Page 32 - WCBA Appellate Practice Committee CLE May 2024-Handout

The plaintiff also argued that the restaurant defendants owed a duty of care to their patrons since they
encouraged and permitted dogs on the premises and failed to show that they undertook any acts to
assess whether any such dogs posed a risk of injury to other persons. The plaintiff noted that the
incident occurred on the 4th of July weekend and that the restaurant was crowded and noisy and thus,
according to the plaintiff, the risk of injury created by these conditions was foreseeable. The Supreme
Court denied the restaurant owners’ motion for summary judgment dismissing the complaint and all
cross-claims insofar as asserted against them. The court found that the restaurant defendants had
established their prima facie entitlement to judgment as a matter of law by demonstrating that they had
no knowledge of the dog’s vicious propensities. However, the court determined that, pursuant to
Hewitt, the plaintiff had alleged a viable cause of action in ordinary negligence and that there were
triable issues of fact as to the duty of the restaurant owners to their patrons and the foreseeability of
the injury. Generally, the owner of a domestic animal who either knows or should have known of that
animal’s vicious propensities will be held strictly liable for the harm the animal causes as a result of
those propensities. Evidence tending to prove that a dog has vicious propensities includes a prior attack,
the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a
proclivity to act in a way that puts others at risk of harm. Strict liability for damages arising from the
vicious propensities and vicious acts of an animal has been extended to a person who harbors the
animal, but does not own it. Liability can be established where the defendant owned, possessed,
harbored, or exercised dominion and control over the dog. The Court of Appeals has held that a dog
owner’s liability is determined solely by the vicious propensity rule, declining to permit a parallel
negligence claim. However, in Hewitt v Palmer Veterinary Clinic, PC, (35 NY3d 541) , the Court of Appeals
determined that causes of action alleging negligence against defendants who did not own the animal
that caused injury may lie where the defendant has specialized knowledge about the animal. Here, this
Court rejected the plaintiff’s contention that Hewitt (35 NY3d 541) required that a standard negligence
analysis should be applied in considering the liability of a non-pet owning premises owner for persons
injured by animals on such premises. This Court found that, to the extent that Hewitt applied an
ordinary negligence standard without the vicious propensities notice requirement, it was specific to
situations where a defendant may have specialized knowledge relating to animal behavior. This Court
determined that, in Hewitt (35 NY3d 541) , the Court of Appeals relied upon the specialized knowledge
and experience of the defendant veterinary office concerning animal behavior. This Court noted that
such specialized knowledge and experience cannot be reasonably expected of all property owners
merely because such owners permit animals onto their premises. Hewitt (35 NY3d 541) does not stand
for the proposition that the vicious propensities notice requirement no longer applies in negligence
actions against property owners where the alleged injuries were caused by a domesticated animal. Here,
this Court found that the factual circumstances alleged in this case did not comport with the facts in
Hewitt (35 NY3d 541) nor did the Court of Appeals intend to eliminate the vicious propensities notice
requirement. Here, the restaurant owners established, prima facie, their lack of knowledge of any
vicious propensities of the dog at issue and that they exercised reasonable care to avoid exposing the
plaintiff’s infant to unreasonable harm. The plaintiff failed to raise a triable issue of fact in that she failed
to demonstrate that the restaurant owners had notice of any facts which would present unreasonable
harm or warrant further action. The plaintiff did not offer any evidence that hot weather, noise, and
crowds increased the risk of aggressive pet behavior or that this amounted to the type of specialized
knowledge at issue in Hewitt (35 NY3d 541). Accordingly, this Court found that the Supreme Court

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