Was Owner Liable For Injury Caused by Walker Unleashing Canines
On June 23, 2021, Mathew Still sued Paws & Rec., Inc for damages for personal injury. The verified complaint contained three causes of action. The first was for negligence, the second was for negligent hiring and supervision, and the third was denominated as “respondent superior.”
The verified complaint as amplified by the bill of particulars alleged the following salient facts. On March 22, 2021, at approximately 1:00 p.m., Still was inside a public park in the vicinity of Hicks Street and Amity Street, in Brooklyn, New York. On the same date, and at the same time and place, an employee of Paws was handling several dogs. The dog handler negligently unleashed the dogs, and the unleashed dogs aggressively ran wild and collided with Still causing him to sustain serious physical injuries.
Still moved for summary judgment on his complaint.
Summary judgment may be granted only when it is clear that no triable issue of fact exists The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material issues of fact .
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact.
A court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. And all of the evidence must be viewed in the light most favorable to the opponent of the motion.
Still sought an order granting summary judgment in his favor on the issue of liability and striking Paws’s affirmative defenses. The notice of motion and affirmation in support did not specify whether summary judgment was sought on all or some of the causes of action asserted. Furthermore, contrary to the requirements of law, Still offered no law, facts, or argument in support of the branch of the motion seeking to strike Paws’ affirmative defenses. By his failure to specifically explain what he was seeking the motion could be denied on that basis alone.
The second cause of action was for negligent hiring and supervision of the dog handler. The third cause of action was denominated as “respondent superior” — a theory of liability and not a cause of action. Generally, where an employee is acting negligently within the scope of his or her employment, the employer may be liable under the theory of respondeat superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training. Here, the verified complaint alleged that the dog handler was acting within the scope of the dog handler’s employment with Paws. Such an allegation was a judicial admission which was conclusive of the fact asserted. If Still was seeking summary judgment on the entire complaint, those facts alone would require denial of the motion.
Assuming, for the sake of argument, that Still was seeking summary judgment on the first cause of action based on negligence, the following would apply.
There was no dispute that Paws was in the business of dog walking and daycare. Still’s deposition testimony established that, on March 22, 2021, at around 1:00 p.m., he was walking his dog in a dog park located in the vicinity of Hicks Street and Amity Street, in Brooklyn, New York. Still unleashed his dog and noticed that an individual that he knew as Stan was handling three dogs. Stan was in the same park and unleashed the three dogs. Thereafter, the unleashed dogs began to go wild running and biting each other. At some point, the unleashed dogs ran at full speed in Still’s direction and collided with his leg injuring him.
Still contended that ordinary negligence principles applied in accordance with a the Court of Appeals decision that addressed an action in which a woman was injured by a dog while she was in the waiting room of the defendant veterinary clinic. The Court of Appeals held that the vicious propensities notice requirement, typically applicable in an action to recover for injury caused by a domestic animal, did not apply to the veterinary clinic inasmuch as that clinic’s agents had specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. So the Court of Appeals applied negligence principles, explaining that veterinarians or other agents of such a practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Due to their specialized knowledge, the Court of Appeals concluded, veterinary clinics were 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
Still contended that the veterinary exception to the vicious propensities notice requirement applied because Paws had specialized knowledge in the handling of dogs. The vicious propensity doctrine, which provides for strict liability against an owner of a domestic animal that causes harm, where the owner knows or should have known of the animal’s vicious propensities, has been the law in New York since at least the year 1816. The term “vicious propensity” has become a term of art, having expanded from its ordinary definition to “include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation”.
A threshold issue then was whether Still established by evidence in admissible form that the strict liability standard applied or general negligence principles applied. If the strict liability standard applied, for Still to prevail, he would have to establish that the dog handler or Paws had knowledge of the dogs’ vicious propensities. That would call into question precisely what wass the vicious propensity that Paws was aware of. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.
Still did not present sufficient evidence to establish that the strict liability standard was not applicable. If Paws’ conduct was governed by strict liability principles, there was no dispute that Still presented no evidence that Paws had notice of the dogs’ vicious propensities, whatever that might be. If ordinary negligence principles applied, Still did not eliminate all material issues of fact as to whether Paws breached a duty of care to Still which proximately caused his injury.
The motion by Still for an order granting summary judgment in his favor on the issue of liability against Paws and striking of Paws’ affirmative defenses was denied.