This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 17 

Wolfgang Doerr,

 Respondent,

 v.

Daniel Goldsmith,

 Defendant,

Julie Smith,

 Appellant.

---------------------------

No. 66 

Cheryl Dobinski,

 Appellant,

 v.

George O. Lockhart, et al.,

 Respondents.

Case No. 17:

Scott T. Horn, for appellant.

Dara Warren, for respondent.

Case No. 66:

Dennis J. Bischof, for appellant.

Mark P. Della Posta, for respondents.

MEMORANDUM:

In Doerr v Goldsmith, the order of the Appellate

Division should be reversed, with costs, defendant Smith's motion

for summary judgment dismissing the complaint granted and the

certified question answered in the negative. In Dobinski v

Lockhart, the order of the Appellate Division should be affirmed,

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- 2 - Nos. 17 & 66

with costs.

Under the circumstances of these cases and in light of

the arguments advanced by the parties, Bard v Jahnke (6 NY3d 592

[2006]) constrains us to reject plaintiffs' negligence causes of

action against defendants arising from injuries caused by

defendants' dogs (see Bard, 6 NY3d at 596-599; see also Bloomer v

Schauger, 21 NY3d 917, 918 [2013]; Smith v Reilly, 17 NY3d 895,

896 [2011], revg 83 AD3d 1492 [4th Dept 2011]; Petrone v

Fernandez, 12 NY3d 546, 547-555 [2009]; Collier v Zambito, 1 NY

3d 444, 446 [2004]). We decline to overrule our recently

reaffirmed precedent (see Bloomer, 21 NY3d at 918; Petrone, 12

NY3d at 547-555). Furthermore, our holding in Hastings v Sauve

(21 NY3d 122 [2013]) does not allow plaintiffs to recover based

on defendants' purported negligence in the handling of their

dogs, which were not domestic farm animals subject to an owner's

duty to prevent such animals from wandering unsupervised off the

farm (see Hastings, 21 NY3d at 124-126). 

Finally, in Dobinski, the Appellate Division properly

granted summary judgment to defendants with respect to

plaintiff's strict liability cause of action. Defendants carried

their initial burden on summary judgment of establishing that

they did not know of any vicious propensities on the part of

their dogs. In response, plaintiff failed to demonstrate the

existence of a triable issue of fact as to whether defendants had

notice of the animals' harmful proclivities, and consequently,

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- 3 - Nos. 17 & 66

defendants were entitled to summary judgment on plaintiff's

strict liability claim (see Petrone, 12 NY3d at 550; see

generally Jacobsen v New York City Health and Hospitals Corp., 22

NY3d 824, 833 [2014]).

- 3 -
Wolfgang Doerr v Daniel Goldsmith and Julie Smith

No. 17 

Cheryl Dobinski v George O. Lockhart and Milagros Lockhart

No. 66

ABDUS-SALAAM, J. (concurring):

In these two cases, we consider whether an individual

injured by a domestic animal other than a farm animal may

institute a negligence cause of action against the owner of the

animal based on the owner's alleged misfeasance in supervising or

directing the animal. Like the majority (see majority op. at 2),

I conclude that a negligence cause of action does not lie under

- 1 -
- 2 - Nos. 17 & 66

our longstanding precedent, and I reject the specific grounds

advanced by plaintiffs here for declining to apply the

controlling principles of law set forth in Bard v Jahnke (6 NY3d

592 [2006]). Therefore, I join the majority's opinion in full. 

I write separately to provide additional background on these

cases, suggest further guidance for future cases, and respond to

the particular contentions of the plaintiffs and my dissenting

colleagues. 

I

Doerr v Goldsmith

At about 7:00 a.m. on May 31, 2009, defendant Julie

Smith and her boyfriend, defendant Daniel Goldsmith, were

accompanied by Smith's dog in Manhattan's Central Park. The

couple did not keep the dog on a leash, acting consistently with

local regulations that permit a dog to remain off-leash in

certain designated areas of the park from 9:00 p.m. to 9:00 a.m.

(see New York City Department of Parks and Recreation Rules and

Regulations § 1-04 [i] [2]). Smith, Goldsmith and the dog were

near a section of the bicycle "loop" road that runs throughout

Central Park. Specifically, Smith and Goldsmith were outside the

roadway on opposite sides of the road, and Goldsmith was kneeling

down and holding the dog in his arms, as if hugging it. 

Meanwhile, plaintiff Wolfgang Doerr was riding his

bicycle on the loop. As Doerr approached Smith and Goldsmith's

location, Smith bent down and clapped her hands on her knees, and

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- 3 - Nos. 17 & 66

she allegedly called the dog over to her. Doerr called out for

Smith and Goldsmith to control the dog, but it was too late; as

the dog crossed the street, Doerr hit the dog and was thrown from

his bike, resulting in significant injuries. 

Doerr commenced this personal injury action in Supreme

Court by filing a complaint asserting a negligence cause of

action against Smith and Goldsmith based on their having

negligently "controlled and directed their dog into the path of

the plaintiff." Doerr did not set forth any strict liability

cause of action or allege that the dog had a vicious propensity. 

As pertinent to this appeal, Smith answered and demanded

discovery, including depositions. After discovery, Smith moved

for summary judgment dismissing the complaint, arguing that Doerr

could not bring a negligence cause of action based on injuries

caused by a domestic pet because such claims are barred by the

rule of Bard and Petrone v Fernandez (12 NY3d 546 [2009]). Doerr

opposed the motion on the ground that the Bard rule does not

apply where, as here, liability is premised on the conduct of the

owner in turning the animal into an instrumentality of harm. 

Supreme Court denied Smith's motion for summary judgment

dismissing the complaint, largely adopting Doerr's position. 

A divided panel of the Appellate Division reversed

Supreme Court's order, granted Smith's motion for summary

judgment dismissing the complaint and directed the clerk to enter

judgment accordingly (see Doerr v Goldsmith, 105 AD3d 534-535

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- 4 - Nos. 17 & 66

[1st Dept 2013]). The majority determined that, because "New

York does not recognize a common-law negligence cause of action

to recover damages for injuries caused by a domestic animal,"

Doerr could not sue Smith for her allegedly negligent handling of

her dog (id. at 534 [internal quotation marks and citation

omitted]). One Justice dissented on the theory that Smith could

be held liable for her negligent instruction to the dog, as

distinct from the dog's own willful actions (see id. at 535-537

[Mazzarelli, J., dissenting]). 

After the Appellate Division's decision in Doerr, we

handed down our decision in Hastings v Sauve (21 NY3d 122

[2013]), wherein we held "that the rule of Bard v Jahnke does not

bar a suit for negligence when a farm animal has been allowed to

stray from the property where it is kept" (Hastings, 21 NY3d at

124 [internal citation omitted]). Doerr moved for reargument of

his appeal in the Appellate Division or, in the alternative, for

leave to appeal to this Court.

The Appellate Division issued an order granting the

reargument motion, vacated and recalled its prior decision,

substituted a new decision, and denied plaintiff's motion for

leave to appeal. On the same day it granted the reargument

motion, the Appellate Division issued its new decision and order,

which, by a split vote, affirmed Supreme Court's order and denied

Smith's motion for summary judgment dismissing the complaint (see

Doerr v Goldsmith, 110 AD3d 452, 452-455 [1st Dept 2013]). The

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- 5 - Nos. 17 & 66

majority recounted the Bard rule, and it cited favorably the Bard

dissent's position that the rule is archaic and leads to unfair

results (see id. at 452-454). The majority decided that this

Court had recently ameliorated the harshness of the Bard rule in

Hastings, which "recognized that an accident caused by an

animal's 'aggressive or threatening behavior' is 'fundamentally

distinct' from one caused by an animal owner's negligence in

permitting the animal from [sic] wandering off the property where

it was kept" (id. at 454, quoting Hastings, 21 NY3d at 125). The

majority continued:

"We recognize that the Hastings Court did not

decide whether to apply the holding to dogs

at that time. However, that should not be an

impediment to denying summary judgment in

this case. That is because this case is of

an entirely different ilk than Hastings, Bard

and Petrone. It is not about the particular

actions of an animal that led to a person's

injury. Rather, it is about the actions of a

person that turned an animal into an

instrumentality of harm. Here, the dog was

in the control of defendants at all times in

the split second before the accident

occurred. Had Smith not called the dog, and

Goldsmith not let it go, plaintiff would have

ridden past them without incident. [Smith's

and Goldsmith's] actions can be likened to

those of two people who decide to toss a ball

back and forth over a trafficked road without

regard to a bicyclist who is about to ride

into the ball's path. If the cyclist

collided with the ball and was injured,

certainly the people tossing the ball would

be liable in negligence." (id. at 455).

Two Justices dissented, voting to reverse Supreme

Court's order and grant Smith's summary judgment motion (see id.

at 455-456 [Andrias, J., dissenting]). The dissent maintained

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- 6 - Nos. 17 & 66

that, in its previous decision in this case, the court had not

overlooked any material fact or principle of law that would

warrant vacatur of the prior decision and order (see id. at 455). 

The dissent distinguished Hastings on the ground this Court had

expressly limited its holding in that case to farm animals and

left open the question of its application to domestic pets (see

id. at 455-456). The dissent maintained that it would be

inappropriate to extend Hastings's holding to this case absent

further guidance from this Court (see id. at 456). 

Smith moved the Appellate Division for leave to appeal

to this Court from that court's order denying her summary

judgment motion, and the Appellate Division granted the motion

and certified to us the question of whether its order was

properly made. 

Dobinski v Lockhart

On the morning of May 20, 2012, plaintiff Cheryl

Dobinski and her husband were riding their bicycles on the

shoulder of Route 98 in Franklinville. The Dobinskis reached an

area of the road that was about 60 feet from the farm of

defendants George and Milagros Lockhart. At approximately the

same time, Milagros Lockhart released her husband's two German

Shepherds from her house and onto the outdoor portion of the

property. The dogs barked at the Dobinskis and ran into the

road. About 10 seconds after the dogs were released, Cheryl

Dobinski struck one of them, which caused her to flip over the

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- 7 - Nos. 17 & 66

front of her bicycle and suffer severe injuries. 

Cheryl Dobinski initiated this personal injury suit in

Supreme Court by filing a complaint which, as amended, asserted

causes of action for negligence and for strict liability against

the Lockharts. Dobinski claimed that, because the Lockharts had

allowed their dogs to leave the farm and collide with her on the

road, the Lockharts had been negligent in their failure to

adequately supervise and restrain the dogs. Dobinski also argued

that the Lockharts were strictly liable for the injuries caused

by the dogs, as they had actual or constructive knowledge of the

dogs' harmful propensities, including the animals' purported

tendency to run onto the road. Dobinski further asserted that,

by failing to restrain the dogs on the property, the Lockharts

had negligently created and maintained a dangerous condition on

their premises and, eventually, on the roadway. The Lockharts

joined issue, and discovery commenced.

During discovery, Dobinski and her husband acknowledged

that they did not have any prior familiarity with the dogs or

their propensities. For their part, the Lockharts maintained

that they had never received any complaints about these specific

dogs or observed any vicious behavior from them. In fact, a

neighbor averred she had never heard of any complaints against

those two dogs or seen them interfere with traffic. The

Lockharts acknowledged that, on two occasions -- one before and

one after Dobinski's accident -- two of their other dogs had run

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- 8 - Nos. 17 & 66

into the road and been struck by a car. George Lockhart further

stated that he sometimes exercised the dogs involved in the

accident by having them chase his four-wheeler at a relatively

modest pace on his property, but never off the property. 

Additionally, while it was uncontested that German Shepherds are

a breed often used as guard dogs, there was no evidence that the

Lockharts had used their dogs as guard dogs.

Following discovery, the Lockharts moved for summary

judgment dismissing the amended complaint. They argued that

Petrone precluded a negligence action in this case and that the

evidence adduced in discovery yielded no triable issue of fact as

to strict liability because they had no actual or constructive

notice of any dangerous propensity of the dogs. Dobinski opposed

the motion on the ground that triable issues of fact allegedly

existed with respect to the Lockharts' negligence and strict

liability. In Dobinski's estimation, George Lockhart's use of a

four-wheeler to exercise the dogs was tantamount to training the

dogs to chase vehicles at high speed. Dobinski viewed the

incident in which other dogs owned by the Lockharts had run into

the road as evidence of the harmful propensities of the dogs at

issue here. 

