No Remedy Found for Cyclist's Collision With Dog

A woman who called her dog across a road in Central Park just as a cyclist was approaching, causing the cyclist to collide with the dog, cannot be liable for the cyclist's injury because she did not know that her dog had a "propensity to interfere with traffic," a divided state appeals court has ruled.

The 4-1 Appellate Division, First Department, panel ruled on April 16 in Doerr v. Goldsmith, 103840/10, that no remedy was available to the cyclist because New York precedent only holds owners liable for injuries caused by their pets if they knew or should have known about their "vicious propensities."

Justices Richard Andrias (See Profile), Leland DeGrasse (See Profile), Rosalyn Richter (See Profile) and Darcel Clark (See Profile) joined the majority opinion.

Justice Angela Mazzarelli (See Profile), on the other hand, said in a dissent that the collision was not caused by any propensity of the dog, but by the owner's command, which the dog was merely obeying.

The incident occurred on May 31, 2009. The cyclist, Wolfgang Doerr, was riding on Central Park's loop road. He alleges he saw a man, Daniel Goldsmith, holding a dog on the right side of the road while Goldsmith's girlfriend, Julie Smith, gestured at the dog from the left side of the road, apparently calling the dog. Doerr says that he shouted as he approached, "Watch your dog!"

However, Goldsmith released the dog, who went across the road to Smith. Doerr was unable to prevent himself from hitting the dog and being propelled off the bicycle. He sued Smith and Goldsmith, alleging that their negligence caused his injury.

Smith moved for summary judgment, but Manhattan Supreme Court Justice Manuel Mendez (See Profile) denied the motion. Smith appealed.

The majority of the First Department panel reversed. It said that the only way a person could recover for injuries inflicted by a pet was under a strict liability theory, in cases where the owner knew or should have known of the pet's "vicious propensity."

This principle was first set forth in the Court of Appeals' 2004 decision in Collier v. Zambito, 1 NY3d 444, where it held that the owners of a dog that attacked a 12-year-old house guest could not be liable because they had never had any indication that the dog was prone to attack.

The Court of Appeals further solidified the principle in 2006 in Bard v. Jahnke, 6 NY3d 592, where it ruled that there could be no negligence claim against the owner of a free-roaming bull who charged a carpenter working on a dairy barn, and in its 2009 decision in Petrone v. Fernandez, 12 NY3d 546, where it similarly rejected a negligence claim brought by a mail carrier who was chased by an unleashed Rottweiler.

The majority wrote that, even if Smith had been negligent, "defendant's alleged negligence in calling the dog does not provide a basis to depart from the strict liability rule recognized by the Court of Appeals" because "there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic."

Mazzarelli, in her dissent, said that the case was different from the Court of Appeals precedents cited by the majority.

"The common denominator in each of the cited cases is that the plaintiff was injured because an animal did what nature permits it to do in the absence of its owner's control," she wrote. "Here, conversely, the dog was in the control of defendants at all times in the split second before the collision occurred. Had Smith not called the dog, and Goldsmith not let it go, plaintiff would have ridden past them without incident."

She continued, "Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants' actions, and not the dog's own instinctive, volitional behavior, that caused the collision."

The dog, Mazzarelli said, was akin to a ball being tossed back and forth across the road.

"If the cyclist collided with the ball and was injured, certainly we would not find that no negligence claim was available," she said. "However, the majority's application of the Bard/Petrone rule to the facts of this case suggests that the law is in danger of evolving to the point where, simply because an animal is the immediate instrument of harm to a plaintiff, no claim for negligence lies against its owner."

Mazzarelli said that, carried to its logical conclusion, the majority's reasoning would not hold a person liable for knocking a cat off a windowsill and onto a passerby. "Surely the Court of Appeals did not intend to bar a negligence claim against the owner under those circumstances."

Gregory Bagen, a Brewster attorney who represents Doerr, said he would seek leave to appeal. He said he was optimistic that the Court of Appeals would take the case and reverse.

"It needs to go up and they need to modernize our law, and I think they might be inclined to do it," he said.