In Petrone v. Fernandez , Melanie Petrone -- a mail carrier -- was working her route when she observed a rottweiller named "Kai" positioned on Fernandez's lawn only feet away from her.
Since the animal was unleashed, Petrone retreated. When she noticed Kai was starting to chase her, Petrone also began to run, jumping through the window of her vehicle and injuring her finger.
James McCloy, Kai's custodian, alleged the dog was asleep on the front lawn, that Petrone ran away from the house yelling and screaming, but the animal remained on the lawn the entire time.
McCloy also claimed Kai couldn't pursue Petrone because the animal suffered from a severe arthritic condition, and, both Fernandez and McCloy testified Kai never "exhibited vicious propensities."
When Petrone filed suit against the two men for negligence in "failing to guard [Petrone] from the dog's known vicious propensities" and for violating the New York City leash laws, the Queens County Supreme Court dismissed the case.
On appeal, the Appellate Division, Second Department, modified the outcome.
After reviewing the Court of Appeals' decision in Bard v. Jankhe -- which established strict liability "for harm caused by an animal, where it is established that the owner knew or should have known of the animal's vicious propensities and harm is caused as a result of those propensities" -- the AD2 used Petrone's case as a platform to highlight an appellate discord which now exists in New York.
While the First and Second Departments have recognized "common-law liability independent of an animal's vicious propensities," the Third and Fourth Departments "generally have not ... absent evidence of the animal's vicious propensities."
Since Bard v. Jankhe wasn't a leash-law case but a dispute dealing with a "bull in a barn of a dairy farm," the AD2 didn't believe the Cout of Appeals addressed the "question of whether negligence involving the violation of a leash law can result in liability when an unleashed dog engages in a chase that proximately causes injury."
Relying on its own precedent, which recognized dog owners' liability for leash law violations, the AD2 concluded the Supreme Court erred in dismissing the case against McCloy since questions of fact remained as to Kai's behavior on the afternoon in question. (The AD2 agreed Fernandez sufficiently established he wasn't Kai's owner, he wasn't home at the time Petrone was injured, and owed no duty to Petrone.)
Will the Court of Appeals muzzle this case?
To download a copy of the Appellate Division's decision, please use this link: Petrone v. Fernandez