Supreme Court denied the Lockharts' motion for summary

judgment dismissing the amended complaint, finding that Dobinski

had a viable negligence cause of action under Hastings. The

court did not directly address Dobinski's strict liability claim. 

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- 9 - Nos. 17 & 66

The Lockharts appealed.

The Appellate Division unanimously reversed Supreme

Court's order, granted the Lockharts' motion for summary judgment

dismissing the amended complaint and dismissed the amended

complaint (see Dobinski v Lockhart, 121 AD3d 1601, 1601-1602 [4th

Dept 2014]). Recognizing strict liability as the only viable

theory of recovery, the Appellate Division determined that the

Lockharts had "met their initial burden [on summary judgment] by

establishing that they [had] lacked actual or constructive

knowledge that the dog had a propensity to interfere with

traffic" (id. at 1602). And, the court concluded that, "[i]n

opposition to the motion, [Dobinski] failed to raise a triable

issue of fact in that respect" (id.). We granted Dobinski leave

to appeal.

II

A

"For at least 188 years, the law of this state has been

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" (Collier v Zambito, 1 NY3d 444, 446 [2004]

[internal citation omitted]). Under this rule, a "vicious

propensity" is the "'propensity to do any act that might endanger

the safety of the persons and property of others in a given

situation,'" including behavior that is dangerous but not

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- 10 - Nos. 17 & 66

necessarily aggressive (id., quoting Dickson v McCoy, 39 NY 400,

403 [1868] [opinion of Glover, J.]). 

In Bard v Jahnke (6 NY3d 592 [2006]), we expounded upon

the relationship between ordinary negligence principles and the

strict liability cause of action permitted by Collier and other

prior decisions, concluding that strict liability's traditional

status as the predominant theory of recovery for injuries caused

by a domestic animal logically forecloses recovery under a theory

of negligence. In Bard, a farm worker was left alone in the farm

owner's barn to watch the cows, but unbeknownst to the worker, a

breeding steer was among the cows; the steer attacked and injured

the worker (see Bard, 6 NY3d at 594-595). The worker sued in

strict liability and negligence, and on appeal, we rejected both

claims based on the worker's failure to demonstrate that the bull

had a known vicious propensity (see id. at 596-599). 

Specifically, we held that "when harm is caused by a domestic

animal, its owner's liability is determined solely by application

of the rule articulated in Collier," for were we to allow a

plaintiff to recover upon the typically less demanding showing of

a prima facie case of negligence, we would "dilute our

traditional rule under the guise of a companion common-law cause

of action for negligence" (id. at 599). 

Three Judges dissented, saying:

"Under the Restatement (Second) of Torts, the

owner of a domestic animal who does not know

or have reason to know that the animal is

more dangerous than others of its class may

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- 11 - Nos. 17 & 66

still be liable for negligently failing to

prevent the animal from inflicting an injury. 

This Court today becomes the first state

court of last resort to reject the

Restatement rule. I think that is a mistake. 

It leaves New York with an archaic, rigid

rule, contrary to fairness and common sense,

that will probably be eroded by ad hoc

exceptions." (id. at 599 [Smith, J.,

dissenting]).

The dissent surveyed the nineteenth century cases creating the

strict liability rule and maintained that none of them foreclosed

a negligence action, and the dissent opined that Hyland v Cobb

(252 NY 325 [1929]) and Dickson, supra, left open the possibility

of a negligence action by declaring that "'negligence by an

owner, even without knowledge concerning a domestic animal's evil

propensity, may create liability'" (Bard, 6 NY3d at 602, quoting

Hyland, 252 NY at 326-327). The dissent conceded that the

majority's rule found support in our previous affirmances of

Appellate Division decisions establishing strict liability as the

sole viable theory of liability arising from animal-related

injuries (see id., citing Kennett v Sossnitz, 260 AD 759 [1st

Dept 1940], affd 286 NY 623 [1941]; Brown v Willard, 278 AD 728

[3d Dept 1951], affd 303 NY 727 [1951]). The dissent nonetheless

found that those cases should not control the matter in light of

the Restatement's sounder rule (see id. at 602). The dissent

predicted that we would eventually have to abandon the rule or

recognize numerous unworkable exceptions to it in order to avoid

harsh results, especially in cases involving exceptionally

dangerous animal behavior directed at vulnerable or particularly

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- 12 - Nos. 17 & 66

sympathetic plaintiffs (see id. at 602-603). 

We have consistently adhered to Bard in several

subsequent cases, concluding that Bard's prohibition against

negligence actions arising from harms caused by domestic animals

served to foreclose the plaintiffs' negligence claims (see

Bloomer v Schauger, 21 NY3d 917, 918 [2013]; Smith v Reilly, 17

NY3d 895, 895-896 [2011]; Petrone, 12 NY3d at 547-550; Bernstein

v Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008]). Among

those cases, Petrone and Smith have particular relevance to

plaintiffs' claims here regarding a dog owner's negligence in

failing to restrain his or her animal. 

In Petrone, the plaintiff mail carrier saw that there

was no fence around the yard in front of the defendant's house,

and the defendant's Rottweiler was lying unrestrained in the yard

(see id. at 547-548). Fearful of the dog, the plaintiff started

walking away to her car, and when she turned around, she saw the

dog running after her (see id.). The plaintiff ran away and

jumped through the window of her car, injuring herself (see id.). 

The dog left the defendant's property and reached the plaintiff,

but it did not harm her (see id.). The plaintiff sued the

defendant for negligence and strict liability, asserting, among

other things, that the defendant's failure to keep the dog

contained on his property, as required by the local leash law,

was proof of actionable negligence on his part (see id. at 549). 

We rejected the plaintiff's claims as she failed to

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- 13 - Nos. 17 & 66

prove the defendant's prior knowledge of the dog's alleged

vicious propensity, saying, "defendant's violation of the local

leash law is irrelevant because such a violation is only some

evidence of negligence, and negligence is no longer a basis for

imposing liability after Collier and Bard" (id. at 550 [internal

quotation marks and citation omitted]). Two Judges joined in a

concurring opinion, in which they stated that, while Bard was

wrongly decided, the precedential force of that decision bound

them to follow it (see id. at 551-552 [Pigott, J., concurring]

["(A)lthough I would not have joined the majority's opinion in

Bard, I must, on constraint of that decision, concur in the

majority's opinion in the present case").

In Smith, we similarly addressed an allegation of

negligent supervision of a domestic animal other than a farm

animal. There, the principal plaintiff was riding his bicycle

when the defendant's dog ran into the road and collided with the

plaintiff, propelling him over the handlebars of the bike and

injuring him (see Smith v Reilly, 83 AD3d 1492, 1493 [4th Dept

2011]). The plaintiff commenced a personal injury suit against

the defendant, pursuing strict liability and negligence theories

of recovery (see id.). A divided panel of the Appellate Division

denied the defendant's motion for summary judgment dismissing the

complaint (see id. at 1493-1494). The majority found that the

defendant's deposition testimony about her dog's tendency to

"bolt" out the door of her home had created a triable issue of

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- 14 - Nos. 17 & 66

fact as to whether her dog had known vicious propensities (id.). 

The Appellate Division dissenters maintained that the plaintiff

had not raised a triable issue of fact as to vicious propensity

and that no other cause of action is available in this context

under Bard (see id. at 1494-1495 [Scudder, J.P., and Smith, J.,

dissenting]). On further appeal, we reversed the Appellate

Division's order, insisting that the plaintiff had to demonstrate

that the defendant knew of the dog's vicious propensities before

the plaintiff could recover for the injuries caused by the

defendant's failure to restrain the dog (see Smith, 17 NY3d at

895-896). Thus, as in Petrone, we concluded that only a strict

liability claim, and not a negligence cause of action, will lie

based on a pet owner's failure to confine the animal to the

owner's property or to restrain the animal from running into

another person. 

Subsequently, in Hastings, we considered an unusual

variant of negligent animal control which implicated an

individual's overlapping responsibilities as an owner of farm

land and an owner of farm animals. There, the plaintiff was

driving her van and hit the defendants' cow, which had wandered

off their farm and onto the public roadway without any apparent

obstruction from the dilapidated fence around their property (see

Hastings, 21 NY3d at 124). The plaintiff and her husband filed a

complaint asserting negligence and strict liability causes of

action against the defendants, and the defendants moved for

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- 15 - Nos. 17 & 66

summary judgment on the grounds that the cow's vicious propensity

had not been shown and that negligence was not a viable theory of

liability under Bard (see id. at 125).

We unanimously decided that the defendants were not

entitled to summary judgment and "h[e]ld that the rule of Bard v

Jahnke does not bar a suit for negligence when a farm animal has

been allowed to stray from the property where it is kept" (id. at

124 [internal citation omitted]). We took care not to disturb

the Bard rule, instead explaining that the Bard line of cases

addressed claims of "aggressive or threatening behavior by an[ ]

animal" (id. at 125) -- in other words, claims that the owners of

domestic animals engaged in negligent conduct by failing to

adequately suppress the animals' harmful behavior. By contrast,

we noted, the case before us involved a claim that was

"fundamentally distinct from the claim made in Bard and similar

cases: It is that a farm animal was permitted to wander off the

property where it was kept through the negligence of the owner of

the property and the owner of the animal" (id.). In our view,

the Bard rule had no bearing on the issue of a farm owner's

negligence in failing to keep his or her farm animals on the

property, as applying the Bard rule in such circumstances would

improperly "immunize defendants who take little or no care to

keep their livestock out of the roadway or off of other people's

property" (id.). We "therefore h[e]ld that a landowner or the

owner of an animal may be liable under ordinary tort-law

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- 16 - Nos. 17 & 66

principles when a farm animal — i.e., a domestic animal as that

term is defined in Agriculture and Markets Law § 108 (7) — is

negligently allowed to stray from the property on which the

animal is kept," and hence the plaintiff had a viable negligence

claim against the defendants (id. at 126). However, we cautioned

that we were "not consider[ing] whether the same rule applies to

dogs, cats or other household pets" because "that question [had

to] await a different case" (id.). 

On the same day we handed down our decision in

Hastings, we faithfully applied the Bard rule in another case,

rebuffing the plaintiff's request to overrule Bard. In Bloomer v

Schauger, supra, the plaintiff was helping the defendant to

control the defendant's distraught horse by holding the horse's

halter (see Bloomer, 21 NY3d at 918). When the defendant was in

the process of placing a lead line on the skittish animal, the

plaintiff tried to assist him, and the horse jerked its neck back

in response to the defendant's attempt to restrain it, causing

the halter ring to sever the plaintiff's finger (see id. at 918;

see also Bloomer v Schauger, 94 AD3d 1273, 1273-1274 [3d Dept

2012]; appellant's brief in Bloomer at 10-12). The plaintiff

sued the defendant on a theory of strict liability and for

negligence (see Bloomer, 94 AD3d at 1273-1274). The Appellate

Division dismissed the plaintiff's negligence claim on constraint

of Bard, and it dismissed the strict liability cause of action

based on the plaintiff's failure to show that the horse had a

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- 17 - Nos. 17 & 66

known vicious propensity (see id. at 1274-1277). One Justice

dissented, urging that because the Bard rule was "extremely

restrictive" and harsh, it should be applied narrowly in a manner

that would allow the plaintiff to recover (id. at 1277 [Garry,

J., dissenting]). 

