When good dogs go bad

A creepy abundance of decisions from the last Fourth Department packet involving domestic animals turning on their human minders and inflicting all manner of injury and mayhem.  Like the dog who invaded the next yard over and chased his neighbor into his house, causing the neighbor to trip "over the threshold of his front door and injure his knee." (Barone v Phillips, 2011 NY Slip Op 03395 [4th Dept 2011].)  Or the dog who ran into the road and caused a motorcycle accident.  (Rockwood v Labate, 2011 NY Slip Op 03406 [4th Dept 2011].)  Or the dog who "ran into the road and collided with plaintiff's bicycle, causing plaintiff to be propelled over the handlebars."  (Smith v Reilly, 2011 NY Slip Op 03357 [4th Dept 2011].)

And its not just dogs.  Even baby horses are up to no good these days.  (Krieger v Cogar, 2011 NY Slip Op 03433 [4th Dept 2011] [six-day old colt knocked a woman to the ground].)

So when is an owner liable for the wanton destruction caused by Fido?  The rule is the same no matter the type of domestic animal, and hinges on what the animal owner knew or should have known about his animal's ability and inclination to get up to mischief.  "It is well settled that 'the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.'"  (Barone, 2011 NY Slip Op 03395.)  The term "vicious propensities" does not really have its plain meaning under the case law--your dog does not have to be the second coming of Cujo for liability to attach.  "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities--albeit only when such proclivity results in the injury giving rise to the lawsuit."  (Id. at *1.)

So:  the owner of the dog with a history of charging the road is potentially liable for causing an accident.  (Smith, 2011 NY Slip Op 03357.)  No liability attaches to the owner of a dog who is usually kept securely fenced, and pulled a Houdini for the first time on the day of the accident.  (Rockwood, 2011 NY Slip Op 03406.)  And the owner of the dog who charged his neighbor and causing him to bravely flee into his own home is not liable where the record contained "no evidence suggesting that the dog had a propensity to run at people."  (Barone, 2011 NY Slip Op 03395, although Justice Gorski dissented and would have found the dog's history of playfully jumping on people established enough of a propensity to survive summary judgment.)

The same rule extends to horses, who are considered "domestic animals" under the Agriculture and Markets Law, and that's good enough for the Fourth Department.  A six-day-old colt that exhibits normal "avoidance" behavior while being halter trained--described clinically (but still sort-of-heart-breakingly) by the Court as a newborn colt's tendency "to avoid human contact and seek the protection of his mother"--does not have vicious propensities that would expose his owner to liability.  (Krieger, 2011 NY Slip Op 03433.)