Marsha Hewitt v. Palmer Veterinary Clinic

State of New York                                                       OPINION
Court of Appeals                                         This opinion is uncorrected and subject to revision
                                                           before publication in the New York Reports.

 No. 28
 Marsha Hewitt,
 Palmer Veterinary Clinic, PC,
 et al.,

 Mark Schneider, for appellant.
 Judith Aumand, for respondent.
 New York State Trial Lawyers Association; New York State Academy of Trial Lawyers;
 Defense Association of New York, Inc., amici curiae.


       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
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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

   The dog’s owner originally also was named as a defendant in the action, but the parties
stipulated to discontinue the action against the owner, without prejudice to the clinic’s
apportionment defense.
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“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

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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,

  We need not comment on the concurrence’s description of Bard v Jahnke (6 NY3d 592,
599 [2006]) or other precedent relating to the liability of domestic animal owners because,
as our concurring colleague acknowledges, this appeal does not involve a dog owner and
plaintiff does not seek to hold Palmer strictly liable.
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however, that this rule does not—and should not—apply to Palmer, a veterinary clinic. We


         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

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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.

       Addressing plaintiff’s remaining arguments, we are unpersuaded that the courts

erred by striking those portions of plaintiff’s supplemental bills of particulars alleging that

Palmer was negligent based on a purported failure to use anesthesia or otherwise follow

the standard of care in its treatment of Vanilla. Those allegations, raised for the first time

several years after commencement of the action, introduced a new theory of liability into

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the case relating to Palmer’s medical treatment of Vanilla and the standard of care owed to

the patient dog and its owner, as compared with the duty that Palmer owed to plaintiff.

Palmer was not on notice of these claims based upon the original allegations of the

complaint and, on this record, the striking of such allegations did not constitute an abuse

of discretion (cf. Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015]; see

CPLR 3043 [b], [c]; Schonbrun v DeLuke, 160 AD3d 1100, 1101 [3d Dept 2018];

Dalrymple v Koka, 295 AD2d 469, 469 [2d Dept 2002]). Finally, plaintiff’s argument that

Palmer’s apportionment defense should have been stricken lacks merit (see CPLR 1601

[1]; Rangolan v County of Nassau, 96 NY2d 42, 45 [2001]).

       Accordingly, the order of the Appellate Division should be modified, without costs,

by denying defendant’s motion for summary judgment and, as so modified, affirmed.

WILSON, J. (concurring in result):

      From time immemorial, humans have domesticated animals. Dogs may have

domesticated themselves (and in the process, helped us humans to domesticate ourselves)

(see 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]). Sometimes domestic animals injure humans. For well over a

century, New York allowed persons injured by a domestic animal to sue the animal’s owner

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under either an ordinary negligence theory or a strict liability theory (see Dickson v McCoy,

39 NY 400, 401 [1868]; Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223, 227 [1897];

Hyland v Cobb, 252 NY 325, 326-327 [1929]). The injured party had a choice. Under

rules of ordinary negligence, the victim could seek to prove that the defendant had a duty,

failed to use due care in discharging that duty, which proximately caused the victim’s

injury. Animal owners presumptively had a duty to control their animals, but others might

also have such a duty when they “created the very risk . . . which operated to injure [the]

plaintiff” (Strunk v Zoltanski, 62 NY2d 572, 575 [1984]; see also Molloy v Starin, 191 NY

21, 27 [1908] [common carrier liable for injuries caused by animals it was transporting]).

Alternatively, if the owner knew that a domestic animal had vicious propensities, the victim

could hold the owner strictly liable—that is, the owner of a vicious animal could not escape

liability by showing that the owner had taken due care.

       That dual approach made sense. Persons negligently injured by a factory machine,

car, bicycle, horse or dog could recover without regard to whether the injury was caused

by human, machine or animal, so long as duty, negligence and proximate cause were

proved. However, if a domestic animal known to have vicious propensities hurt someone,

the entire risk was placed on the owner, evidencing a policy against the harboring of vicious

animals. That rule persisted until Bard v Jahnke (6 NY3d 592 [2006]), in which we held

that owners of domestic animals could not be held liable for injuries caused by their animals

unless the plaintiff could prove that the owner knew the animal had vicious propensities—

that is, under a strict liability theory (id. at 599). Bard, however, did not disturb the viability

of settled law allowing persons injured by animals to assert ordinary negligence claims

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against persons other than the animal’s owner (see Benoit, 154 NY at 228; Molloy, 191 NY

at 27; Strunk, 62 NY2d at 575-576).

