THE LAW OF PETS

Hewitt v. PALMER VETERINARY CLINIC, PC, 2020 NY Slip Op 5975 - NY: Court of Appeals October 22, 2020:

"Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, plaintiff Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla's leash back to her owner, Vanilla saw plaintiff's cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.

Several months later, plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident.^[1] As relevant here, the complaint alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an "agitated, distressed" dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state. Palmer answered, generally denying the allegations and asserting various affirmative defenses, including that the clinic was entitled to have any liability apportioned between itself and the dog's owner under CPLR article 16.

Plaintiff subsequently filed supplemental bills of particulars, wherein she alleged that the clinic was negligent in bringing an agitated and aggressive dog into the waiting room and for failing to adjust the dog's collar to prevent it from getting loose. She also alleged—for the first time—that Palmer was negligent "in not giving an effective pain medication and/or anesthesia to the dog" and "in not following the standard of care [for] dogs after surgery." Thereafter, plaintiff moved to strike Palmer's CPLR article 16 defense, and Palmer cross-moved to strike plaintiff's supplemental bills of particulars.

Supreme Court agreed with Palmer that plaintiff's allegations regarding the lack of anesthesia and the alleged failure to follow the accepted standard of care for surgery "expand[ed] the theory for recovery based on the medical care that Palmer rendered to the dog, for which there was no notice in the [c]omplaint." Thus, Supreme Court struck those portions of the supplemental bills of particulars and denied the remainder of Palmer's motion. In addition, Supreme Court denied plaintiff's request to strike Palmer's apportionment defense.

Palmer eventually moved for summary judgment dismissing plaintiff's complaint in its entirety, asserting that it had no prior knowledge of Vanilla's vicious propensities and that such knowledge was a condition predicate to its liability. In support of its motion, Palmer proffered excerpts from the depositions of the veterinarian that treated Vanilla, the clinic's manager, the dog's owner, and plaintiff herself. Palmer asserted that these materials demonstrated that it lacked any notice of Vanilla's alleged vicious propensities.

Plaintiff opposed Palmer's motion for summary judgment and cross-moved for partial summary judgment, arguing that Palmer could be held liable in negligence despite a lack of knowledge of Vanilla's vicious propensities. In support of her motion, plaintiff submitted an affidavit from a veterinary behaviorist and anesthesiologist, who opined that the incident was foreseeable and avoidable through various measures and that Palmer failed to use due care to prevent plaintiff's injury. In response, Palmer submitted an affidavit by its veterinarian majority owner, who asserted that Vanilla's treatment and discharge did not deviate from the accepted standard of care.

Supreme Court granted Palmer's motion for summary judgment, reasoning that Palmer's liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. Upon plaintiff's appeal, the Appellate Division affirmed, with one Justice dissenting in part (167 AD3d 1120 [3d Dept 2018]). The Appellate Division concluded that Palmer could not be held liable without notice of an animal's vicious propensities, relying on our precedent dismissing claims against animal owners in the absence of proof of such notice (see generally Doerr v Goldsmith, 25 NY3d 1114, 1116 [2015]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444, 446 [2004]). The Appellate Division also rejected plaintiff's additional claims that the court erred by striking certain allegations from her bills of particulars and declining to strike Palmer's apportionment defense. We granted plaintiff leave to appeal, and now modify the order below by denying Palmer's motion for summary judgment.

Plaintiff does not dispute that, under existing precedent, an owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal's vicious propensities (see Collier, 1 NY3d at 446). "Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities" (id. at 448). We have explained that an "[o]wner's liability is determined solely by application of the [vicious propensity] rule," declining to permit a parallel negligence claim in such context (Bard, 6 NY3d at 599; see Petrone v Fernandez, 12 NY3d 546, 550 [2009]). Neither party in this case has asked us to overrule Bard, nor is that line of precedent concerning animal owners directly implicated here.^[2] Plaintiff argues, however, that this rule does not—and should not—apply to Palmer, a veterinary clinic. We agree.

The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard (see Strunk v Zoltanski, 62 NY2d 572 [1984]). However, we have recognized that other competing policies and contemporary social expectations may be at play in certain instances where domestic animals cause injuries. For example, we held that the owner of a farm animal "may be liable under ordinary tort-law principles" when that farm animal is allowed to stray from the property on which it is kept (Hastings v Sauve, 21 NY3d 122, 125-126 [2013]).

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff's claim. To be sure, "[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability" as the owner of a domestic animal (Strunk, 62 NY2d at 575-576). However, we are satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer's lack of notice of Vanilla's vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must (see Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]), questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment.

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