May 2013 Animal Law Update

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Court of Appeals partially overrules Bard v Jahnke and finds that negligence is a valid cause of action when a farm animal wanders into the roadway.

In Hastings v Sauve, 2013 NY Slip Op 03120 [May 2, 2013], Karen Hastings was injured when the van she was driving hit a cow on a public roadway.  The cow had been living on property owned by Sauve.  The fence designed to keep the animal within Sauve’s borders was poorly maintained and permitted it to escape into the road.  Hastings brought this personal injury action against the property owner and the Supreme Court granted a summary judgment motion by Sauve.  The Appellate Division affirmed and granted summary judgment to the defendant under a strict liability theory.

Until this case, Hastings would have had to show that this cow had the propensity to wander into the roadway to recover under a theory of strict liability. Bard v Jahnke (6 NY3d 592 [2006]).  In Bard, the Court of Appeals held that injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence.  The Appellate Division expressed its “discomfort with this result” and permitted the plaintiffs leave to appeal to the Court of Appeals.

In Bard, the Court of Appeals denied recovery to a plaintiff who was attacked by a bull while working in a barn.  In that case, the court found that the bull “had never attacked any farm animal or human being before.”  The court held that “vicious propensities” meant any behavior that “reflects a proclivity to act in a way that puts others at risk of harm.”  The court went on to find that in past precedential cases which upheld Bard, all involved aggressive or threatening behavior by an animal.  However, the claim here is different from the claim in Bard because here a farm animal was simply permitted to wander off the property where it was kept through the negligence of the owner of the property, no aggressive behavior is involved.  The Court of Appeals was concerned that allowing the rule in Bard to continue could immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

So the court went on to hold “that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept.”  The court went out of its way to state that this holding does not address whether the same rule applies to dogs, cats or other household pets.  To read the full opinion please click here.