       I concur with the majority’s holding that Ms. Hewitt may proceed against Palmer

Veterinary Clinic (Palmer) in negligence. I further agree with the majority’s holding that

this case does not implicate Bard’s rule (subjecting animal owners to strict liability)

because Palmer was not the owner of Vanilla, the dog who injured Ms. Hewitt. Because

the record presents disputed issues of fact, I further agree with the majority that neither

party is entitled to summary judgment. I concur separately to express why prudence and

longstanding precedent dictate that Bard’s strict liability rule—a rule that has rendered

New York an outlier and confounded common sense and fairness in application—should

not be extended to persons who are not the owner of the domestic animal causing injury.1

I note that neither party has asked us to overturn Bard—understandably so because its rule

does not apply to the facts of this case.

       New York has long allowed negligence actions for injuries caused by domestic

animals. In Dickson v McCoy (39 NY 400 [1868]), we affirmed a damage award for a

child injured by a renegade horse. Judge Dwight held that even though “there is no proof

  As the Appellate Division observed in the instant case, Bard’s “strict liability rule has not
escaped criticism” in our Court (Hewitt v Palmer Veterinary Clinic, PC, 167 AD3d 1120,
1121 [3d Dept 2018], citing Doerr v Goldsmith, 25 NY3d 1114, 1154-1155 [Fahey, J.,
dissenting]; Bard, 6 NY3d at 601-602 [Smith, J., dissenting]). Bard deviated from over a
century of precedent and made New York the lone outlier among the 50 states in holding
that negligent animal owners may not be held liable unless they know of an animal’s
vicious propensity; no other state immunizes owners from liability for their own negligence
(see Doerr, 25 NY3d at 1149 [Fahey, J., dissenting] [“(A) review of the law of other
jurisdictions identifies New York as a unique outlier in its rejection of the Restatement
(Second) of Torts § 518”]).
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in this case that this horse was vicious and accustomed to attack and injure mankind . . . I

regard the allegation as unnecessary and the absence of proof on the point as not affecting

the right to recover. . . . It is not necessary that a horse should be vicious to make the owner

responsible for injury done by him through the owner’s negligence” (id. at 401). Judge

Grover believed that the trial court erred in refusing to charge the jury that there was no

evidence that the horse had any vicious propensity, “which required the defendant to exert

any greater care over him that prudent men should exercise, in general, over horses kept in

the same or a similar locality,” although he noted that “the jury may have based their verdict

upon another ground” (id. at 402).2 That other ground is negligence.

       In Benoit v Troy & Lansingburgh R.R. Co. (154 NY 223 [1897]), a unanimous Court

made clear that the common law allowed both a strict liability action when owners knew

of their animals’ vicious propensities and an action for negligence if those owners did not

take reasonable measures to prevent their animals from causing injuries (id. at 225

[Andrews, Ch. J.] [ordering a new trial where “neither (cause of action) was sustained by

evidence”]). Likewise, in Hyland v Cobb (252 NY 325 [1929]), we stated that “negligence

by an owner, even without knowledge concerning a domestic animal’s evil propensity, may

create liability” (id. at 326-327). In addition, throughout the 20th century, New York courts

have held that persons other than an animal’s owner may be liable in negligence for injuries

foreseeably caused by animals in their custody (see Molloy v Starin, 191 NY 21, 27 [1908]

  Judge Dwight and Judge Grover differed on whether the trial court properly denied the
requested jury charge, but the court was unanimous that the judgment for the plaintiff
should be affirmed. Together, their opinions hold that a person injured by a runaway horse
may pursue a negligence action against the horse’s owner.
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[holding that a plaintiff could proceed under a negligence theory against a common carrier

that transported but did not own the trained bears that injured the plaintiff]). Notice of a

domestic animal’s vicious propensity may also render non-pet-owners who ordinarily have

no duty, such as out-of-possession landlords, liable under a negligence standard (see Strunk

v Zoltanski, 62 NY2d 572, 575-76 [1984] [“We do not intend to suggest that the landlord

would be subject to the same strict liability to which a tenant as harborer of the dog would

be subject . . . but landlords as others must exercise reasonable care not to expose third

persons to an unreasonable risk of harm”]).