On appeal to us, the plaintiff contended that the

Appellate Division had erred in finding his showing of vicious

propensity inadequate (see appellant's brief in Bloomer at 2-3,

13-17). In the alternative, the plaintiff argued that, while the

Bard rule would ordinarily limit his ability to recover for the

defendant's alleged negligence, that rule should not bar his

negligence claim under the facts of his case. He said, "This

case is significantly different from the four cases which have

come before this Court since Collier" because "in none of the

cases that have been before this Court has the owner caused the

animal to engage in the injury[-]causing conduct" (appellant's

brief in Bloomer at 18). Thus, the plaintiff asserted that the

defendant was liable insofar as "the [defendant]'s conduct" in

placing the lead line on the horse "caused [the horse] to injure

[the plaintiff]" (appellant's brief in Bloomer at 18-19). To the

extent Bard was to the contrary, the plaintiff "respectfully

request[ed] that this Court reverse Collier and Bard and adopt

the Restatement rule to allow appellant and those injured by

domestic animals to recover under theories of common law

negligence," asserting that those cases were wrongly decided for

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- 18 - Nos. 17 & 66

the reasons stated by the Bard dissent (appellant's brief in

Bloomer at 21). The plaintiff reiterated this point in his reply

brief (see appellant's reply brief in Bloomer at 1-3).

We were unmoved by the plaintiff's requests that we

overturn Bard or permit his negligence action to proceed on the

premise that the defendant's conduct, rather than the horse's

instinctive behavior, caused the horse to injure the plaintiff. 

In a memorandum decision issued on the same day as Hastings, we

unanimously affirmed the Appellate Division's order (see Bloomer,

21 NY3d at 918). Specifically, we declared:

"Under the rule of Bard v Jahnke (6 NY3d 592,

848 NE2d 463, 815 NYS2d 16 [2006]), plaintiff

cannot recover in the absence of a showing

that defendant had knowledge of the animal's

'vicious propensity' or 'propensity to do any

act that might endanger the safety of the

persons and property of others' (6 NY3d at

596-597, quoting Collier [1 NY3d at 446]). 

No such showing was made here. A tendency to

shy away when a person reaches for a horse's

throat or face is, as the record shows, a

trait typical of horses. The Appellate

Division correctly held that a vicious

propensity cannot consist of 'behavior that

is normal or typical for the particular type

of animal in question' (Bloomer v Shauger, 94

AD3d 1273, 1275, 942 NYS2d 277 [2012])." 

(id. at 918).

Significantly, despite that a farm animal was involved in

Bloomer, our decision there was fully consistent with both Bard

and Hastings, as Bloomer did not involve Hastings's unique

intersection of the defendant's obligations as a land owner and

his obligations as the owner of a domestic animal.

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- 19 - Nos. 17 & 66

B

Acknowledging that Bard and its progeny would otherwise

preclude them from bringing negligence causes of action against

defendants in these cases based on the injuries caused by

defendants' animals, plaintiffs in the cases at bar propose two

potential bases on which they might avoid Bard's prohibition

against negligence liability. Plaintiffs' theories are: (1) our

holding in Hastings logically extends to cover domestic pets,

such that the failure to properly restrain a dog or confine it on

the owner's property may create negligence liability; and (2)

defendants' affirmative negligent acts in using their dogs as

instrumentalities of harm created negligence liability because,

unlike in Bard and similar cases involving animals instinctively

harming others without the direct control of their owners, such

affirmative acts constitute the negligence of the owners rather

than of their pets. In their briefs, plaintiffs do not ask us to

overrule Bard, though they complain about some of its purported

shortcomings. For the reasons that follow, I reject plaintiffs'

arguments with respect to these two proposed exceptions and

conclude that the Bard rule controls. 

Contrary to plaintiffs' suggestion, our decision to

impose liability on the owner of a farm animal in Hastings, based

on the owner's failure to keep the animal from wandering off his

or her property, does not logically create a negligence cause of

action for the failure to restrain a dog on one's premises or in

other locations. As we noted in Hastings itself, there is a

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- 20 - Nos. 17 & 66

"fundamental[ ] distinct[ion]" (Hastings, 21 NY3d at 125) between

a domestic animal owner's failure to prevent his or her animal

from behaving dangerously, which is generally not an actionable

form of negligence, and a farm owner's decision to allow his or

her farm animals to wander freely onto a public road or someone

else's property, which as a commonsense matter violates societal

expectations in a manner that gives rise to negligence liability. 

And, Hastings's treatment of the failure to keep farm animals on

the owner's property as distinct from the negligent supervision

of other types of domestic animals makes sense. In that regard,

domestic farm animals -- horses, cows, goats, sheep, swine, ducks

and the like (see Agriculture and Markets Law § 108 [7]) --

either are difficult to train to remain on one's premises of

their own accord (e.g., cows, goats, sheep, fowl), have a

proclivity to bolt without confinement (e.g., horses) or have a

particularly hazardous combination of a large size and a habit of

extremely aggressive behavior related to establishing dominance

with respect to humans and other animals (e.g., bulls, pigs). In

recognition of the unique peril that arises from allowing farm

animals to wander off a farm unsupervised and unconfined, the

Legislature requires such animals, by statutory definition, to be

"raised in confinement" and under state license (id.). 

In other words, in New York, society has long

recognized that the owners of farm animals have a duty to

exercise reasonable care in keeping such exceptionally dangerous

- 20 -
- 21 - Nos. 17 & 66

or errant creatures on the owners' premises, and in Hastings, we

recognized that duty in holding the defendant farm owner liable

for his negligent failure to confine his cow on his property. 

Indeed, it is a matter of common expectation among people in

general that a 1,500-pound cow, a 400-pound pig or an unruly goat

will not be permitted to wander freely into traffic or onto a

neighbor's yard, mangling people and property alike.

By contrast, the ownership of most domesticated nonfarm animals does not naturally necessitate such a duty of care

and restraint on the part of their owners because non-farm

animals pose different risks than farm animals. Domestic pets

are more apt to stay on their owners' premises of their own

volition as a result of the domestication and training that have

been reinforced over the centuries of humanity's near-familial

relationship with its pets. And, few lawfully kept domestic

animals reach the levels of size, aggressiveness and desire to

wander that many farm animals do.

Furthermore, at least since our decision in Bard, New

York society has had no reasonable expectation that all domestic

pets will be perpetually confined in their homes or physically

restrained at all times. Pet owners often take their pets to

public places in close proximity to other people, both on leashes

and off of them depending on the location, and the people in

those areas have come to expect this phenomenon and to approach

such situations with caution. The average New Yorker knows or

- 21 -
- 22 - Nos. 17 & 66

ought to know that he or she will encounter insufficiently

restrained pets, which are not confined to the owner's premises

and may harm others depending on the disposition of the pet and

the degree of training it has received. In public parks, one

regularly encounters dog owners with their unrestrained canine

companions, whereas one almost never sees, and certainly never

expects to see, someone taking his or her cow for a walk in the

neighborhood. As Bard effectively holds, New York society has

learned to adequately mitigate the perils of unrestrained pets by

a combination of strict liability, statutory regulation and the

prudence of those who approach these animals, without adopting a

negligence cause of action based on the failure to supervise or

restrain a domestic pet. Given the clear differences in the

risks posed by farm animals and pets, there is no reason to

extend the rule of Hastings to authorize negligence liability

resulting from faulty supervision of a pet.

More fundamentally, plaintiffs' proposed expansion of

liability under Hastings would run directly counter to our

precedents, including Petrone and Smith. After all, in Petrone

we rejected a claim that negligence should lie where a dog owner

allowed his dog to stray from his property and chase a mail

carrier (see Petrone, 12 NY3d at 547-550). And in Smith, we

concluded that a dog owner's failure to restrain her dog from

running into the street and hitting a bicyclist did not give rise

to a negligence cause of action (see Smith, 17 NY3d at 895-896). 

- 22 -
- 23 - Nos. 17 & 66

An extension of Hastings would clearly contradict those decisions

because, under Hastings, the owner of a farm animal may be held

liable for his or her negligence in permitting an animal to

wander unrestrained and injure people, whereas in Petrone and

Smith, we concluded that the defendants were relieved of

negligence liability for engaging in essentially the same

behavior with respect to their dogs, which were permitted to roam

about and harm others. Rather than extending Hastings to create

an inherent contradiction in our case law, I choose to harmonize

Petrone, Smith and Hastings by finding that the Hastings rule is

limited to cases involving farm animals. Thus, as the majority

observes (see majority op. at 2), the Hastings rule does not

render defendants liable in the instant cases, both of which

involve claims of negligence in the handling of domestic pets

rather than the failure to keep farm animals from wandering off

the farm.

Following the reasoning of the Appellate Division

majority in Doerr, plaintiffs in the instant cases now proclaim

that Bard and its progeny do not preclude their negligence claims

because defendants engaged in affirmative acts of control over

their pets, whereas in the Bard line of cases, the animals

injured people of their own volition after their owners failed to

restrain them. But this argument does not withstand close

scrutiny. To see the flaws in this direct-control-versusfailure-to-restrain theory, one need only look at the Appellate

- 23 -
- 24 - Nos. 17 & 66

Division majority's attempt to apply that theory in Doerr.

In Doerr, the Appellate Division majority tried to

distinguish Bard and Petrone on the ground that defendant Smith,

unlike the defendants in those cases, affirmatively used the dog

as an instrumentality of harm by calling it to cross over the

road to her; such a case "is not about the particular actions of

an animal that led to a person's injury," the Appellate Division

majority said, but rather "is about the actions of a person that

turned an animal into an instrumentality of harm" (Doerr, 110

AD3d at 455). But, contrary to the Appellate Division's

supposition, there is no material difference between the act of

negligently failing to restrain an instrument of danger and the

act of negligently ordering such an instrument to possibly cause

harm because both forms of conduct have the same tendency to

injure others. Regardless of whether a person releases a dog to

instinctively roam near a high-traffic bicycle path or urges the

dog to cross the same path, there is some likelihood that the dog

will run into a bicyclist and injure him or her. In both

scenarios, then, the dog owner is equally capable of preventing

harm to the cyclist and equally responsible for that harm, and

consequently, the dog owner should face equal liability, or lack

thereof, for his or her negligence. 

Stated differently, neither the calling of a dog across

the road nor the release of a dog near the road can cause injury

without the volitional conduct of the dog, thereby making the two

- 24 -
- 25 - Nos. 17 & 66

actions comparable for purposes of negligence law. Where the

owner calls the dog across the road, the dog still will not cross

the road and into the path of a bicyclist without instinctively

and willfully choosing to do so. If the dog ignores the owner's

call, as dogs are sometimes wont to do, no injury occurs. 

Likewise, if a dog is released from restraint at the side of a

road, the dog may instinctively choose to wander into the way of

a cyclist, to do nothing, or to wander away from the road, but

only its choice, rather than the owner's act of releasing it from

its bonds, will result in any injury. In both scenarios, then,

the dog's volitional behavior ultimately creates the harm, and

the owner's act or omission does not cause the injury. 

This is why, in Doerr, the Appellate Division

majority's assertion that the actions of Smith and her boyfriend

in releasing and calling the dog across the biker's path were

akin to those of a couple tossing a ball across a roadway must

fall flat (see Doerr, 110 AD3d at 455). When a person tosses a

ball, the object has no will of its own, and hence the object's

non-existent volitional behavior cannot cause any injury. The

ball can do nothing other than obey the laws of physics, and the

ball must move if the human actors carry out their wish for it to

do so. While the individuals hurling the ball may not know the

exact path it will follow, they are liable for negligence so long

as it is reasonably foreseeable that the ball's travel through

the air might place it on a collision course with another person. 

- 25 -
- 26 - Nos. 17 & 66

By contrast, dogs may deem their masters' commands considerably

less compelling than the forces of acceleration and gravity. A

dog owner's call may prompt the dog not to move at all, much less

collide with someone, and therefore negligence cannot lie based

on the owner's order. This inability to predict or control how a

dog will interpret, react, and respond to its surroundings is why

negligence cannot lie based on the owner's order alone. With

respect to the ball-tossing scenario, the more apt analogy would

be between a person throwing a ball in someone's way and a person

tossing a small dog in someone's way, causing the dog to hit the

person regardless of its desire to avoid such a fate. Plainly,

such a case is not presented in either of these appeals. 

Not only does plaintiffs' proposed distinction between

an omission of restraint and an act of control defy the practical

realities of pet behavior, but it is also inconsistent with basic

negligence principles. In that regard, the existence of

liability for negligence generally does not depend on whether the

negligent conduct of the tortfeasor is deemed an act or an

omission, but rather on whether the individual violates a commonlaw duty to exercise reasonable care to prevent certain harms

(see 79 NY Jurisprudence Negligence § 10 [2d edition]; see

generally Palsgraff v Long Is. R. R. Co., 248 NY 339, 342, 344

[1928]). Because Bard does not impose a duty on a pet owner to

exercise reasonable care in the control of a pet that has no

known vicious propensity, the owner's failure to exercise such

- 26 -
- 27 - Nos. 17 & 66

care, whether by act or omission, does not furnish a basis for

liability. It is presumably for this reason that we have never

drawn the illusory act/omission distinction now urged by

plaintiffs. In fact, as discussed above, in Bloomer, we declined

the plaintiff's invitation to draw such a distinction.

One of my colleagues, who dissents in Doerr only, deems

the Appellate Division's rationale in that case "not entirely

satisfactory" (dissenting op. in Doerr at 4), yet offers a

rephrased version of the same unsatisfactory rationale, declaring

that "where a plaintiff sustains injury as the direct result of

actions that a domestic animal took under the owner's direction

and control, a cause of action in negligence should lie" (id. at

4-5). However, this proposed rule proceeds from the same

premise, and hence suffers from the same logical flaws, as the

Appellate Division's decision. Again, where an owner calls to

his or her animal, such that the animal is under the purported

"direction and control" of the owner, the owner's call still

merely sets off a "chain of events" (dissenting op. in Doerr at

4) rather than a certain and direct accident.1 Even in the face

1 To the extent the Doerr dissent's comment about a "chain

of events" (dissenting op. in Doerr at 4) is a reference to the

issue of proximate cause, that is simply beside the point here. 

In this Court and the courts below, the parties in Doerr have

never framed the issue here as one of proximate cause, and as a

result, this Court cannot decide this case on that basis. More

to the point, any attempt to cast proximate cause as the sole

decisive issue in cases involving injury caused by animals must

fail because, even where there is adequate evidence that an

animal owner's conduct proximately caused an accident via his or

- 27 -
- 28 - Nos. 17 & 66

of a direct command, the animal may still decide to ignore the

instruction, follow the instruction perfectly, take the requested

action for reasons unrelated to the instruction or carry out the

requested action in an unanticipated way. Since there is no way

to know why the animal did what it did, there is no principled

basis on which to impose negligence liability. 

To be sure, in Doerr, Smith seemingly attempted to

control her dog by calling to it, and the dog did decide to cross

the bike path after Smith made that call. But it does not follow

that Smith had unquestioned command of the dog, or that the dog

chose to cross the bike path at the moment of Doerr's approach as

a direct result of Smith's command. For instance, Smith's dog

might have crossed the bike path because it was attracted to the

appearance of the grass on the other side. The dog could have

completely failed to hear Smith's call over the din of a busy

park, or misunderstood the order, and yet it still ran across the

path because it was naturally inclined to run toward the area

that it saw immediately in front of it. Perhaps the dog

initially responded to Smith's call prior to Doerr's arrival on

the scene, but then decided to move at a leisurely pace,

her interaction with the animal, the owner has nonetheless not

breached any duty of care recognized under New York's law of

negligence. Indeed, our prior decisions in this area have never

turned on the lack of proof of proximate causation, and decisions

such as Bloomer denied relief to the plaintiffs in the face of

clear evidence of proximate causation because the duty element of

a negligence action was lacking.

- 28 -
- 29 - Nos. 17 & 66

lingering too long on the path to finish crossing before Doerr

arrived. 

In any of these scenarios, Smith might have hoped that

the dog would choose to follow her command, but she did not know

that it would, nor did she know that the dog would fail to dodge

the oncoming bike or to otherwise proceed cautiously in response

to her command. It is true that these various possibilities are

speculative on this record, but so is the dissent's supposition

that Doerr's injury was the "direct result" of Smith's "direction

and control of the dog" (dissenting op. in Doerr at 4). The most

that can be said is that Goldsmith's release of the dog enabled

it to proceed unrestrained across the bike path, and that the dog

crossed the path after Smith called to it. Ultimately, though,

even if the dog decided to cross the path at its typical pace in

order to please Smith, that was the dog's choice. As we have

repeatedly made clear in the Bard line of cases, the dog's choice

does not result in negligence liability for the owner.

Were this analysis of Doerr not already enough to show

that plaintiffs are taking a flawed approach by advancing this

act/omission distinction, Dobinski's belated and perplexing

attempt to apply this theory to her case confirms that

plaintiffs' theory is unworkable. At oral argument before this

Court, Dobinski's counsel contended for the first time that

Milagros Lockhart's conduct in releasing the dogs onto the

exterior portions of her property 10 seconds before the accident

- 29 -
- 30 - Nos. 17 & 66

constituted an affirmative act on her part, which could support

negligence liability. At first glance, this would be a plausible

argument if one were to adopt the affirmative act theory advanced

by the Appellate Division in Doerr. When a pet owner lets a dog

outside to run near the highway, he or she plainly sets an

instrumentality of harm in motion just as much as if he or she

had called the dog to the highway. As in the case of an owner

ordering a dog to come, it is ultimately the dog's decision to

enter the roadway that causes harm to passersby, notwithstanding

that the owner has enabled or encouraged the dog's movement. 

That being so, Dobinski's case stands on the same footing as

Doerr's under the act/omission distinction, and if plaintiffs

were correct, negligence would lie in both cases. Yet the

possibility that plaintiffs' theory might create negligence

liability in Dobinski shows that their proposal to distinguish

the Bard line of cases in this way would soon lead to the

abrogation of our precedent, for in Petrone and Smith, we

rejected negligence liability in situations virtually identical

to the one in Dobinski. Thus, the adoption of plaintiffs'

proposed affirmative act theory threatens to swallow Petrone and

Smith whole.

Accordingly, plaintiffs' efforts to extend the Hastings

principle to this case and to distinguish the Bard line of cases

are unavailing, and they do not assert any other grounds for

declining to apply the Bard rule to their cases. Therefore, in

- 30 -
- 31 - Nos. 17 & 66

my view, the rule of Bard controls these cases and bars

plaintiffs' negligence claims arising out of the injuries caused

by defendants' domestic pets.

Having disposed of plaintiffs' contentions, there is no

need to go further to resolve their negligence claims. 

Nonetheless, I note that, while refraining from any direct attack

on the precedential force of Bard, plaintiffs make some passing

criticisms of our decision in Bard at various points in their

briefs. My colleagues, who dissent in both of the instant

appeals rather than limiting their disagreement to Doerr, urge

that we cast aside Bard (see dissenting op. in both cases at 1),

notwithstanding that even plaintiffs do not ask us to go so far.2

A response is in order. 

 Plaintiffs and the dissent seem to lament various

aspects of Bard. As did the Bard dissenters, the plaintiffs and

the dissent imply that Bard is inconsistent with our older case

law, such as Dickson, supra, which recognized a cause of action

for the negligent failure to restrain horses and cows (see

dissenting op. in both cases at 1-8). Citing the dissent in

2 At oral argument in this Court, Doerr's counsel, while

not asking that Bard be overruled, requested a "broader ruling"

in Doerr's favor and made references to the Restatement rule,

which may have been made in support of the contention in Doerr's

brief that the holding of Hastings should be broadened to cover

his case. Even if counsel's oral presentation could somehow be

interpreted as a belated request to overrule Bard, it would be

inappropriate for us to re-evaluate the continuing validity of a

recently reaffirmed precedent absent full briefing of the issue

from both parties and any interested amici.

- 31 -
- 32 - Nos. 17 & 66

Bard, plaintiffs note the alleged harshness of the Bard rule in

denying recovery to plaintiffs who suffer animal-related

injuries, and like the Bard dissent, plaintiffs and the dissent

point out that New York is an outlier in rejecting the sort of

negligence action endorsed by the Restatement (Second) of Torts

in this context (see dissenting op. in both cases at 8-11). 

However, even if the issue of Bard's continued status

as precedent were properly before us -- and it is not -- I would

not be convinced to overturn Bard based on the very arguments

that we considered and rejected in that case. In general, we do

not cast aside precedent unless it has become unworkable,

increasingly irrational and/or increasingly unjust over time (see

People v Peque, 22 NY3d 168, 194 [2013]; Policano v Herbert, 7

NY3d 588, 604 [2006]). Here, none of those things has occurred. 

No party to this litigation has suggested that the courts are

incapable of consistently applying the Bard rule. To the

contrary, even plaintiffs acknowledge that Bard provides an easyto-apply bright line rule that consistently proves fatal to

negligence claims arising from injuries caused by certain

animals. And, while plaintiffs claim the rule is harsh, they

point to no evidence or scholarly study indicating that the

supposed harm occasioned by Bard has increased since the issuance

of Petrone, Smith and our other decisions upholding Bard. 

Indeed, the only thing that has changed since we last turned away

a challenge to the Bard rule just two years ago (see Bloomer, 21

- 32 -
- 33 - Nos. 17 & 66

NY3d at 918) is the composition of this Court, which is plainly

not an appropriate basis on which to set aside precedent (see

Peque, 22 NY3d at 194). 

To be sure, plaintiffs' and the dissent's complaints

about Bard are not baseless, but the same could be said of those

criticisms when they were raised by the Bard dissent 10 years

ago. Then, as now, we had issued decisions potentially

permitting negligence actions against the owners of horses loosed

from their confines -- cases which can be squared with Bard and

Hastings to the extent they involved farm animals (see Dickson,

39 NY at 401 [opinion of Dwight, J.]; cf. id. at 402-403 [opinion

of Glover, J.]; see also Benoit v Troy & Lansingburgh R.R. Co.,

154 NY 223, 225-227 [1897]) and which, as the Bard dissent

conceded (see Bard, 6 NY3d at 601-602 [Smith, J., dissenting]),

could be read as either implicitly supporting (see Hyland, 252 NY

at 326-327) or rejecting (see Vrooman v Lawyer, 13 Johns 339, 339

[1816]; Kennett, 286 NY at 624; Brown, 303 NY at 728) the

Restatement's rule. Thus, when Bard was decided, the Court was

aware that there was some precedent to support a conclusion

different from that which it reached.

Significantly, too, and contrary to the dissent's

assertions (see dissenting op. in both cases at 1-8), the Bard

Court's evaluation of policy and precedent remains convincing. 

As noted, we decided Bard consistently with older decisions such

as Dickson, which simply stand for the proposition, later

- 33 -
- 34 - Nos. 17 & 66

reaffirmed in Hastings, that the owner of a farm animal -- a

horse in Dickson -- is liable for negligently allowing such an

animal to stray onto a public roadway (see Dickson, 39 NY at 401-

403). The Bard Court remained faithful to the Dickson line of

cases insofar as those cases do not dictate that owners of

domestic animals may be sued for negligence based on other forms

of misfeasance in the handling of their animals, and pre-Bard

precedent suggests that no viable cause of action exists for

general negligence in the control or supervision of a domestic

animal (see e.g. Vrooman, 13 Johns at 339). Our post-Bard

decisions applying the Bard rule, such as Petrone and Smith, flow

logically from firmly rooted decisional law holding that

"domestic favorites such as the family dog or cat, as emblematic

of a suburban community as a cow or horse is to the standard

farm, are, as a norm, frequently allowed to romp unguarded or

unattended" because "[a]s a general proposition '[a] dog, unless

vicious, has a right in the highway, and presumably, absent

evidence of negligence, the dog's owner cannot be charged with

liability for injury caused [merely] by its presence therein'"

(Young v Wyman, 159 AD2d 792, 794-794 [1st Dept 1990] [quoting 3

NY Jur 2d, Animals, § 48, at 625-626], affd 76 NY2d 1009 [1990];

Kennett, 286 NY at 624 [affirming decision below that a dog owner

could not be liable for failing to prevent his dog from running

off his premises and knocking down the plaintiff on the

sidewalk]). Even the Restatement rule, which we rejected in

- 34 -
- 35 - Nos. 17 & 66

Bard, does not treat a domestic pet's untrammeled wanderings as

actionable negligence (see Restatement 2d of Torts § 518, comment

j). Consequently, the Bard dissent's suggestion that the Court

was ignoring its past decisions rings as hollow now as it did

then. 

 My colleague dissenting only in Doerr points out

that, in some unusual cases, the facts of the animal-related

injury-causing occurrence will not fit comfortably within the

confines of the vicious propensity doctrine announced in the

aforementioned precedent (see dissenting op. in Doerr at 2-5).3

As we have recognized, however, "delineation of limits of

liability in tort actions is usually determined on the basis of

considerations of public policy" (Bovsun v Sanperi, 61 NY2d 219,

228 [1984]). When Bard was decided, we concluded that the

benefits of a bright line rule limiting recovery to a theory of

strict liability outweighed the concerns of those few cases for

which application of the rule may seem unsatisfactory. That

3 Along these lines, I also reject the Doerr dissent's

suggestion that "[t]he rule of vicious propensities should have

no application here, where we are not faced with any aggressive

or menacing animal behavior" (dissenting op. in Doerr at 2). We

have held that "vicious propensity" is a term of art which

applies not only to aggressive or threatening behavior, but also

to "propensity to do any act that might endanger the safety of

the persons and property of others in a given situation"

(Collier, 1 NY3d at 446 [internal quotation marks and citation

omitted]). Accordingly, the owner of an animal does not lose the

protection of Bard's holding simply because the animal chooses to

do something dangerous, but not necessarily aggressive or

menacing. 

- 35 -
- 36 - Nos. 17 & 66

determination remains reasonable today because there are

legitimate policy reasons to retain the Bard rule, including its

ability to keep liability within manageable limits, its bright

line guidance and its consistency with societal expectations. At

its heart, the Bard principle is a commonsense rule of notice. 

Absent awareness of a domestic animal's previously demonstrated

tendency to harm others, the owner should not bear the costs of

the animal's instinctive decisions, notwithstanding that animals

by their nature tend to pose some risk of harm, especially when

poorly directed or left unrestrained. Notice rules such as this

are hardly oppressive or alien to our law, and they permit our

citizens to manage their affairs based on the known risks of

daily life. 

Abandoning or eroding Bard's bright line rule would

harm pet owners and alter societal expectations. Pet owners and

their insurers are currently entitled to rely on the Bard rule to

plan their future conduct and their insurance needs, and changing

the rule now would risk unfairly disrupting their expectations. 

Additionally, if Bard were overruled and negligence suits were

permitted to proceed against pet owners, a violation of a local

leash law may be proof of a pet owner's negligent failure to

control his or her pet, and thus negligence suits might create a

de facto private cause of action under local leash laws,

effectively ignoring the will of any local legislature that has

decided not to provide for such actions. While I acknowledge

- 36 -
- 37 - Nos. 17 & 66

that out-of-state courts that have addressed the issue have

nearly uniformly recognized a negligence cause of action arising

from the handling of all domestic animals, the same was true at

the time Bard was decided (see Bard, 6 NY3d at 600 [Smith, J.,

dissenting]), and that is not a sufficient reason to overrule our

longstanding and recently reaffirmed precedent. 

At bottom, regardless of our individual positions on

the Bard rule, we should not revisit our adoption and consistent

retention of the rule today, as neither plaintiffs' jabs at Bard

nor the dissent's concerns are sufficiently weighty to overcome

critical considerations of stare decisis. A state's highest

court is, first and foremost, charged with creating a coherent

body of settled law by which members of society may order their

affairs. This mission inevitably reflects the policy choices of

predecessor judges that decide an issue and thereby create a

precedent, and is inevitably undermined if successor judges

succumb to the very human impulse to cast aside or chip away at

those rulings with which they simply disagree. Indeed,

plaintiffs' veiled criticisms of Bard call to mind a variation of

an observation made by the author of the Bard dissent in a

different context: "Essentially this argument [for rejecting the

current rule] has been ably made by three dissenting Judges [and

two concurring Judges] in two of our prior cases" in Bard and

Petrone, "[b]ut I respectfully suggest that, at this late date,

the question should be considered settled" (People v Giles, 24

- 37 -
- 38 - Nos. 17 & 66

NY3d 1066, 1073 [2014] [Smith, J., concurring]). Under our

precedent, plaintiffs' negligence claims must fail because the

particular exceptions to the Bard rule proposed by plaintiffs are

incompatible with Bard and its progeny. Having been presented

with no alternative theory of recovery, I neither reject nor

endorse any other potential legal theory or exception to the Bard

rule not advanced by the parties in these cases.4

C

In Dobinski, plaintiff Dobinski pleaded a strict

liability cause of action in addition to her negligence claim. 

However, as the majority rightly concludes (see majority op. at

2-3), Dobinski cannot proceed on her strict liability claim on

this record because she did not sufficiently demonstrate that the

Lockharts were aware that their dogs had a propensity to run into

the road and pursue bicyclists. In their motion papers and

depositions, the Lockharts stated, without contradiction, that

they had never known their dogs to run into the road or approach

bicyclists, and their neighbor confirmed that the dogs had no

known tendency to interfere with traffic. Thus, the Lockharts

carried their initial burden on summary judgment of showing that

they did not know of any vicious propensities of their dogs. 

4 Likewise, because plaintiffs in these cases did not

allege that defendants committed any intentional or reckless

torts, I do not opine on whether the owner of a domestic animal

may be held liable for supervision of an animal undertaken with

the intent to cause harm to another or with conscious disregard

of a known and unjustifiable risk of harm to another.

- 38 -
- 39 - Nos. 17 & 66

In response, Dobinski failed to create a triable issue

of fact by showing that the Lockharts had notice of the dogs'

proclivity to harm others. Although Dobinski argues that the

Lockharts trained the dogs to run after vehicles at high speed,

the record shows that George Lockhart merely prompted the dogs to

follow his four-wheeler from time to time at a slow pace for

exercise purposes, and there is no evidence that the Lockharts

trained their dogs to generally chase vehicles, including

bicycles, outside their farm land or to chase vehicles at a high

rate of speed. Nor does it matter that, in separate incidents

before and after Dobinski's accident, the Lockharts' other dogs

had run into the road, as those dogs' propensities cannot

demonstrate that the entirely different dogs at issue here had a

tendency to harm others. Likewise, even if one were to assume

that the Lockharts violated the local leash law, such a violation

would only be some proof of negligence and could not establish

strict liability (see Petrone, 12 NY3d at 550). In the face of

the Lockharts' deposition testimony and allegations, Dobinski

raised no triable factual dispute about the Lockharts' knowledge

of their dogs' propensities, and the Appellate Division properly

granted the Lockharts summary judgment on that issue (see Smith,

17 NY3d at 896; see generally Jacobsen v New York City Health and

Hospitals Corp., 22 NY3d 824, 833 [2014]). I further reject

Dobinski's claim that the Lockharts were liable for their alleged

negligence in creating a dangerous condition on their premises

- 39 -
- 40 - Nos. 17 & 66

and on the roadway by mishandling their dogs.

III

Based on the foregoing observations, in Doerr, I vote

to reverse the order of the Appellate Division, grant defendant

Smith's motion for summary judgment dismissing the complaint and

answer the certified question in the negative. In Dobinski, I

vote to affirm the order of the Appellate Division.

- 40 -
Wolfgang Doerr v Daniel Goldsmith and Julie Smith

No. 17 

Cheryl Dobinski v George O. Lockhart and Milagros Lockhart

No. 66

LIPPMAN, Chief Judge (dissenting in case no. 17 and concurring in

case no. 66):

In Hastings v Sauve (21 NY3d 122 [2013]), we held that

the "vicious propensities" rule the Court had announced in Bard v

Jahnke (6 NY3d 592 [2005]) was inapplicable to the situation

created when a large farm animal was permitted to wander into a

public roadway. I would conclude that the vicious propensities

rule is similarly inapplicable to this case and that a cause of

action can be maintained against defendant dog owner for her

negligence.

As we observed in Hastings, Bard had adhered to the

traditional vicious propensities rule, which requires a plaintiff

to demonstrate that an owner had knowledge that the animal's

behavior "reflect[ed] a proclivity to act in a way that puts

others at risk of harm" (21 NY3d at 125 [internal quotation marks

and citations omitted]). We further noted that our "vicious

propensities" line of cases following Bard involved situations

where the plaintiff had been bitten or somehow menaced by a dog

(see Petrone v Fernandez, 12 NY3d 546 [2009] [plaintiff chased by

dog]; Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008]

[plaintiff bitten by dog]; see also Smith v Reilly, 17 NY3d 895

- 1 -
- 2 - Nos. 17 & 66

[2011] [dog ran into the road and collided with plaintiff's

bicycle]).

To the contrary, the fact pattern in Hastings did "not

involve aggressive or threatening behavior by any animal" and we

viewed its claim -- that both the owner of the cow and the owner

of the property were negligent in allowing it to wander away --

as "fundamentally distinct" from the claims made in the Bard line

of cases (see Hastings, 21 NY3d at 125). We held that to apply

the Bard vicious propensities rule "in a case like this would be

to immunize defendants who take little or no care to keep their

livestock out of the roadway or off of other people's property"

(Hastings, 21 NY3d at 125).

Although the situation presented in Doerr is

distinguishable from Hastings, in fundamental respects they are

the same. The rule of vicious propensities should have no

application here, where we are not faced with any aggressive or

menacing animal behavior -- quite the opposite, since defendant's

dog allegedly did exactly as she was told (see e.g. Bloomer v

Shauger, 21 NY3d 917, 918 [2013] ["a vicious propensity cannot

consist of 'behavior that is normal or typical for the particular

type of animal in question'"]). Moreover, application of the

rule in this instance would serve only to immunize defendant from

the consequences of her own negligent actions, for no reason

other than that a dog happened to be involved in the accident.

I would continue to adhere to the vicious propensities

- 2 -
- 3 - Nos. 17 & 66

rule where it appropriately applies, which would appear to be the

great majority of cases involving injuries caused by domestic

animals. Indeed, as noted above, we have reaffirmed that holding

several times in the recent past. The rule reflects a policy

decision that a pet owner is not required to anticipate and take

steps to prevent aberrational, dangerous behavior from an

apparently benign animal. For example, an owner will not be

liable the first time a rambunctious dog welcoming a guest knocks

him down the steps. Thus, in Dobinski, the absence of evidence

that the defendants were aware their dogs had a penchant for

running into the road dooms the plaintiff's case.

The situation presented by Doerr, however, is distinct. 

Defendant did in fact control her dog, but allegedly was

negligent in directing it into the path of the oncoming bicycle. 

The concurring opinion emphasizes a dog's "volitional behavior"

(concurring op. at 27) and I think we can all agree that a dog is

not analogous to an inanimate object, as it has agency of its

own. But people expend significant amounts of time and effort,

and sometimes go to great expense, in an effort to train their

dogs to be obedient. When those efforts are successful and the

dog acts according to the owner's command, that is not a vicious

propensity, but should not necessarily result in the owner's

immunity from liability. As we recognized in Hastings, the

vicious propensity rule does not cover every situation. By

contrast to the above example of nonactionable canine greeting,

- 3 -
- 4 - Nos. 17 & 66

were the owner to throw a ball towards the steps as the guest

ascends and the dog's inevitable chase propels the guest

downward, it is clear to me that the owner's far greater

culpability in the latter disaster should compel the availability

of a recovery in negligence. I would place Doerr squarely in

that category as well.

The rationale proffered by the Appellate Division below

-- that defendant should be held liable because her actions

turned the dog into an instrumentality of harm -- is not entirely

satisfactory, as it could potentially encompass a much broader

range of owner conduct. For instance, the owner in Dobinski

could be seen as having launched an instrumentality of harm by

letting her dogs run outside unleashed, thereby creating the

opportunity for them to enter the road and injure the plaintiff. 

But there is a difference between setting in motion a chain of

events, in the course of which an animal acts in a way that

eventually injures someone, and directing the animal to engage in

conduct that causes direct and immediate harm. In the first

situation, the vicious propensities rule applies to the animal's

dangerous behavior. In the second, the fault should be

attributed to the owner. 

I would hold that, where a plaintiff sustains injury as

the direct result of actions that a domestic animal took under

the owner's direction and control, a cause of action in

negligence should lie. An exception to the vicious propensities

- 4 -
- 5 - Nos. 17 & 66

rule is warranted under these circumstances. Indeed, a contrary

rule automatically immunizing animal owners from the consequences

of their own directions is too broad brush, as this situation is

plainly distinguishable from our existing vicious propensities

jurisprudence and contradicts any sensible logic. 

