From the desk of John P. DePaolo
In New York State, an owner of a canine is entitled to assume that his or her dog will not injure anyone, unless the dog’s previous behavior gave evidence of vicious propensities. Pattern Jury Instruction 2:220 defines vicious propensity as “a natural inclination or usual habit to act in a way that endangers people or property”. Proof is also required that the canine owner knew or should have known of the vicious propensities. A canine owner is responsible for any injury on a strict liability basis, but only after the owner continues to harbor the canine with knowledge of vicious propensities.
The Law in New York is that a Court may not take judicial notice of the viciousness or ferocity of any particular breed. Additionally, the size of the animal is insufficient to establish that a particular animal has vicious propensities. Kennet v. Sossnitz, 260 A.D. 759 23 N.Y.S.2d 961, Aff’d, 286 N.Y.623 36 N.E.2d 459.
The application of the vicious propensity rule to farm animals, including livestock, is more problematic. Recently, in Hastings v. Sauve, the Court of Appeals distinguished the liability of an owner of a farm animal from cases involving household pets. A farm animal typically is not implicated in litigation after a bite. Most often horses and cattle are found on a roadway where a motor vehicle accident ensues. The trial court, in Hastings, ruled in favor of the defendant based upon lack of a showing that the farm animal in question had exhibited previous vicious propensities. Accordingly, an owner of a farm animal can be held responsible for issues of negligence in not properly securing their animal from a roadway or other area where liability might ensue. See Hastings, 21 N.Y.3d 122; 989 N.E.2d 940; 967 N.Y.S.2d 658 (March 21, 2013). The Hastings Decision, specifically focused on a domestic animal as that term is defined in Agriculture and Markets Law § 108(7). Thus, Hastings has no application with respect to household pets.
A concern for canine owners is often whether or not they would be covered if their animal causes an injury. Some insurers have canceled insurance or added a canine exclusion after an individual’s canine is involved in an injury. Owners of canines that have never previously exhibited a natural inclination or usual habit to act in a way that endangers people or property should enjoy coverage without exception.