Special thanks to Jonathan Schopf, Animal Law Attorney, Albany, NY

1. "Animals and Negligence" - What
every attorney should know.
Jonathan G. Schopf, Esq.
21 Everett Road Extension
Albany, New York 12205
518 489-1098 x 13
www.theanimalattorney.com
www.theanimalattorney.blogspot.com
www.vincelettelaw.com

2. Types of Negligence Cases
• Vet Malpractice
• Property Damage
• Premises Liability
• Automobile Accidents
• Bites (most common)
• Negligent Supervision
• Failure to Warn
• Falls from Horses (second most common)
• Kicks

3. Elements of Negligence
• Duty
• Breach of Duty
• Proximate Cause between injury and action
• Damages

4. Vicious or Dangerous Propensities
• In New York a cause of action exists in strict
liability, with no proof of negligence required on part of
the plaintiff, where a person keeps (harbors) an animal
with notice of the animal’s vicious propensities and
such animal injures a plaintiff.
• This liability is imposed regardless or ownership.
• The plaintiff is required to present proof that the
defendant had knowledge of the vicious propensity or
that a reasonable person would have discovered it –
Palumbo v. Nikirk, 59 AD3d 691 (2nd Dep’t 2009).

5. Allegations
• A complaint should allege:
– Facts;
– Statement that the defendant knowingly harbored the
animal;
– Statement that the defendant had knowledge of the
propensities;
– Statement that the defendant should have had knowledge of
the propensities;
– Statement that the animal injured the plaintiff;
– Statement that the plaintiff was lawfully on the defendant’s
property, in a public place or lawfully on other property;
– Statement that the injury rendered the plaintiff
sick, sore, lame, etc..
– Spousal or other derivative claim.

6. Affirmative Defenses
• An affirmative defense can be asserted which states that
the defendant was not keeping or harboring the animal.
• An affirmative defense can be raised that the animal was
being tormented, teased or abused – Leiner v. Fist Wythe
Ave. Service Station, 121 Misc. 2d 559 (NYC City Ct.
1983), affirmed, 127 Misc. 2d 794.
• An affirmative defense can be raised that the plaintiff
himself had knowledge of the animal’s propensities and
brought the injury upon himself – Seiden v. A. Silmac Glass
Co., 251 AD2d 141 (1st Dep’t 1998).
• Express and implied assumption of the risk should be
raised. CPLR 1411 and 3018(b).

7. Summary Judgment – Owner’s lack of
knowledge
• Animal’s breed is not automatically determinative of viciousness – Rivers v. NYC
Housing Authority, 264 AD2d 342 (1st Dep’t 1999).
• Behavior which caused injury was not inherently vicious. Horse that was known to
be difficult to handle, for example – Timpanaro v. Topping Riding School, 575
NYS2d 933 (1991).
• Animal has never shown vicious propensities or the animal’s past behavior does
not amount to a vicious propensity (barking at neighbors)
• Natural reaction on part of animal is not a vicious propensity. Cat will bite when
grabbed by the scruff of the neck – Wignes v. Bottger, 518 NYS2d 936 (1987).
• Complaint was dismissed in action to recover for injuries sustained from dog bite
since bite alone, without provocation, and breed alone, was not sufficient to raise
question of fact as to vicious propensities; defendant and his girlfriend testified
that they did not experience any problems with dog prior to biting, and specifically
that dog did not display any act of aggression immediately prior., Malpezzi v.
Ryan, 28 AD3d 1036 (3rd Dep’t 2006).
• Whether or not the owner knew of the animal’s propensities should be viewed
and presented as an issue of fact (especially if you have the plaintiff).

8. Direct contact with animal not
necessary for liability to attach
• Example: Vicious dog is chasing a person who
runs into a road to avoid the dog and is struck
by a car.
• Polard v. United Parcel Service, 302 AD2d 884.

