Supreme Court, Appellate Division, Third Department, New York
Bard v. Jahnke
791 N.Y.S.2d 694 (N.Y. 2005)
A subcontractor of a carpenter was performing work at a dairy farm. The subcontractor was injured when he was pinned up against a stall by a bull that was allowed to roam free for the purposes of impregnating cows. The subcontractor brought claims against the dairy farm and carpenter for negligence and strict liability. The trial court granted summary judgment in favor of the defendants. The Court of Appeals affirmed the trial court reasoning the subcontractor had failed to prove the owner or carpenter knew or should have known of the bull's violent tendencies.
delivered the opinion of the court.
Opinion of the Court:
Appeal from an order of the Supreme Court (Monserrate, J.), entered December 26, 2003 in Otsego County, which granted defendants' cross motions for summary judgment dismissing the complaint.
In September 2001, defendant Reinhardt Jahnke owned a dairy farm in Otsego County on which defendant John Timer, a self-employed carpenter, had been performing various jobs for some years. On September 26, 2001, plaintiff Larry Bard (hereinafter plaintiff), also a self-employed carpenter, agreed to do some subcontract work for Timer on the farm. While working inside the main dairy barn, plaintiff was pinned against a stall by a bull that had been permitted to roam the barn unrestrained so as to impregnate cows. Plaintiff and his wife, derivatively, commenced this action, sounding in strict liability and negligence, to recover for his injuries. At issue is an order of Supreme Court granting summary judgment in favor of defendants dismissing the complaint. Case law compels an affirmance.
The subject bull is a domestic animal (see Agriculture and Markets Law § 108; see also Talmage v. Mills, 80 App.Div. 382, 80 N.Y.S. 637 ; Vrooman v. Lawyer, 13 Johns. 339  ) and thus Jahnke, as its owner, will not be strictly liable for plaintiff's injuries unless he knew or should have known of its vicious or violent propensities (see e.g. Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Wardrop v. Koerner, 208 A.D.2d 1147, 1148, 617 N.Y.S.2d 946 ; see also Talmage v. Mills, supra; Vrooman v. Lawyer, supra ). The record contains no such evidence. To the contrary, it contains competent evidence establishing that, prior to plaintiff's accident, the subject bull had never injured another person or animal or behaved in a hostile or threatening manner (see Blackstone v. Hayward, 304 A.D.2d 941, 757 N.Y.S.2d 160 , lv. denied 100 N.Y.2d 511, 766 N.Y.S.2d 164, 798 N.E.2d 348 ; Vrooman v. Lawyer, supra; cf. Talmage v. Mills, supra ). [FN1]
FN1. In fact, Jahnke averred that during the course of his farming
career, which spanned most of his 64 years, he was unaware of any bull on any farm that he had worked on or owned having injured another animal or person.
This evidence was countered only with an affidavit of a professor of animal science who essentially established that bulls, in particular breeding bulls, are generally dangerous and vicious animals. For example, the professor opined that dairy bulls are powerful animals which "should always be considered dangerous and handled as such," that breeding bulls in particular "should be considered hostile and vicious" and that Jahnke should have known that the bull which attacked plaintiff was a dangerous animal prone to viciousness such that the bull should have been restrained or plaintiff warned of his presence on the farm. We find this affidavit insufficient to raise a question of fact.
As this Court has consistently, and recently, reiterated, the particular type or breed of domestic animal "alone is insufficient to raise a question of fact as to vicious propensities" (Palleschi v. Granger, 13 A.D.3d 871, 872, 786 N.Y.S.2d 627 ; see Mulhern v. Chai Mgt., 309 A.D.2d 995, 996, 765 N.Y.S.2d 694 , lv. denied 1 N.Y.3d 508, 777 N.Y.S.2d 17, 808 N.E.2d 1276 ; Wilson v. Whiteman, 237 A.D.2d 814, 655 N.Y.S.2d 126  ). In other words, "there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal" (Roupp v. Conrad, 287 A.D.2d 937, 939, 731 N.Y.S.2d 545 ; see DeVaul v. Carvigo, Inc., 138 A.D.2d 669, 670, 526 N.Y.S.2d 483 , appeal dismissed 72 N.Y.2d 914, 532 N.Y.S.2d 848, 529 N.E.2d 178 , lv. denied 72 N.Y.2d 806, 532 N.Y.S.2d 847, 529 N.E.2d 177 ; cf. Gaccione v. State of New York, 173 Misc. 367, 18 N.Y.S.2d 161  ). Thus here, the professor's affidavit attesting to the alleged viciousness of breeding bulls in general was insufficient to raise a question of fact (see Palleschi v. Granger, supra; Wilson v. Whiteman, supra ). Accordingly, summary judgment was properly granted to defendants. [FN2]
FN2. In particular, summary judgment was properly granted in favor of Timer, who neither owned or controlled the subject bull nor even knew of its presence in the dairy barn.
As a final matter, with respect to the negligence claim, we have considered and decline to adopt the enhanced duty rule espoused under certain limited circumstances by the First and Second Departments (see Shaw v. Burgess, 303 A.D.2d 857, 859, 756 N.Y.S.2d 362 ; see e.g. Colarusso v. Dunne, 286 A.D.2d 37, 732 N.Y.S.2d 424 [2d Dept.2001]; Diamond-Fisher v. Greto, 276 A.D.2d 413, 714 N.Y.S.2d 296 [1st Dept.2000]; St. Germain v. Dutchess County Agric. Socy., 274 A.D.2d 146, 712 N.Y.S.2d 146 [2d Dept.2000]; Schwartz v. Erpf Estate, 255 A.D.2d 35, 688 N.Y.S.2d 55 [1st Dept.1999], lv. dismissed 94 N.Y.2d 796, 700 N.Y.S.2d 428, 722 N.E.2d 508  ).
ORDERED that the order is affirmed, with one bill of costs.