOCATION OF 19TH CENTURY PRECEDENT IS MISPLACED First, invoking four 19 th century precedents, Plaintiff contends that an affirmance “would not represent the creation of a new negligence cause of action * * * 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 [emphasis supplied]” (Plaintiff-Respondent’s Brief at p. 2). In this manner, Plaintiff brazenly asks this Court to jettison its well- 6 established precedents and ostensibly resurrect a long-since eliminated common- law negligence theory of liability which was neither designed for nor applied to household pets (see, Moynahan v. Wheeler, 117 NY 285, supra; Hazman v. Hoboken Land & Improvement Co., 50 NY 53, supra; Dickson v. McCoy, 39 NY 400, supra; Haines v. Keahon, 46 AD 164, supra). Indeed, each of the cases Plaintiff relies upon in advancing this curious argument was decided at a time when it was common for livestock to move through streets and markets carrying goods and people. Moreover, each of these antiquated decisions concerned injuries that were caused by such beasts of burden moving through such places (as opposed to a household dog in a public park). Neither these four inapposite cases nor the torturously parsed rule which Plaintiff styles therefrom are so much as hinted at as a basis for the Appellate Division’s determination in this action. That Plaintiff would offer this as his primary argument speaks volumes regarding the tenuity of the position he now stakes before this Court. Further, we hasten to add, one of the cases invoked by Plaintiff on this point involved a defendant that was not even the owner of the horse in question (see, Hazman v. Hoboken Land & Improvement Co., 50 NY 53, supra). Rather, the defendant was the owner of the ferry company which had improperly placed the bridge on which a horse pulling a “heavily laden” cart had stumbled in 7 disembarking from the ferry (id., at 57). Plainly, this case does not mandate an affirmance herein (cf., Hazman v. Hoboken Land & Improvement Co., 50 NY 53, supra). Significantly, two of the other cases cited by Plaintiff, one involving a cow which bolted free from its handler while being led on a Brooklyn Street (see, Moynahan v. Wheeler, 117 NY 285, supra), and the second involving a horse which bolted outside Manhattan’s Gansevoort market after being struck from behind by a wagon (see, Haines v. Keahon, 46 AD 164, supra), resulted in determinations that said defendants were not liable at all. Clearly, therefore, neither of these cases mandates the conclusion that Defendant is liable herein (cf., Moynahan v. Wheeler, 117 NY 285, supra; Haines v. Keahon, 46 AD 164, supra). The fourth and last case invoked by Plaintiff involved a horse which injured a small boy after being permitted to leave its stable and wander “loose on the street without restraint or control” in the City of Troy (see, Dickson v. McCoy, 39 NY 400, supra). Clearly, this Court’s holding in Dickson (supra) has no application herein, where Defendant’s pet was lawfully permitted to be in the park, off its leash, and enjoyed the right-of-way at the time of the incident (R. 227, 235) (cf., Dickson v. McCoy, 39 NY 400, supra). 8 B. THIS COURT’S DECISION IN HASTINGS DOES NOT SUPPORT THE IMPOSITION OF THE PROPOSED NEW THEORY OF TORT LIABILITY FOR HOUSEHOLD PET OWNERS Plaintiff’s second argument in favor of recognizing his proposed new theory of tort liability is similarly untethered from this Court’s precedent. That is, Plaintiff contends that this Court’s decision in Hastings (supra), a case involving a cow which was permitted to leave its enclosure and wander upon a public road, supports the new theory of tort liability he proposes herein. Specifically, Plaintiff notes that the Hastings Court had permitted a negligence claim against the owner of the farm animal and the owner of the property (see, Plaintiff-Respondent’s Brief at p. 15), and he even goes so far as to posit that Hastings “stands for the proposition that an owner must be responsible for harm which flows directly as a result of his or her negligent acts” (Plaintiff-Respondent’s Brief at p. 18). Like his invocation of 19 th century precedent, however, Plaintiff’s reliance upon Hastings (supra) is misplaced. It is beyond credible cavil that this Court’s decision in Hastings did not overrule the traditional strict-liability rule in this State and it did not otherwise create a common-law negligence cause of action which may be pursued in any and all cases where it is alleged that a household pet has caused injury. Rather, this Court expressly stated that its holding in Hastings (supra), was limited to injuries caused by farm animals, as defined by Agriculture and Markets Law § 108 [7], and 9 only as a result of negligence in allowing the animal to stray from the property on which it was kept (Hastings v. Suave, supra at 125-126). In fact, the Hastings Court expressly declined to address whether the rule enunciated therein applies to “dogs, cats or other