- 5 -
Wolfgang Doerr v Daniel Goldsmith and Julie Smith

No. 17 

Cheryl Dobinski v George O. Lockhart and Milagros Lockhart

No. 66 

FAHEY, J. (dissenting):

In 2006, in Bard v Jahnke (6 NY3d 592), this Court

revised tort law in New York by holding that injuries caused by a

domestic animal are not actionable on a negligence theory. I

believe that Bard was wrongly decided and I would overrule it. 

In departing from a recent precedent it is important to answer

the question: why change? Bard conflicts with prior, more

coherent and sound doctrine. It invites many questions, and has

provoked a demand for the creation of ad hoc exceptions, making a

compelling justification for overruling it. I would take that

step now and declare that the decision should no longer be

followed. We should return to the basic principle that the owner

of an animal may be liable for failure to exercise the standard

of care that a reasonably prudent person would have exercised in

a similar situation. I cannot join the Court's memorandum

opinion and I disagree with the analysis put forward in the

concurring opinion (see concurring op of Abdus-Salaam, J.). 

Accordingly, I dissent.

- 1 -
- 2 - Nos. 17 & 66

I.

Before Bard was decided, our Court's decisions were

consistent with the rule, set out in the Restatement (Second) of

Torts § 518, that a plaintiff whose injuries were caused by a

domestic animal may bring a negligence claim against the owner,

as an alternative to an allegation that the owner is strictly

liable.

Our precedents are illuminating. In Hyland v Cobb (252

NY 325 [1929]), we stated that "negligence by an owner, even

without knowledge concerning a domestic animal's [dangerous]

propensity, may create liability" (Hyland, 252 NY at 326-327,

citing Dickson v McCoy, 39 NY 400 [1868]). The Restatement

principle, similarly, is that "one who possesses or harbors a

domestic animal that he does not know or have reason to know to

be abnormally dangerous, is subject to liability for harm done by

the animal if, but only if . . . he is negligent in failing to

prevent the harm" (Restatement [Second] of Torts § 518 [b]

[1977]).1 

1 The Restatement (Third) of Torts preserves the doctrine: 

"Many animals, while lacking the element of abnormal

danger that justifies strict liability, still involve

some level of risk, especially when the animal is

brought into various societal settings. In light of

that risk, the animal owner can potentially be held

liable under the . . . negligence standard for physical

or emotional harms . . . Thus, the owner of a horse

who takes the horse into a city street can foresee all

kinds of ways in which the horse, if not attended to,

might respond to the instincts common to horses and in

doing so bring about an injury. For example, if

- 2 -
- 3 - Nos. 17 & 66

In Dickson, decided in 1868, the defendant's horse,

which was allowed to roam on a public street, kicked a 10-yearold child in the face. The horse was young and playful, rather

than vicious in nature, but this Court deemed an allegation of

harmful propensities to be unnecessary (see Dickson, 39 NY at

401) and affirmed the trial court's judgment premised on a

negligence-based jury verdict in the plaintiff's favor (see id.

at 403). This Court continued to assume that injuries caused by

a domestic animal are actionable on a negligence theory in

subsequent decisions including Unger v Forty-Second St. & Grand

St. Ferry R.R. Co. (51 NY 497, 500 [1873] [noting that "[a]

person driving horses through a street . . . is bound to exercise

that reasonable degree of diligence and care which a man of

frightened the horse might bolt and injure a person

standing nearby. Accordingly, the owner can be found

negligent for not properly restraining the horse. 

Similarly, the friskiness of dogs can create a variety

of risks that the possessor of the dog, under

negligence law, should make reasonable efforts to

control. The dog's possessor might be aware that

children are playing with the dog in a way that might

induce in the dog a harm-causing response. If so, the

owner can be found negligent for not making a

reasonable effort to intervene. The mere fact that a

dog approaches people in a somewhat threatening way

ordinarily does not suffice to show that the dog is

abnormally dangerous. However, depending on the

circumstances, it may be foreseeable that a frightened

person will suffer injury while attempting rapidly to

retreat. When this is foreseeable, the negligence

standard may require certain precautions on the part of

the owner." (Restatement [Third] of Torts: Liability

for Physical and Emotional Harm § 23, Comment i:

Negligence liability [2010].)

- 3 -
- 4 - Nos. 17 & 66

ordinary prudence and capacity might be expected to exercise

under the same circumstances"]; Hyland, 252 NY at 326-327; and

more recently, Young v Wyman (76 NY2d 1009, 1010 [1990] [holding

that "the mere presence of an unrestrained dog on the street does

not give rise to a presumption of negligence on the part of its

owner" but not questioning the propriety of a negligence cause of

action when based on sound evidence]). 

In Collier v Zambito (1 NY3d 444 [2004]), defendants'

dog bit a 12-year-old guest in defendants' home. The plaintiff

did not assert negligence liability, but rather that defendants

knew or should have known of the dog's vicious propensities. 

This Court noted that a domestic animal that "reflects a

proclivity to act in a way that puts others at risk of harm, can

be found to have vicious propensities" even if its prior behavior

"would not necessarily be considered dangerous or ferocious" (id.

at 447), but held that plaintiff Collier did not raise an issue

of fact concerning the defendants' knowledge of the animal's

harmful propensities (see id. at 447-448). The Court had no

occasion in Collier to consider whether an owner who does not

know his or her animal's harmful propensities can be liable for

negligence.

At the time Bard was decided, three of the Departments

of the Appellate Division recognized that a negligence claim for

animal-induced injuries could be brought as an alternative to a

strict liability claim.

- 4 -
- 5 - Nos. 17 & 66

The First Department held that "in certain limited

circumstances, claims of injury caused by animals may be based

upon a theory of negligence rather than upon the strict liability

resulting from the vicious propensity rule" (Schwartz v Armand

Erpf Estate, 255 AD2d 35, 38 [1st Dept 1999], lv dismissed 94

NY2d 796 [1999]), noting that "[i]n a number of other

jurisdictions, the strict liability rule of vicious propensity is

viewed as co-existing with certain types of claims alleging

negligence in the care and maintenance of an animal that causes

damage" (id. at 37). The Schwartz court held that 

"when young children are known to be present,

the landowner's normal duty, i.e., to

maintain its premises in a reasonably safe

condition in view of all the circumstances,

includes a duty to recognize the danger

created by the presence of horses to which a

small child could easily gain access, which

danger, although obvious to adults, may not

be appreciated by children. This duty may be

satisfied in a number of ways: one might

involve modifying the dangers presented by

altering or adding to the fencing; another

might involve appropriately warning the

children of the risk" (Schwartz, 255 AD2d at

40 [citation omitted]).

The Second Department assumed the existence of

negligence claims for animal-induced injuries in St. Germain v

Dutchess County Agric. Socy. (274 AD2d 146 [2d Dept 2000]),

holding that the plaintiffs demonstrated a triable issue of fact

as to negligence, when the defendants walked a 1000-pound heifer,

not known to have vicious propensities, "along the same path used

by fairgoers when they knew or should have known that heifers are

- 5 -
- 6 - Nos. 17 & 66

generally at risk to be 'spooked' and bolt from their handler"

(St. Germain, 274 AD2d at 149-150). Similarly, in Colarusso v

Dunne (286 AD2d 37 [2d Dept 2001]), the Second Department cited

our decision in Hyland for the proposition that "where the

conduct at issue, although not vicious, results in

reasonably-foreseeable injury, the courts have recognized a right

to recover for common-law negligence" (Colarusso, 286 AD2d at

39). In Colarusso, a three-year-old child hugged a dog owned by

the child's day-care provider, and the dog bit the child just as

the provider was calling out to him to leave the dog alone. The

Second Department held that a jury might charge "[t]he

defendants, as providers of day care services . . . with the

knowledge that a young child such as the plaintiff may interact

with a dog in a fearless manner that befits a child's lack of

capacity to fully understand the foreseeable consequences of such

conduct; that is, that such conduct may be injurious or

threatening to the dog and, if so, that the dog, even a docile

and well-trained one, may instinctively engage in defensive

action such as biting" (id. at 40).

The Third Department, similarly, "recognized that, in

some circumstances, a plaintiff who sustains injury due to the

conduct of an unrestrained dog may pursue a negligence claim

predicated on a defendant's failure to comply with a local animal

control ordinance" (McKee v J&J Otsego Props., 277 AD2d 787, 788

[3d Dept 2000], lv denied 96 NY2d 705 [2001], citing Clo v

- 6 -
- 7 - Nos. 17 & 66

McDermott, 239 AD2d 4, 6 [3d Dept 1998]; see Lecznar v Sanford,

265 AD2d 728, 729 [3d Dept 1999]; Sorel v Iacobucci, 221 AD2d 852

[3d Dept 1995]). Clo is representative. There, the plaintiff

was riding a bicycle along a public road when the defendants' dog

ran out in front of him, striking the bicycle and injuring the

plaintiff. The Third Department ruled that a triable issue of

fact existed "as to whether defendants violated the Town's animal

control ordinance" and whether any such violation "constitute[d]

some evidence of defendants' negligence" (Clo, 239 AD2d at 6). 

As the Third Department later summarized its position, there are

exceptions "under certain limited circumstances" to the rule that

"absent a showing of vicious propensities, a plaintiff may not

recover for injuries sustained in an attack by a dog" (Shaw v

Burgess, 303 AD2d 857, 859 [3d Dept 2003]).

At the time Bard was decided, only the Fourth

Department adhered to a rigid rule that liability for animalinduced injuries "is not dependent upon proof of negligence in

the manner of keeping or confining the animal, but is predicated

upon the owner's keeping of the animal, despite his [or her]

knowledge of the animal's vicious propensities" (Plennert v Abel,

269 AD2d 796, 796 [4th Dept 2000]; see Smith v Farner, 229 AD2d

1017, 1018 [4th Dept 1996]). Yet even the Fourth Department had

not consistently rejected negligence claims in connection with

domestic animals (see e.g. Laylon v Shaver, 187 AD2d 983 [4th

Dept 1992]).

- 7 -
- 8 - Nos. 17 & 66

Based on the cases summarized above, the law in New

York, before Bard was decided, may be distilled as follows. If

you were injured by a dog and you believed the owner had been

negligent in the manner he or she trained, restrained, or

otherwise kept the dog, you could bring a cause of action in

negligence, in addition to a strict liability claim. If you

could prove that the owner had reason to believe the dog, as an

individual animal, had harmful propensities, you could prevail on

the strict liability theory, without having to show negligence. 

However, where there was no evidence that the owner knew or

should have known of the dog's harmful propensities but the

owner's failure to restrain the dog breached a duty of care to a

foreseeable plaintiff, you could, instead, prevail on a

negligence theory. Such a duty of care would exist, for example,

when a reasonably prudent person would recognize a duty to a

person (whether a child, a fairgoer, or a bicyclist) who is

likely not to appreciate, or not to be able to avoid, a

particular risk posed by an animal. The law in New York was

consistent with the Restatement (Second) of Torts § 518.

II.

As the Supreme Court of Connecticut recently noted, "a

large majority of the jurisdictions that have considered the

issue have adopted the approach . . . taken by § 518 of the

Restatement (Second) of Torts" (Vendrella v Astriab Family Ltd.

