Bard v. Jahnke

Under the Restatement (Second) of Torts, the owner of a domestic animal who does not know or have reason to know that the animal is more dangerous than others of its class may still be liable for negligently failing to prevent the animal from inflicting an injury. This Court today becomes the first state court of last resort to reject the Restatement rule. I think that is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions.

In this case, as the majority seems to recognize, a jury could have found Jahnke to be negligent, though he had no reason to think that Fred was any more dangerous than any other breeding bull. An expert’s affidavit provides the unsurprising information that all breeding bulls are dangerous, because they “have high libido,” and “will challenge or attack . . . unknown individuals, in order to establish dominance over the herd.” Jahnke knew that Fred was in the low cow district of the dairy barn, and a jury could have found that he was negligent in fail*600ing to impart this information to Timer; Jahnke knew that Timer worked in that barn from time to time, though he did not know that Timer had arranged for Bard to work there on the day of the áccident. The record shows that, if Timer or Bard had known of Fred’s presence, either of them could easily have erected a partition to exclude Fred from the area where Bard was working.

Thus, if ordinary negligence principles apply here, this case should not have been dismissed. The Restatement says that ordinary negligence principles do apply: With exceptions not relevant here, “one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if . . . he is negligent in failing to prevent the harm” (Restatement [Second] of Torts § 518 [b] [1977]). The Comments to this Restatement section, quoted in the majority opinion (at 598), point out the application of this rule specifically to bulls: “the keeper of a bull or stallion is required to take greater precautions . . . than . . . the keeper of a cow or gelding” (Restatement [Second] of Torts § 518, Comment g); “the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects” (§ 518, Comment h).

Courts in at least 20 states appear to follow the Restatement rule (e.g. White v Leeder, 149 Wis 2d 948, 440 NW2d 557 [1989]; Duren v Kunkel, 814 SW2d 935 [Mo 1991] [en banc]; Gardner v Koenig, 188 Kan 135, 360 P2d 1107 [1961]; Sybesma v Sybesma, 534 NW2d 355 [SD 1995]).* The only court outside New York to have ruled otherwise, so far as I know, is the Georgia Court of Appeals (Testamentary Trust of Moseley v Barnes, 245 Ga App 817, 538 SE2d 873 [2000]). In New York, the departments of the *601Appellate Division are divided on this issue. The Second Department has allowed negligence recovery (e.g. St. Germain v Dutchess County Agric. Socy., 274 AD2d 146 [2d Dept 2000]), as has the First Department in some circumstances (e.g. Schwartz v Armand Erpf Estate, 255 AD2d 35 [1st Dept 1999]). The Third and Fourth Departments have rejected negligence recovery (Shaw v Burgess, 303 AD2d 857 [3d Dept 2003]; Smith v Farner, 229 AD2d 1017 [4th Dept 1996]), though an earlier Third Department case had allowed it (Lecznar v Sanford, 265 AD2d 728 [3d Dept 1999]).

Before today, our Court’s opinions were consistent with the Restatement rule. Our most recent case involving animal-inflicted injuries, Collier v Zambito (1 NY3d 444 [2004]), did not address the question of whether general negligence principles were applicable in such cases. Collier involved the rule, correctly stated by the majority here, that an owner who knows or has reason to know of an animal’s dangerous propensities faces strict liability (majority op at 596-597; accord Restatement [Second] of Torts § 509 [1977]). The only issue in Collier was whether the defendant should have known of the dangerous propensities of her dog. Probably most cases involving cats and dogs will turn, as Collier did, on this issue; when the owner of a household pet has no reason to think the animal unusually aggressive, there will often be no basis for a finding of negligence. Our more relevant decisions are older ones, most of them involving bulls and horses.

No opinion of our Court before today announced the rule, now adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face—that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned. This rule was stated, before our Court existed, by the Supreme Court of Judicature in a case involving a horse gored by a bull: “If damage be done by any domestic animal, kept for use or convenience, the owner is not hable to action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief’ (Vrooman v Lawyer, 13 Johns 339 [1816]). Cases after 1816, however, gave reason to doubt this statement was correct.

Thus in Dickson v McCoy (39 NY 400, 401 [1868]), a case involving a horse turned loose in a public street, Judge Dwight of our Court stated a rule like that of the Restatement: “It is not necessary that a horse should be vicious to *602make the owner responsible for injury done by him through the owner’s negligence.” (See Restatement [Second] of Torts § 518, Comment e.) In Benoit v Troy & Lansingburgh R.R. Co. (154 NY 223, 227 [1897]), we rejected liability in a case where horses had run out of control in the street, but left open the possibility of recovery based on negligence in a proper case, saying that an owner who did not know his horses to be vicious could not be liable “in the absence of negligence.” And in Hyland v Cobb (252 NY 325, 326-327 [1929]), though again ruling for the defendant, we cited Dickson for the proposition that “negligence by an owner, even without knowledge concerning a domestic animal’s evil propensity, may create liability.” Concededly, we later affirmed without opinion two Appellate Division cases that seem to stand for a narrower rule (Kennet v Sossnitz, 260 App Div 759 [1st Dept 1940], affd 286 NY 623 [1941]; Brown v Willard, 278 App Div 728 [3d Dept 1951], affd 303 NY 727 [1951]). Nevertheless, it is surprising to find today’s Court rejecting the Restatement and the overwhelming weight of authority in other states, in favor of a rule stated 190 years ago that we have never otherwise endorsed.

For all the faults of modern tort law, and they are many, I do not think that this attempt to cling to the certainties of a distant era will work out well. The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull? Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy? I think there are no good answers to these questions, and it is possible to imagine future cases that will put the rule adopted by the majority under strain. Suppose, for example, a variation on the facts of Collier: What if defendant there had encouraged a child to play not with a grown dog, but with a litter of puppies, thus predictably provoking an otherwise gentle mother dog to rage? Or suppose facts like those in Duren v Kunkel (814 SW2d 935 [Mo 1991] [Holstein, J.]), where a bull was stirred to attack because his owner negligently caused him to be driven through an area where fresh blood was on the ground? In such a case, we could either deny recovery to a deserving plaintiff, despite negligence more blatant than what Jahnke is accused of here, or we could invent a “mother dog” exception or a “fresh blood” *603exception to the rule adopted in this case. I think it would be wiser to follow the Restatement rule, as has almost every other state that has considered the question.

Chief Judge Kaye and Judges Ciparick and Graffeo concur with Judge Read; Judge R.S. Smith dissents and votes to reverse in a separate opinion in which Judges G.B. Smith and Rosenblatt concur.

Order affirmed, with costs.