Are you ready for a decision that reads like an unbelievable children's story?
On September 27, 2001, Larry Bard, a self-employed carpenter, had an encounter with a hornless dairy bull named "Fred." At about 9:00 AM, while on his knees removing bolts fastened to the concrete bed of a stall at Hemlock Valley Farms in Otsego County, Bard was surprised by Fred's sudden appearance and "beller." As Bard rose from the floor, Fred--who was positioned only a few feet away--charged and slammed Bard into some pipes. Eventually, Bard was able to escape, but not before incurring fractured ribs, a lacerated liver, and the worsening of a preexisting cervical spine condition.
Claiming entitlement to compensation for his injuries based on theories of strict liability and negligence, Bard and his wife later sued Hemlock Farms in the Otsego County Supreme Court. After motion practice, the Supreme Court found that Bard had not stated a basis for relief and dismissed the case. On appeal, the Appellate Division, Third Department, felt it was "compelled" to agree with the outcome and affirmed the dismissal.
Since New York law defines a bull as a "domestic animal," an owner is not "strictly liable" for injuries caused by such a creature unless the owner knew or should have known of its "vicious and violent propensities"--elements that could not be satisfied here since Fred reportedly never injured another person or animal nor behaved in a hostile or threatening manner prior to the incident with Bard. While Bard's evidence consisted of an expert's affidavit which concluded that bulls are "generally dangerous and vicious animals," the Appellate Division found the affidavit "insufficient to raise a question of fact" or, in other words, not strong enough to allow Bard's case to proceed.
The Appellate Division refused to recognize particular types or breeds of domestic animals as more "dangerous" than others. In this regard, the court noted:
As this Court has consistently, and recently, reiterated, the particular type or breed of domestic animal "alone is insufficient to raise a question of fact as to vicious propensities"...In other words, "there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal"...Thus here, the professor's affidavit attesting to the alleged viciousness of breeding bulls in general was insufficient to raise a question of fact...Accordingly, summary judgment was properly granted to defendants.
On May 2, 2006, the New York State Court of Appeals affirmed the Appellate Division's order, and went a step further. In its decision the court opted to foreclose an injured party's ability to bring a common-law negligence claim against the owner of a domestic animal. Notwithstanding the fact that some twenty U.S. states follow the "Restatement (Second) of Torts," which provides that an owner may still be found guilty of ordinary negligence, even in the absence of vicious propensity, when the owner "intentionally causes the animal to do harm, or is negligent in failing to prevent harm," the state's highest court declined to follow that rule.
In a strongly worded dissent, Judge Robert S. Smith objected to the unfairness of the standard which the court was espousing. The dissenter observed as follows:
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...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 [Fred's owner] is accused of here, or we could invent a "mother dog" exception or a "fresh blood" exception 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.
While the dissenter raises some interesting points, it remains the law of this state that in the absence of proof as to an animal's "vicious propensity," a negligence case may not be maintained. And that, my friends, is no bull.
For a copy of the Court of Appeals's decision in Bard v. Jahnke, please click on the following link:
For a copy of the Appellate Division's decision in Bard, please click on the following link: