WHAT DID THE DOG-SITTER KNOW?After she was bitten by a dog which was in Patricia’s custody, care, and control, Laura C. filed suit in the Monroe County Supreme Court seeking compensation for her injuries. Laura alleged that Patricia was "strictly liable" for what occurred (even though she wasn’t the “owner” of the animal), given the latter’s “specialized knowledge of dogs and substantial control over her home, where the incident took place.”
While it has long been New York State law that liability for an attack will not attach unless the animal’s custodian has knowledge of the creature’s “vicious propensities,” in 2020, our state’s highest court ruled in Hewitt v Palmer Veterinary Clinic, P.C. (35 NY3d 541 ), that given their “specialized knowledge,” when people and their furry companions are visiting veterinarians or veterinary clinics those parties can be held to a higher standard of care, because they are “uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.”
Because that decision came down while Laura’s case was pending, she sought to amend her complaint to comport with the theories asserted in Hewitt. But a Monroe County justice denied that request. And, on appeal, the Appellate Division, Fourth Department, agreed with that denial noting, in part, as follows:
“Here, plaintiff's proposed negligence cause of action against [Patricia] does not allege that [Patricia] had knowledge of the dog's vicious propensities; instead, it alleges that [Patricia] was negligent because she did not ‘investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe.’ The proposed complaint therefore fails to state a viable negligence cause of action against [Patricia].”
And given that she wasn’t a veterinarian, the AD4 concluded that Hewitt didn’t apply to this case, as Patricia lacked a vet’s “knowledge and expertise,” and her home was “not analogous to a veterinary clinic.”
That must have dogged them all.
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