New York’s highest court (the Court of Appeals) recently held a veterinary clinic liable for negligence, bringing the state a little bit closer to fairness for dog bite victims. A worker in the clinic negligently mishandled a dog which just had surgery, allowing the dog to be uncontrolled in the clinic’s waiting area, where it tried to attack a cat and ended up seriously injuring the cat’s owner. The lower NY courts threw out the lawsuit brought by the injured woman, ruling she could win her case only by proving the clinic knew the dog had the vicious propensity to bite a person. There was no such proof.
The Court of Appeals reversed the lower courts, however, based on numerous prior decisions holding that negligence principles are a valid grounds to sue provided that the defendants are not the owners of the attacking dogs. The case is Marsha Hewitt v. Palmer Veterinary Clinic, PC (Court of Appeals of NY, October 22, 2020, to be published in the official reports in the near future). Ms. Hewitt’s lawyer was Mark Schneider of Plattsburgh.
Here’s the rub: the Court of Appeals is still saying that the negligence doctrine does not apply to dog owners, which was the Court’s opinion in the infamous case of Bard v. Jahnke (6 NY3d 592 ). In plain talk, Bard held that there is no such thing as dog owner negligence in the State of New York. The Bard rule is an absurdity which no American and no New Yorker believes except for 4 of the justices of New York’s highest court. There are 3 of the 7 justices on the Court of Appeals, plus a phalanx of other appellate judges in New York, who have railed against the Bard decision, but their cry for fairness and common sense has fallen on deaf ears not only at the Court of Appeals but also in the New York Legislature.
In 2015 I became involved in a legislative attempt to correct the Bard decision. State Senator Robert J. Ortt (R-Dist. 62) asked me to propose revisions of the New York statutes involving dog bite liability, and I responded with a draft of a bill that would have brought New York law in alignment with two-thirds of American states, including both “red states” and “blue states.” For the past 5 years, however, Sen. Ortt’s bill has been pending with no decision in sight, having gone from one committee to another.
During that time, numerous New York dog attack victims have suffered serious injuries or death but have been denied justice because of the Court of Appeals badly reasoned, illogical, contrarian, common-sense defying, shameful decision in Bard v. Jahnke. Until that decision is overturned, it will be the taxpayers and health insurance companies who will bear the costs stemming from all of the dog attacks in New York that don’t satisfy Bard’s prerequisites. And as for the victims, they will continue to suffer physically and mentally without fair compensation.
Congratulations to Ms. Hewitt for pushing New York law a bit closer to providing justice for the victims of dog attacks and the families of New Yorkers who are killed by dogs. Shame on the New York Court of Appeals for not using the Hewitt case to announce that your unfair, judge-made rule in Bard v. Jahnke should no longer be followed.