Full Case Name:  Steven Bates, Plaintiff v. Anthony Constable, Defendant

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Country of Origin:  United States Court Name:  Supreme Court, Seneca County, New York Primary Citation:  781 N.Y.S.2d 861 (N.Y. 2004) Date of Decision:  Tuesday, July 27, 2004 Judge Name:  Dennis F. Bender, Jr. Jurisdiction Level:  New York Alternate Citation:  781 N.Y.S.2d 861 (N.Y. 2004) Judges:  Dennis F. Bender Jr. Attorneys:  Michaels & Smolak, PC, Michael J. Bersani, Esq., of counsel, for Plaintiff; Costello, Cooney & Fearon, PLLC, Daniel P. Fletcher, Esq., of counsel, for Defendant

A son obtained a dog from defendant for his father to have as a pet.  The dog bit the father and the father sued defendant for failing to warn him of the dog's vicious propensities.  The Court held the defendant did not owe the second transferee of the dog a duty to warn and granted summary judgment in favor of defendant.

The plaintiff in this case alleges he was seriously injured when bitten by a rottweiler dog given to him by his son the previous day. He further alleges that his son had previously been given the dog by the defendant, who never warned the plaintiff or the son of the dog's known vicious propensities. Pursuant to answers provided by the plaintiff to interrogatories, the defendant also knew the son intended to give the dog to the plaintiff for a pet. The son is not a party to the action.

The Complaint alleged four causes of action founded, respectively, in strict liability, a negligent failure to warn, a breach of implied warranties, and fraud.

The defendant now moves for Summary Judgment dismissing the Complaint in its entirety. In response, the plaintiff consents, excepting for the cause of action alleging a failure to warn under a theory of negligence. Specifically, the plaintiff argues that a dog's owner has a duty to warn of known vicious propensities upon transfer of the animal, and that liability for a breach of this extends not only to the immediate transferee, but subsequent owners as well. The defendant argues in essence that lack of ownership of the dog at the time it attacks someone precludes a finding of any liability. Both parties indicate they could not find any case law addressing this specific issue by the New York courts. [FN1]

FN1. The defendant cited Bukhatetsky v. Vysotski, 296 A.D.2d 367, 745 N.Y.S.2d 53 (2nd Dept., 2002) in support of its motion. The only issue in Bukhatetsky however, was whether the appellants still owned a dog and were thus strictly liable, as a result of their failure to notify authorities of its transfer in accordance with Agriculture and Markets Law section 113.

The question of whether a duty was owed is one of law for the court to answer. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 288-289, 750 N.E.2d 1097. Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128. Was it owed here, the defendant thus being liable for his passive failure to warn?

Cases from elsewhere hold that not only did the defendant owe no duty to the plaintiff, but that none was even extended to the plaintiff's son. As stated in Charowsky v. McGovern, 68 Sch. L.R. 166 (Pa.Com.Pl., 1972), an unpublished Pennsylvania decision cited by the defendant,

"the gravamen of plaintiff's complaint is simply that knowledge alone by a dog owner of his vicious tendencies at the time its ownership is transferred to another is sufficient to make the former owner responsible for subsequent acts of the dog, even though it is then owned, harbored and controlled by the new owner. The plaintiffs cite no cases in support of their complaint and we have found none. However, we are of the opinion that the law does not go this far." Supra, p. 168.

The Charowsky court did not unfortunately, state why it is of that opinion.

The defendant's position is further supported by the matter of Koepke v. Martinez, 84 S.W.3d, 393 (Court of Appeals of Texas). In that case, ownership of a dog was transferred a day before the dog attacked a caretaker feeding the dog on behalf of the new owners. There, the court concluded

"The gist of an action brought to recover for injuries caused by a domestic animal, resulting from other than [one in strict liability for] known vicious propensities, is usually negligence of the owner or keeper in the keeping or handling of the animal. (Citations omitted.) Therefore, appellees were required to prove that Koepke was the owner or keeper of [the dog] at the time of the incident, and that he negligently handled [it].... Because Koepke was neither the owner or the handler of [the dog] at the time of the incident, he owned no duty to appellees." Supra, p. 396.

At least one situation exists in New York however, where liability for the actions of a domestic animal by one other than the owner has been found. A landlord, aware of the vicious propensities of a tenant's dog, has a duty to take reasonable steps to insure the public is protected from the animal. Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13. While noting that the landlord was not strictly liable, the Court of Appeals held that the owner of the property, if aware of the dog's vicious propensities at the time it leased the property to the dog's owner, "could be found affirmatively to have created the very risk which was reasonably foreseeable and which operated to injure plaintiff." Supra at 575, 479 N.Y.S.2d 175, 468 N.E.2d 13. The landlord thus had a duty to take "reasonable care in her arrangements with the tenant to protect third persons from injury." Supra at 577, 479 N.Y.S.2d 175, 468 N.E.2d 13.

Logic would suggest that the immediate grantee of a dog, whether for consideration or not [FN2], has the right to be warned of vicious propensities of the dog known to the grantor. Eiseman v. State of New York, supra at 188-189, 518 N.Y.S.2d 608, 511 N.E.2d 1128. Imposing a duty to warn would place no burden upon the grantor, and would serve to easily avoid a risk of harm which would, absent notice, be much more likely to occur. (See generally 79 New York Jur.2d, Negligence, section 17, "Factors Considered in Determining Existence of Duty"; pp. 356-358). Imposition of such a duty would also serve public policy, which is "the appropriate frame of reference for determination of tort liability in situations newly confronted by the courts ...". Strunk v. Zoltanski, supra at 576, 479 N.Y.S.2d 175, 468 N.E.2d 13.

FN2. "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all [cites omitted]." Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, (1922).

Even if such a duty was found however, whether it should extend to subsequent transferees is questionable. Forseeability of a danger alone is not sufficient to establish a duty. Eiseman v. State of New York, supra at 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128; Echorst ex rel. Echorst v. Kaim, 288 A.D.2d 595, 732 N.Y.S.2d 285 (3rd Dept., 2001), Vogel v. West Mountain Corp., 97 A.D.2d 46, 50, 470 N.Y.S.2d 475 (3rd Dept., 1983). And while "the duty of an actor to exercise care in the performance of an obligation due to another may inure to a third person under certain circumstances" (Harriman v. N.Y.C. & St. L.R.R. Co., 253 N.Y. 398, 403, 171 N.E. 686 (1930)), this court has found no case in which a duty was found where there was not some remaining nexus between the defendant and the cause of the injury, or between the defendant and the plaintiff. In the Strunk case cited above for example, it is reasonable to say that no matter how dangerous the dog was, no liability would have been found on the landlord's part had she sold rather than rented the property to the dog's owner.

In conclusion this court determines as a matter of law that even if a duty to warn may have extended to the plaintiff's son, none was owed to the plaintiff. No current or even past relationship existed between them, and there was no remaining control over the dog by the defendant. Further, aside from this lack of any nexus between the parties, extension of the duty to subsequent owners is simply impractical. If a duty extended out to the second of subsequent owners, then why not to three, five or ten? What would be the effect of the knowledge and actions of intervening owners? Would not all intervening owners be necessary parties? The courts have an obligation "to consider the larger social consequences of our decisions and to tailor our notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree' " (cites omitted)". Eiseman v. State of New York, supra at 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128. In this court's view, to allow a duty to be found in this case would require the court to violate that obligation.

The motion for Summary Judgment dismissing the Complaint in its entirety is granted, without costs.


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