P’ship, 311 Conn 301, 326-327 [2014]; see id. at 327 n 22). The

- 8 -
- 9 - Nos. 17 & 66

Connecticut court cited Humphries v Rice (600 So 2d 975, 978 [Ala

1992]); Vigue v Noyes (113 Ariz 237, 240 [1976]); Van Houten v

Pritchard (315 Ark 688, 692 [1994]); Drake v Dean (15 Cal App 4th

915, 929 [1993]); Taft v Taft (209 Ga App 499, 500 [1993]);

Farrior v Payton (57 Haw 620, 630 [1977]); Ross v Lowe (619 NE2d

911, 914 [Ind 1993]); Gardner v Koenig (188 Kan 135, 138 [1961]);

Baker v McIntosh (132 SW3d 230, 232 [Ky App 2004]); Moura v

Randall (119 Md App 632, 646, cert denied, 349 Md 495 [1998]);

Trager v Thor (445 Mich 95, 104-105 [1994]); Duren v Kunkel (814

SW2d 935, 938-39 [Mo 1991]); Huber v Timmons (184 Neb 718, 722

[1969]); De Robertis v Randazzo (94 NJ 144, 156 [1983]); Smith v

Ruidoso (128 NM 470, 477 [1999]); Griner v Smith (43 NC App 400,

407 [1979]); Westberry v Blackwell (282 Or 129, 133 [1978]);

Sybesma v Sybesma (534 NW2d 355, 358 [SD 1995]); Dunnings v

Castro (881 SW2d 559, 563 [Tex App 1994]); Arnold v Laird (94 Wn

2d 867, 871 [1980]); Jividen v Law (194 W Va 705, 712 [1995]);

Nelson v Hansen (10 Wis 2d 107, 113-114 [1960]); and Borns ex

rel. Gannon v Voss (70 P3d 262, 270 [Wy 2003]).2

The Connecticut Supreme Court adopted the Restatement

position and held, as a matter of first impression, that " 'one

who possesses or harbors a domestic animal that he does not know

or have reason to know to be abnormally dangerous, is subject to

liability for harm done by the animal if, but only if . . . he is

2 For the opposite proposition, the Connecticut Supreme

Court cited only two cases: our decision in Bard and Searcy v

Brown (607 SW2d 937, 941 [Tex Civ App 1980]).

- 9 -
- 10 - Nos. 17 & 66

negligent in failing to prevent the harm' . . . regardless of

whether the animal was roaming at large" (Vendrella, 311 Conn at

330, quoting Restatement [Second] of Torts § 518 [b]). The court

reasoned that "[t]o conclude otherwise would undermine the policy

considerations governing our tort system which include

compensation of innocent parties, shifting the loss to

responsible parties or distributing it among appropriate

entities, and deterrence of wrongful conduct" (Vendrella, 311

Conn at 330 [internal punctuation omitted]). 

To the Connecticut Supreme Court's lengthy catalog of

decisions recognizing negligence actions for animal-induced

injuries, as listed above, I would add the following rulings:

Swerdferger v Krueger (358 P2d 479, 481 [Colo 1960]); Richmond v

Knowles (265 A2d 53, 55 [Del Super Ct 1970]); Jackman v Hamersley

(240 P2d 829, 830-831 [Idaho 1952]); Whitcanock v Nelson (400

NE2d 998, 1002 [Ill App 1980], overruled on other grounds, as

stated in People v Lyles [217 Ill 2d 210, 217 (2005)]); Klobnak v

Wildwood Hills, Inc. (688 NW2d 799, 801-803 [Iowa 2004]); Henry v

Brown (495 A2d 324, 327 [Me 1985]); Saldi v Brighton Stock Yard

Co. (181 NE2d 687 [Mass 1962]); Ryman v Alt (266 NW2d 504, 508

[Minn 1978]); Ladnier v Hester (98 So 3d 1025, 1028-1029 [Miss

2012]); Hansen v Brogan (400 P2d 265, 267-268 [Mont 1965]);

Sendelbach v Grad (246 NW2d 496, 501 [ND 1976]); and Stout v

Bartholomew (544 SE2d 653, 658-659 [Va 2001]). In all, some 35

states expressly recognize negligence as a distinct, alternative

- 10 -
- 11 - Nos. 17 & 66

theory for animal-induced injuries, of which 18 expressly adopt

or approvingly cite the Restatement (Second) of Torts § 518. 

Other than New York, none of the remaining 15 states has

expressly rejected the Restatement approach. When Bard was

published, New York became " '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" (Bloomer v Shauger, 94 AD3d

1273, 1277 [3d Dept 2012], affd 21 NY3d 917 [2013] [Garry, J.,

dissenting], quoting Miner, Outside Counsel, When Animals Attack

in New York, NYLJ, Feb. 28, 2012, at 4, col 1).

This review of the law of other jurisdictions

identifies New York as a unique outlier in its rejection of the

Restatement (Second) of Torts § 518. 

III.

In Bard, the plaintiff was injured by a bull that was

permitted to roam freely around a dairy barn in order to

impregnate cows. The defendant farm owner, Jahnke, had not

mentioned the bull's presence to plaintiff Bard, a carpenter who

was doing repairs in the barn. Bard submitted the affidavit of

an animal science expert, who opined that "bulls, in particular

breeding bulls, are generally dangerous and vicious animals," and

that the farm owner should have either restrained the bull or

warned Bard of its presence. However, the bull himself had

concededly never before threatened or injured any farm animal or

- 11 -
- 12 - Nos. 17 & 66

any human being. The Court first held that Bard could not

recover under strict liability because the bull "had never acted

in a way that put others at risk of harm" (Bard, 6 NY3d at 597,

citing Collier, 1 NY3d at 447).

Then the Court considered plaintiff Bard's alternative

theory, premised on negligence, that, because the animal was a

breeding bull housed with a herd over which he exercised

dominance, Jahnke was negligent in failing to restrain the bull

or warn strangers of his presence. Plaintiff Bard had relied on

the Restatement (Second) of Torts § 518. More particularly, Bard

had relied on two comments in this section of the Restatement. 

The first, "Knowledge of normal characteristics," notes that

"[i]n determining the care that the keeper of a not abnormally

dangerous domestic animal is required to exercise to keep it

under control, the characteristics that are normal to its class

are decisive, and one who keeps the animal is required to know

the characteristics" (Restatement [Second] of Torts § 518 Comment

g). The second, "Animals dangerous under particular

circumstances," provides that one who keeps a domestic animal is

"required to realize that even ordinarily gentle animals are

likely to be dangerous under particular circumstances and to

exercise reasonable care to prevent foreseeable harm"

(Restatement [Second] of Torts § 518 Comment h).

The Court rejected Bard's reliance on the comments to

the Restatement, on the ground that his theory was "no different

- 12 -
- 13 - Nos. 17 & 66

from arguing that Jahnke was negligent in that he should have

known of Fred's vicious propensities" (Bard, 6 NY3d at 598-599). 

The Court observed that it had never accepted such a theory of

imputed or constructive knowledge of vicious propensity:

"We have never . . . held that particular

breeds or kinds of domestic animals are

dangerous, and therefore when an individual

animal of the breed or kind causes harm, its

owner is charged with knowledge of vicious

propensities. Similarly, we have never held

that male domestic animals kept for breeding

or female domestic animals caring for their

young are dangerous as a class" (id. at 599).

 

Finally, the Court concluded the Bard decision by writing: "In

sum, when harm is caused by a domestic animal, its owner's

liability is determined solely by application of the rule

articulated in Collier" (id.).

The Collier rule, quoted earlier in the Bard opinion,

is "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" (id. at 596-597, quoting Collier, 1 NY3d at 446). 

Taken in context, a reader would naturally interpret the

concluding sentence of Bard to mean that if a plaintiff alleges

that a defendant either knew or should have known of his or her

domestic animal's harmful propensities, the plaintiff must show

the defendant's knowledge of the individual animal's harmful

propensities, not merely the dangerous propensities of its breed

or class. On this view, the Court was simply rejecting Bard's

- 13 -
- 14 - Nos. 17 & 66

appeal to the Restatement (Second) of Torts § 518 Comments g and

h, and their theory of imputed knowledge. However, it is clear

that the Bard Court intended a much more restrictive meaning. As

the dissenting Judges saw it, the majority adopted the rule "that

the strict liability involved in Collier is the only kind of

liability the owner of a domestic animal may face – that, in

other words, there is no such thing as negligence liability where

harm done by domestic animals is concerned" (Bard, 6 NY3d at 601

[R. S. Smith, J., dissenting] [emphasis added]). That is the

legacy of the Bard decision. The Bard Court reached this

significant transformation of the law without any discussion of

policy ramifications or history of prior, apposite jurisprudence. 

Bard cited only Collier, a decision that did not mention a common

law negligence cause of action because the plaintiff had not

asserted one.

IV.

Less than two years later, the Court reiterated that

"[i]n Bard v Jahnke . . ., we held that 'when harm is caused by a

domestic animal, its owner's liability is determined solely by

application of the rule articulated in Collier' " (Bernstein v

Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008], quoting Bard,

6 NY3d at 599). In Bernstein, the eight-year-old plaintiff

visited a toy store and went over to pet the defendant owner's

dog. The defendant told the child's adult care-giver that the

dog was friendly, and the child scratched the dog behind his ear,

- 14 -
- 15 - Nos. 17 & 66

patted his back, hugged him, and kissed him. Suddenly, the dog

growled and bit the child's right cheek, once, causing

disfiguring injury. The Bernstein plaintiffs conceded that there

was no evidence of vicious propensities on the dog's part, but

contended that the defendants owed an enhanced duty toward the

eight-year-old plaintiff because the presence and actions of

children on the toy store premises was reasonably foreseeable. 

This Court upheld the dismissal of the complaint in a terse

Memorandum Opinion, casting the plaintiffs' negligence cause of

action aside entirely, on the basis that Bard proscribed such

claims, and dismissing the complaint because there was no

evidence that the dog's "owner had any knowledge of its vicious

propensities" (Bernstein, 10 NY3d at 788).

It is a measure of the degree to which this Court's

holding in Bard was questioned that, even after Bernstein, the

Appellate Division could not bring itself to accept that Bard

stood for the proposition "that a defendant's prior notice of

'vicious propensities' is an absolute sine qua non to civil

liability in all actions involving personal injuries caused by

domestic animals" (Petrone v Fernandez, 53 AD3d 221, 228 [2d Dept

2008]). In Petrone, the plaintiff, a mail carrier, was on a

public street, approaching a house to deliver the mail, when she

noticed a rottweiler lying on the lawn of the unfenced property. 

The dog was not restrained in any way. As she was walking back

to her car, the plaintiff turned to look at the dog and saw that

- 15 -
- 16 - Nos. 17 & 66

it was running toward her. She began to flee, and was injured as

she threw herself into her vehicle through an open window. 

Plaintiff Petrone brought a common law negligence claim, alleging

that the defendant owner violated New York City Health Code §

161.05 (a) (24 RCNY 161.05 [a] [requiring dog owners to restrain

dogs in public places]) and as a result was negligent in allowing

the rottweiler to chase the plaintiff on a public street. The

Appellate Division declined to apply Bard, noting that Bard and

Collier were not concerned with, "and did not need to address,

the question of whether negligence involving the violation of a

leash law can result in liability when an unleashed dog engages

in a chase that proximately causes injury" (Petrone, 53 AD3d at

228). The Appellate Division reinstated the plaintiff's common

law negligence claim, holding that the owner of a dog may be

liable in negligence based on violation of a local leash law, in

a case where strict liability based on vicious propensities is

not alleged. 

This Court reversed in Petrone, invoking the Bard

dissent's description of the Bard rule as being "that the strict

liability involved in Collier is the only kind of liability the

owner of a domestic animal may face – that, in other words, there

is no such thing as negligence liability where harm done by

domestic animals is concerned" (Petrone v Fernandez, 12 NY3d 546,

550 [2009], quoting Bard, 6 NY3d at 601 [R. S. Smith, J.,

dissenting]). Like Bard and Bernstein, Petrone is devoid of

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- 17 - Nos. 17 & 66

analysis of any policy grounds or prior precedents supporting

Bard's revision of the law. Also striking is that two Judges of

this Court believed strongly enough that Bard had been wrongly

decided that the one wrote, and the other joined, a concurring

opinion, emphasizing that they were constrained by Bard's holding

but vigorously disagreed with it (see Petrone, 12 NY3d at 551-552

[Pigott, J., concurring]).

More recently, this Court reviewed a case that tested

the limits of its restrictive holding on actions alleging

negligence by an animal owner. In Hastings v Sauve (21 NY3d 122

[2013]), plaintiff Hastings was driving on a rural road in

Franklin County when she struck a cow, which had strayed from a

pasture, owned by defendant Sauve, immediately adjacent to the

road. The pasture was surrounded by a wire fence that was in

disrepair. Hastings alleged that Sauve was negligent in failing

to control the cow and allowing it to enter the roadway. The

Appellate Division upheld Supreme Court's dismissal of the

plaintiff's complaint against Sauve and another defendant, but

expressed its discomfort with Bard at length. 

