Posted On: April 16, 2012 by Mark A. Eskenazi

Domestic Animals: Horsing Around Doesn’t Pay

New York Appellate Division, Third Department: Bloomer v. Shauger

The Third Department revisits injuries caused by domestic animals in the sad tale of loss between lifelong equine pals.

Briefly, the two steeds in question were Whiskey and Topper, paddock pals for more than two decades. Topper fell ill in the winter of 2008. Whiskey had generally been an anxious horse, but even more so when Topper was put down in front of her. Then, when a back hoe was brought in to dig a grave for Topper, also in front of Whiskey, her agitation increased along with her pacing and whinnying.

Defendant’s neighbor, the plaintiff, heard the sound of digging next door and came to lend a hand preparing the grave site. Whiskey was frantically pacing when Topper was about to be interred, so plaintiff began stroking Topper, which seemed to calm Whiskey, who approached and put his chin on plaintiff’s left shoulder. Plaintiff then grabbed Whiskey’s halter to hold her steady. Defendant approached with a lead line, which Whiskey had a history of avoiding whenever possible, and tried to attach it by reaching across Whiskey’s face. At that point, Whiskey spooked and reared back. “In the process, the middle finger of plaintiff’s left hand caught in one of the metal rings on the halter, resulting in a significant injury that required surgical intervention.”

Could plaintiff hold defendant responsible? Not according to the trial court, which granted summary judgment. And not according to the Third Department, which affirmed.

New York no longer ‘recognize[s] a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.'” Even if there was some negligence on the part of the defendant, who may have spooked Whiskey, the Court of Appeals has made its position clear—such negligence is not actionable; what is actionable when it comes to domestic animals, is strict liability, and then only when the owner “either knows or should have known of the animal’s vicious propensities.”

Normal horse behavior, even normal anxious-horse behavior, is not enough to meet that threshold. A known vicious propensity must be the very behavior that causes the injury, not normal horsing around. Accordingly, the order dismissing the case was affirmed.

Trying to make some horse sense out of all this, the dissent had this to say: “New York is apparently ‘the only state in the nation that rejects the rule set forth in the Restatement [Second] of Torts’ regarding an owner’s negligence as a ground for liability arising from the dangerous acts of animals [citations omitted]. As we are thus applying an extremely restrict rule, we should not do so in an extremely restrictive manner.”

The rule as applied has seriously reigned in cases against owners of domestic animals, whether the animal is a horse or a cow. Maybe George Orwell's famous Animal Farm line is an appropriate epitaph for this sort of action in the Empire State: “Four legs good. Two legs bad.

And no leg to stand on for this plaintiff.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)