9. Can you / should you plead
negligence?
• There is a split between the departments as to
whether a plaintiff can recover for ordinary
negligence .
• First and Second Departments permit recovery.
Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t
2000) and Colarusso v Dunne, 286 AD2d 37 (2nd
Dep’t 2001)
• Third and Fourth do not.
• Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003)
describes these differences.

10. • Courts have held that in limited circumstances a theory of
recovery for ordinary negligence may permit recovery.
• Must be a distinct act that the defendant should have done
or not done or a special enhanced duty of care.
• For competing views of claims for injuries caused by
agricultural animals compare St. Germain v. Dutchess
County Agriculture Society, 274 AD2d 146 (2nd Dep’t 2000)
and Bard v. Jahnke, 16 AD3d 896 93rd (3rd Dep’t 2005).
• Colarusso v. Dunne, 286 AD2d 37 (2001). Child bitten by
75lb dog which was permitted to freely wander around
owner’s daycare facility. Issue of fact existed as to whether
infant’s actions and dog’s response were foreseeable.
• Note, a child under 4 years old is incapable of being
responsible for his or her own actions, as a matter of law,
and the jury may be so instructed. Smith v. Sapienza, 115
AD2d 723 (2nd Dep’t 1985).

11. “Beware of Dog” Signs
• Beware of Dog signs without more, or a prior
determination, does not establish a propensity for
dangerousness, especially in the Third Dept., Shaw v.
Burgess, 303 AD2d 857 (3rd Dep’t 2003) and Smedley v.
Ellinwood, 21 AD3d 676 (3rd Dep’t 2005).
• Jury may consider the sign, but it is not sufficient by
itself to create a propensity. The same applies for
animals that are chained or caged on a routine basis.

12. Premises / Landlord Liability
• Landlord who is aware of vicious propensities has a duty to protect
the public from the animal. Bates v. Constable, 4 Misc3d 810 (2004).
• A tenant who harbors a dangerous dog, even for security
purposes, will be held strictly liable to third persons for injuries, as
will a landlord who has leased the apartment with knowledge of
the propensities and does nothing to protect the public. Strunk v.
Zoltanski, 62 NY2d 572 (1984).
• If the landlord has no knowledge, actual or constructive, there is no
liability imposed. Meyers v. Haskins, 140 AD2d 923.
• Liability will not be imposed on the landlord where the attack
occurs off the rented premises. Terrio v. Daggett, 208 AD2d 1163.

13. Transfer of ownership
• No liability will attach to a prior owner for
injuries caused post-transfer IF the owner
informed the person of the animal’s
dangerous propensities.
• Hosmer v. Carney, 228 NY 73.

14. Every dog gets one bite theory
• Not in New York
• Perrotta v. Picciano, 186 AD 781 (1st Dep’t
1919) and its progeny.

15. Breed or type “discrimination”
• Evidence of the inherent propensities of one
particular breed of animal is
inadmissible, Bohm v. Nystrum, 208 AD2d 668
(dog).
• Landes v. H.E. Farms, Inc., 169 AD2d 446
(horse).
• Bard v. Jahnke (bull).

16. Farm Animal Negligence
• A case of negligence can be made and maintained
against the owner of a horse or cow which is
unsupervised or uncontrolled on a public
road, where the animal causes damage to or
collides with a person or vehicle. Johnson v.
Waugh, 244 AD2d 594 (3rd Dep’t 1997).
• Theory being that horses do not wander on
roadways absent negligence.
• Presumption is rebuttable if it is shown that the
animal’s wandering is not caused by the owner’s
negligence.

17. Wild Animals and Negligence
• Owner or keeper of a wild animal has an
absolute duty to prevent animal from injuring
persons or property.
• Exemptions exist for common carriers and
municipalities or society charged by the
legislature to maintain a zoo (does not apply
to a zoo run for profit).
• Reasonable care is the standard for these
exceptions.

18. Questions