household pets” (Hastings v. Suave, supra at 126). To the extent Plaintiff now asks this Court to extend Hastings to cover injuries caused by household pets, such as Defendant’s pet dog (see, Plaintiff- Respondent’s Brief at p. 18), the rationale undergirding the Hastings decision simply has no application herein. In this vein, the negligence cause of action recognized in Hastings (supra), was plainly premised upon a “premises liability” theory, as opposed to the negligent care and/or supervision theory proposed herein. If this Court was inclined to expand the Hastings rule to household pets, then clearly such expansion would apply to situations where the household pet is permitted “to stray from the property on which the animal is kept” (Hastings v. Suave, supra at 126). Such is not the case at bar. In light of the foregoing, Plaintiff asks this Court to establish a new common-law theory of tort liability attaching to owners of household pets which has never been recognized, has been expressly rejected numerous times, and would constitute a quantum leap beyond the rule circumspectly enunciated by the Court in Hastings (supra). 10 C. THE IMPOSITION OF THE PROPOSED NEW THEORY OF TORT LIABILITY FOR HOUSEHOLD PET OWNERS IS AGAINST PUBLIC POLICY The new theory of tort liability proposed by Plaintiff based upon the negligent care and/or supervision of a household pet -- but only where the injury is caused by a defendant’s negligent actions and not by “the dog’s instinctive volitional behavior” -- is not only contrary to this Court’s precedent but it is also imprudent (Plaintiff-Respondent’s Brief at p. 12, 18). It is black-letter law that before the Court embraces such an expansion of legal duties and theories of liability, it is incumbent upon the Court to make its determination “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Gilson v. Metropolitan Opera, 5 NY3d 574, 576-577 [2005]). Further, the “courts must be mindful of the precedential, and consequential, future effects of their rulings, and ‘limit the legal consequences of wrongs to a controllable degree’” (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232, [2001], quoting Lauer v. City of New York, 95 NY2d 95, 100 [2000]; Tobin v. Grossman, 24 NY2d 609, 619 [1969]). Any such extension of legal duties and theories of 11 liability “must be tailored to reflect accurately the extent that its social benefits outweigh its costs” (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232, supra). Here, Plaintiff’s proposed new theory of tort liability will, at a minimum, be imposed upon millions of household pet owners in this State. Beyond that, the proposed negligence theory of recovery would also apply to any person who acts unreasonably in connection with any household pet, regardless of whether that person is the pet owner, the owner of the property where the pet is housed, or even just an unrelated passerby who interacts in some fashion with the pet. Liability would thus extend far beyond the home and beyond the yard so as to apply to every one of the myriad and innumerable situations where humans encounter household pets. New channels of liability would be instantly created and the courts clogged with a proliferation of cases questioning the reasonableness of every decision inherent in owning a household pet, owning property on which a household pet is kept, or interacting with someone else’s household pet. The types of claims which would be engendered by Plaintiff’s proposed theory of tort liability are bounded only by the human imagination. At the end of the day, Plaintiff’s proposed new theory of tort liability would create limitless potential for liability concomitant with a vast and unavoidable proliferation of claims. The inevitable result will be that the household pets which 12 we hold dear as important and valuable contributors in our lives, our families and our societies, will come to be viewed as significant potential sources of legal liability, and thereby diminished. Given the foregoing, it is clear that the benefits enjoyed by the millions of household pet owners in this State, and the costs which would be imposed as a consequence of Plaintiff’s proposed new theory of liability, militate heavily against the Court accepting Plaintiff’s proposal as a matter at law. 13 CONCLUSION For the foregoing reasons, and the reasons previously stated in Appellant’s Main Brief, it is respectfully requested that the Order appealed from be reversed and the Complaint dismissed, with costs and disbursements and such further relief as the Court deems just under the circumstances. Dated: New York, New York July 17, 2014 Respectfully submitted, ___________________________ MISCHEL & HORN, P.C. One Whitehall Street New York, New York 10004 212.425.5191 sth@mhappeals.com BY: SCOTT T. HORN, ESQ. Appellate Counsel to: Hoey, King, Epstein, Prezioso & Marquez Attorneys for Defendant Julie Smith Of Counsel: SCOTT T. HORN, ESQ. NAOMI M. TAUB, ESQ.