"While we are obligated to affirm Supreme

Court's dismissal . . . , we must note our

discomfort with this rule of law as it

applies to these facts – and with this

result. There can be no doubt that the owner

of a large animal such as a cow or a horse

assumes a very different set of

responsibilities in terms of the animal's

care and maintenance than are normally

undertaken by someone who owns a household

pet. The need to maintain control over such

a large animal is obvious, and the risk that

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- 18 - Nos. 17 & 66

exists if it is allowed to roam unattended

onto a public street is self-evident and not

created because the animal has a vicious or

abnormal propensity. Here, plaintiff was

injured not because the cow was vicious or

abnormal, but because defendants allegedly

failed to keep it confined on farm property

and, instead, allowed it to wander unattended

onto the adjacent highway in the middle of

the night, causing this accident. The

existence of any abnormal or vicious

propensity played no role in this accident,

yet, under the law as it now exists,

defendants' legal responsibility for what

happened is totally dependent upon it. For

this reason, we believe in this limited

circumstance, traditional rules of negligence

should apply to determine the legal

responsibility of the animal's owner for

damages it may have caused. However, it is

not for this Court to alter this rule and,

while it is in place, we are obligated to

enforce it." (Hastings v Sauve, 94 AD3d

1171, 1173 [3d Dept 2012].)

This Court reversed, holding that Bard "does not bar a

suit for negligence when a farm animal has been allowed to stray

from the property where it is kept" (Hastings, 21 NY3d at 124). 

The difference, the Court now suggested, is that Bard and its

progeny had "involve[d] aggressive or threatening behavior by

an[] animal," whereas Hastings involved a claim "that a farm

animal was permitted to wander off the property where it was kept

through . . . negligence" (id. at 125). "To apply the rule of

Bard — that 'when harm is caused by a domestic animal, its

owner's liability is determined solely' by the vicious propensity

rule — in a case like this would be to immunize defendants who

take little or no care to keep their livestock out of the roadway

or off of other people's property" (id., quoting Bard, 6 NY3d at

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- 19 - Nos. 17 & 66

599 [citation omitted]). In other words, the Court of Appeals

now held that when the Bard Court used the word "solely," it did

not mean "solely," and the Court created an ad hoc exception to

Bard, for farm animals that stray. The prediction of the Bard

dissenters that the decision had created "an archaic, rigid rule,

contrary to fairness and common sense, that will probably be

eroded by ad hoc exceptions" (Bard, 6 NY3d at 599 [R. S. Smith,

J., dissenting]) had come true.

V.

"It is well settled that '[s]tare decisis is the

preferred course because it promotes the evenhanded, predictable,

and consistent development of legal principles, fosters reliance

on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process' " (People v Taylor,

9 NY3d 129, 148 [2007], quoting Payne v Tennessee, 501 US 808,

827 [1991]). I have no quarrel with the statement that the

mission of a high court would be undermined if judges "cast aside

or chip away at those rulings with which they simply disagree"

(concurring op at 37). But there is much more to my rationale

for dissent here than mere disagreement. A decision may be

overruled, no matter how recent or how long-lived, "when there is

a compelling justification for doing so" (People v Peque, 22 NY3d

168, 194 [2013], quoting People v Lopez, 16 NY3d 375, 384 n 5

[2011]). A court may overrule a precedent "when persuaded by the

'lessons of experience and the force of better reasoning' "

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- 20 - Nos. 17 & 66

(People v Bing, 76 NY2d 331, 338 [1990]), quoting Burnet v

Coronado Oil & Gas Co., 285 US 393, 407-408 [1932] [Brandeis, J.,

dissenting]) and there is no requirement that a patent judicial

mistake be allowed to "age" before it may be corrected. The

holding in Bard that liability for animal-induced injuries cannot

be based on negligence not only "creates more questions than it

resolves" (Taylor, 9 NY3d at 149, citing Bing, 76 NY2d at 347),

but also "involves collision with a prior doctrine more embracing

in its scope, intrinsically sounder, and verified by experience"

(People v Hobson, 39 NY2d 479, 487 [1976], quoting Helvering v

Hallock, 309 US 106, 119 [1940]). The sounder doctrine is the

Restatement position. 

The "troublesome" consequences of Bard "on our

jurisprudence" (Bing, 76 NY2d at 348) were clear early on. In

2007, in Bernstein, two Justices of the First Department pleaded

for a less restrictive understanding of Bard, noting that they

could "not view Bard v Jahnke as eradicating the continued

viability of prior cases which impose an enhanced duty toward

children upon property owners who keep animals, where the

presence and actions of children on the premises are reasonably

foreseeable" (Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224,

227 [1st Dept 2007] [Saxe, J., dissenting in part]). The

following year, in Petrone, the Second Department, noting that

Bard was inconsistent with this Court's language in Hyland,

essentially treated the remarks in Bard about common-law

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- 21 - Nos. 17 & 66

negligence as dicta (see Petrone, 53 AD3d at 225-226, 228). In

2012, in Hastings, the Third Department, while applying Bard,

expressed its strong misgivings concerning that ruling, as noted

above (Hastings, 94 AD3d at 1173; see Bloomer, 94 AD3d at 1274

[noting that the Third Department was "constrained to view this

matter solely in the context of strict liability"]). 

In addition, our trial courts have expressed serious

discomfort with Bard (see e.g. Krieger v Cogar, 26 Misc 3d 1225

[A] [Sup Ct, Niagara County 2010]), distinguished the case (see

e.g. Jetter v Hall, 20 Misc 3d 306, 308-309 [Sup Ct, Monroe

County 2008]), or attempted to use the Hastings exception as a

means of alleviating the limits of Bard (see e.g. Cappellino v

Lake Huntington Summer Community Inc., 46 Misc 3d 486, 490-491

[Sup Ct, Kings County 2014] [interpreting Hastings "as broadly

applicable and intending to cover incidents of obvious animal

owner negligence that would otherwise go unguarded against under

Bard's vicious propensity - strict liability scheme of

liability"]). 

This strong inclination on the part of lower courts to

carve out exceptions to Bard was of course exemplified again in

Doerr. The First Department held, on reargument after our Court

decided Hastings, that ordinary negligence principles apply if a

case "is about the actions of a person that turn[] an animal into

an instrumentality of harm" (Doerr v Goldsmith, 110 AD3d 453, 455

[1st Dept 2013]). The sentiment is echoed in the Chief Judge's

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- 22 - Nos. 17 & 66

proposed exception to Bard that "where a plaintiff sustains

injury as the direct result of actions that a domestic animal

took under the owner's direction and control, a cause of action

in negligence should lie" (op of Lippman, C.J., dissenting in

Doerr v Goldsmith and concurring in Dobinski v Lockhart at 4-5).3

The Bard decision has created more questions than it resolved.

VI.

Nevertheless, the Court now reasserts Bard, and

declines to extend Hastings, despite the striking similarities

between Hastings and one of the cases before us, Dobinski v

Lockhart. In my view, Dobinski raises the same question whether

"a landowner or the owner of an animal may be liable under

ordinary tort-law principles" when his animal, usually kept on

his farm, "is negligently allowed to stray from the property on

which the animal is kept" (Hastings, 21 NY3d at 125-126). In

Dobinski, just as in Hastings, to invoke Bard's restrictive rule

is "to immunize defendants who take little or no care to keep

their [animals] out of the roadway" (id. at 125). Applying Bard

gives dog owners no incentive under the tort law to exercise

reasonable and cost-effective care over their animals so as to

prevent the risk of accidents such as what occurred to plaintiff

3 Notably, the concurring opinion does not rule out the

possibility that an exception to Bard would apply when a

defendant's supervision of a dog or other domestic animal is

"undertaken with the intent to cause harm to another or with

conscious disregard of a known and unjustifiable risk of harm to

another" (concurring op at 38 n 4).

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- 23 - Nos. 17 & 66

Dobinski in Franklinville.

The concurring opinion now supplies, for the first

time, some discussion of the policy considerations missing from

Bard and its immediate progeny, opining that "[a]bsent awareness

of a domestic animal's previously demonstrated tendency to harm

others, the owner should not bear the costs of the animal's

instinctive decisions" (concurring op at 36). This reasoning

loses sight of the fact that it is the owners of domestic

animals, and only their owners, who have the "expertise and

opportunity to foresee and control hazards, and to guard properly

against their own negligence and that of their agents and

employees" (Vendrella, 11 Conn at 324 [square brackets and

citation omitted]). This is as true of the owners of dogs as it

is of those who own horses and other farm animals. 

Fundamentally, just as "a farm owner's decision to allow his or

her farm animals to wander freely onto a public road or someone

else's property . . . as a commonsense matter violates societal

expectations in a manner that gives rise to negligence liability"

(concurring op at 20), so his or her decision to allow dogs to

wander freely onto a public road should give rise to negligence

liability. There is no logical difference. Certainly dogs are

less "difficult to train to remain on one's premises of their own

accord" (id. at 20) than farm animals, which typically must be

fenced in, but that only spotlights the nature of the negligence

of one who fails to train his or her dogs not to stray.

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- 24 - Nos. 17 & 66

The concurring opinion argues that "[t]he average New

Yorker knows or ought to know that he or she will encounter

insufficiently restrained pets, which are not confined to the

owner's premises and may harm others depending on the disposition

of the pet and the degree of training it has received"

(concurring op at 21-22). Perhaps this is a reference to an

encounter such as occurred to plaintiff Doerr in Central Park,

where the pet that caused injury was in the company of its owner. 

It is certainly not true, either in Franklinville or in

Manhattan, that the average citizen expects to encounter

unrestrained and unaccompanied dogs, running loose among traffic,

that may either keep to themselves or else "harm others depending

on . . . disposition . . . and . . . training" (id.). The

ubiquity of "ordinance[s] restricting dogs from running at large.

. . . suggest[s] that, whatever may have been the expectation in

an earlier, more agricultural age, it is no longer expected that

dogs will roam the highways of this State at will" (Young, 76

NY2d at 1012 [Kaye, J., dissenting]).

I would adopt the Restatement doctrine: that even if

the owner of a domestic animal has no reason to believe the

animal abnormally dangerous, the owner will still be subject to

liability for harm done by the animal if he or she is negligent

in failing to prevent that harm. This is a clear, reasonable and

equitable rule that reflects the law in most states and

corresponds to the majority position in New York before Bard.

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- 25 - Nos. 17 & 66

Accordingly, in Doerr, I would affirm the order of the

Appellate Division that affirmed Supreme Court's order denying

defendant's motion for summary judgment. In Dobinski, I would

reverse the order of the Appellate Division that reversed Supreme

Court's order denying defendants' motion for summary judgment. 

There are triable issues of fact concerning defendants'

negligence, given their practice of allowing their dogs to run at

large without a leash (see Town of Franklinville Local Law

Relating to the Control, Confining and Leashing of Dogs §§ 5 [a],

4 [g] [2005]), the proximity of their farm to a busy road, and

their habit of encouraging the dogs to run behind wheeled

vehicles, in the form of their "four-wheeler" all-terrain

vehicles. Consequently, defendants' summary judgment motion

should have been denied in Dobinski.

* * * * * * * * * * * * * * * * *

For Case No. 17: Order reversed, with costs, defendant Smith's

motion for summary judgment dismissing the complaint granted and

certified question answered in the negative, in a memorandum. 

Judges Read, Rivera, Abdus-Salaam and Stein concur, Judge

Abdus-Salaam in a concurring opinion in which Judges Read and

Stein concur. Chief Judge Lippman dissents in an opinion. Judge

Fahey dissents in a separate dissenting opinion, in which Judge

Pigott concurs.

For Case No. 66: Order affirmed, with costs, in a memorandum. 

Chief Judge Lippman and Judges Read, Rivera, Abdus-Salaam and

Stein concur, Judge Abdus-Salaam in a concurring opinion in which

Judges Read and Stein concur, and Chief Judge Lippman in a

separate concurring opinion. Judge Fahey dissents in an opinion

in which Judge Pigott concurs.

Decided June 9, 2015

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