Hewitt v. Palmer Veterinary Clinic: Who Let The Dogs Out? Does It Matter?
Lyle. Is he a “lylebility”?
On a day when it's raining cats and dogs, I have been thinking a lot about whether I take on too much liability risk when I watch my neighbors’ cat, Lyle. Does Lyle have any “evil propensities,” as the courts of New York have called them over more than a century and a half of animal liability jurisprudence? The answer is “yes,” although so far the injuries suffered have amounted to no more than some cat pee in the shower and a couple of chewed-up house plants. Nevertheless, as a legal risk analyst, I am constantly worried that Lyle is on the verge of mauling a guest of mine, and that the victim would drag me before the courts. I'm joking of course, but only because the idea of having a house guest these days is preposterous. So imagine my delight upon learning that the New York Court of Appeals recently addressed this very issue in Hewitt v. Palmer Veterinary Clinic (Oct. 22, 2020), one of the few judicial opinions you will ever see that cites Darcy F. Morey & Rujana Jeger, From Wolf to Dog: Late Pleistocene Ecological Dynamics, Altered Trophic Strategies, and Shifting Human Perceptions, 29 Historical Biology 895 [2017].
The plaintiff, Marsha Hewitt, was waiting with her cat in the waiting room of the Palmer Veterinary Clinic when a veterinarian from the clinic brought a dog named Vanilla back into the waiting room following a procedure to remove a broken toenail (for more on vanilla, the flavor, not the dog, check out this Legal R&R blog post). Taking a cue from 1980s Saturday morning cartoons, Vanilla lunged at Ms. Hewitt's cat (unnamed), injuring Ms. Hewitt.
Ms. Hewitt sued the clinic, alleging both that it had breached its duty to provide a safe waiting area for Ms. Hewitt by failing to exercise due care, and that the clinic had been aware of Vanilla's “vicious propensities.” Palmer moved for summary judgment, asserting that it had had no prior knowledge of Vanilla's “vicious propensities,” and that it could not be liable for the dog's actions absent such knowledge as a matter of law. The Appellate Division agreed with Palmer.
At the heart of the Court of Appeals' decision in Hewitt is its oft-criticized decision in Bard v. Jahnke, 6 NY3d 592 (2006). In Bard, the court held that the owner of a domesticated animal (in that case, a dairy bull) could only be found liable for injuries caused by the animal on a strict liability basis, and only where the owner has pre-existing knowledge of the animal's “propensity to cause injury.” In other words, if you are injured by an animal in New York (unlike almost anywhere else), you can only recover from the owner if you can show that they knew that their animal had “vicious propensities.” You cannot recover merely by proving that they were negligent in the way that they managed the animal, and that that negligence caused your injuries.
Even though Bard infuses every inch of both the majority and the concurrence's opinions in Hewitt, the entire court agreed that it should have no bearing on the outcome in Hewitt. Why? Because in Hewitt the defendant was the veterinary clinic, not the dog's owner. In the end, the court decided to keep Bard on a short leash, limiting its bite to lawsuits against animal owners, and permitting Ms. Hewitt to move forward with a claim founded in negligence.
So what does Hewitt mean for me and Lyle (and, most importantly, they might argue, for my neighbors)? As a non-owner, I'll need to keep an eye on him if I ever have guests over while catsitting. If Lyle were to go all “The Revenant” on a guest under my watch, I could be liable (“Lyleable”?), even if I were to subsequently claim, laughably, to have been unaware of his obviously evil propensities (irrefutably evidenced in the accompanying photos).
Evidence of “vicious propensities”?
