Bloomer v. Shauger

94 A.D.3d 1273, 942 N.Y.S.2d 277
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 12, 2012
StatusPublished
Cited by262 cases

This text of 94 A.D.3d 1273 (Bloomer v. Shauger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloomer v. Shauger, 94 A.D.3d 1273, 942 N.Y.S.2d 277 (N.Y. Ct. App. 2012).

Opinions

Egan Jr., J.

Appeal from an order of the Supreme Court (Zwack, J.), entered November 12, 2010 in Ulster County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint.

In 2003, defendant acquired two American Quarter horses, Whiskey and Topper. The horses, previously owned by defendant’s deceased brother, had been companions for more than two decades and, by all accounts, would become agitated whenever they were separated from one another. Additionally, according to defendant, Whiskey and Topper were “barn sour” — meaning that they would not go inside a barn or enclosed structure— and, as a result, were kept in a small paddock on defendant’s property.

Topper unfortunately fell ill in January 2008 and, two months later, after discovering Topper unable to stand, defendant contacted her veterinarian and arranged to have him put down — a task performed inside the paddock and in full view of Whiskey. Shortly thereafter, defendant contacted her nephew, David Edwards, and asked that he assist her in burying Topper. Edwards, utilizing a skid steer equipped with a backhoe, thereafter began digging Topper’s grave inside the paddock — where Whiskey still remained. During all of this, Whiskey was observed pacing back and forth, whinnying and searching for Topper.

Although the parties debate precisely what transpired next, defendant has assumed — for purposes of the underlying motions — that plaintiffs version of the ensuing events is true. In this regard, plaintiff — who lived next door — testified at his examination before trial that upon arriving home from work, he heard the sound of digging and walked over to defendant’s property to see what was going on. Upon learning of Topper’s passing and viewing the limited progress made by Edwards with the skid steer, plaintiff climbed aboard and finished digging the grave. As plaintiff prepared to inter Topper, Whiskey was “[flrantically pacing” in the paddock, prompting defendant to [1274]*1274leave the area in search of a lead line.1 While defendant was gone, plaintiff crouched down next to Topper and began petting him. This gesture seemed to calm Whiskey, who approached and rested her chin on plaintiffs left shoulder. As plaintiff reached up with his left hand and grasped Whiskey’s halter, defendant approached, reached across both of them with the lead line in hand and spooked Whiskey, who pulled her head back. In the process, the middle finger of plaintiffs left hand caught in one of the metal rings on the halter, resulting in a significant injury that required surgical intervention.

Plaintiff thereafter commenced this action against defendant setting forth causes of action sounding in negligence and strict liability. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion and cross-moved for summary judgment. Supreme Court thereafter granted defendant’s motion and denied plaintiffs cross motion, prompting this appeal.

We affirm. Preliminarily, Supreme Court properly dismissed plaintiffs negligence claim as New York no longer “recognize[s] a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” (Curbelo v Walker, 81 AD3d 772, 774 [2011]; see Vichot v Day, 80 AD3d 851, 852 [2011]).2 Although this Court recently expressed its discomfort with this rule (see Hastings v Sauve, 94 AD3d 1171,1173 [2012]) and defendant’s conduct on the day in question indeed may have evidenced some negligence on her part (see n 5, infra), the Court of Appeals has made its position clear (see Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444, 446-447 [2004]); therefore, we are constrained to view this matter solely in the context of strict liability.

In this regard, “[i]t has long been the rule that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” (Seybolt v Wheeler, 42 AD3d 643, 644 [2007] [internal quotation marks and citations omitted]; accord Barone v Phillips, 83 AD3d 1523, 1523-1524 [2011]; see Petrone v Fernandez, 12 NY3d at 550). The term “vicious propensities,” in turn, includes “the [1275]*1275propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Collier v Zambito, 1 NY3d at 446 [internal quotation marks and citation omitted]; accord Alia v Fiorina, 39 AD3d 1068, 1069 [2007]). To that end, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit” (Collier v Zambito, 1 NY3d at 447; accord Krieger v Cogar, 83 AD3d 1552, 1553 [2011]; Barone v Phillips, 83 AD3d at 1524). The case law makes clear, however, that behavior that is normal or typical for the particular type of animal in question is insufficient to establish a vicious propensity (see Illian v Butler, 66 AD3d 1312, 1314 [2009]; Earl v Piowaty, 42 AD3d 865, 866 [2007]; Seybolt v Wheeler, 42 AD3d at 645; Campo v Holland, 32 AD3d 630, 631 [2006]), and an animal’s “rambunctious behavior would show awareness of a vicious propensity only if it [was] the very behavior that resulted in [the] plaintiffs injury” (Campo v Holland, 32 AD3d at 631; accord Earl v Piowaty, 42 AD3d at 866; Seybolt v Wheeler, 42 AD3d at 644).

Here, regardless of whether Whiskey’s demeanor on the day in question was the result of being separated from Topper or, rather, having witnessed firsthand his demise and the ensuing preparations for his burial, there is no dispute that she was nervous and agitated both prior to and following plaintiffs arrival, as evidenced by her whinnying and pacing inside the paddock.3 There is nothing in the record to suggest, however, that Whiskey’s whinnying and pacing constituted atypical equine behavior and, more to the point, it is clear that this behavior was not the cause of plaintiff’s injury. Similarly, even if Whiskey’s overall behavior that day could be characterized as rambunctious,4 again, her generalized anxiety was not “the very behavior that resulted in plaintiffs injury” (Campo v Holland, 32 AD3d at 631; see Barone v Phillips, 83 AD3d at 1524).

Nor are we persuaded that Whiskey’s history of avoiding a lead line rises to the level of a vicious propensity. To be sure, the record makes clear that Whiskey did not like being attached [1276]*1276to a lead line, that defendant often had to hide the lead line in the sleeve of her jacket in order to successfully attach the line to Whiskey’s halter and that, if Whiskey saw the lead line coming, she would turn and walk away.5 Noticeably absent from the record, however, is any indication that Whiskey’s avoidance of the lead line — either in general or in the particular manner in which she eluded it that day — was “abnormal to [her] class, another necessary characteristic of vicious behavior for the purpose of establishing liability” (Krieger v Cogar,

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Cite This Page — Counsel Stack

Bluebook (online)
94 A.D.3d 1273, 942 N.Y.S.2d 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloomer-v-shauger-nyappdiv-2012.