       When Bard stated that an injured party could bring a claim in strict liability only

against owners of domestic animals, it radically altered New York’s settled law allowing

negligence actions against animal owners. It shifted the burden away from owners of

domestic animals, who previously had to comply with a duty of care, to parties injured by

those animals. Though Bard correctly stated the rule, affirmed in Collier v Zambito (1

NY3d 444 [2004]), that an owner who knows or has reason to know of an animal’s

dangerous propensities faces strict liability, it introduced the novel holding that strict

liability was the only type of liability that an owner of a domestic animal may face. After

Bard, unless owners had knowledge of their domestic animals’ vicious propensities—

established by prior acts, behaviors of the animal, or behaviors of its owner which lead to

an inference of viciousness (see Collier, 1 NY3d at 447)—those owners were insulated

from liability. However, Bard neither altered nor established any rule as to the liability of

non-owners responsible for injury-causing animals.

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       We have since applied Bard to pet owners, with confounding results, but have also

recognized that Bard’s rule does not apply to immunize others from liability for their own

negligence. Since Bard, we have declined to extend its strict liability rule to the claim that

the owner of a farm animal negligently allowed the animal to stray, causing injury

(Hastings v Sauve, 21 NY3d 122 [2013]), and the claim that a third-party defendant

negligently failed to protect a child from injury by another party’s dog (Bernstein v Penny

Whistle Toys, Inc., 10 NY3d 787 [2008]).3 In Hastings, we distinguished Bard on the

ground that unlike the animals in Collier, Bard, and Bernstein, the injury was not caused

by any “aggressive or threatening behavior by” the wandering cow (Hastings, 21 NY3d at

125). Although in Hastings we rejected Bard’s strict liability rule because it “would

immunize defendants who take little or no care to keep their livestock out of the roadway

or off of other people’s property” (id.), only two years later in Doerr v Goldsmith (25 NY3d

1114 [2015]) we applied the Bard rule to immunize negligent dog owners who deliberately

commanded their large, well-trained docile dog to run across a roadway filled with runners,

cyclists and rollerbladers, severely injuring a cyclist (id. at 1116). Thus, as the dissenters

in Bard predicted, our application of Bard’s rule to animal owners has run “contrary to

fairness and common sense,” compelling its “ero[sion] by ad hoc exceptions” (Bard, 6

 In Bernstein, we held that the Appellate Division correctly disallowed the plaintiff’s claim
against the dog’s owner and a toy store operated by the dog’s owner “[s]ince there [was]
no evidence . . . that the dog’s owner had any knowledge of its vicious propensities”
(Bernstein, 10 NY3d at 788). We provided a separate ground for dismissing the claim
against the third party—the adult who had taken the infant plaintiff to the store and allowed
the interaction with the dog—stating that “[p]laintiff’s claims against third-party defendant
were also properly dismissed, because there is no evidence that third-party defendant was
negligent” (id.).
                                            -7-                                      No. 28

NY3d at 599 [Smith, J., dissenting]). The inequity of the Bard rule in the context of pet-

owner liability sharply cautions against extending that rule a whit.

       Under our longstanding, settled precedent, undisturbed by Bard, a person injured by

an animal may, under ordinary rules of negligence, sue a person other than the animal’s

owner. Here, as the majority holds, Palmer unquestionably owes a duty of care to persons

waiting in its clinic. Whether injury to such persons caused by an animal patient is

foreseeable, and whether a clinic has taken reasonable precautions to discharge its duty are

questions of fact—not issues that we can say as a matter of law always exist or always are

absent. Because those factual questions are present and unresolved in the instant case, I

agree with the majority that Supreme Court’s grant of summary judgment to Palmer was

erroneous.4 Viewing the facts in the light most favorable to Ms. Hewitt (see Vega v Restani

  I disagree with the majority’s conclusion that Supreme Court did not err in striking those
portions of Ms. Hewitt’s supplemental bills of particulars alleging 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 of dogs after surgery.” Palmer failed to make a showing
of prejudice or surprise sufficient to overcome CPLR 3025 (b)’s command that leave to
amend or supplement a pleading be freely granted. For the most part, the allegations in
Ms. Hewitt’s supplemental bill of particulars merely amplified prior statements in Ms.
Hewitt’s complaint relating to Vanilla’s condition before the incident—e.g., that the dog
was in pain. Two other factors strongly suggest that, at a minimum, Supreme Court should
revisit the propriety of the motion to strike. First, Supreme Court’s decision was likely
colored by the application of the Bard strict liability standard, which we unanimously
reject. The stricken portions do not bear on Palmer’s knowledge of Vanilla’s vicious
propensities; striking them would have been appropriate were Ms. Hewitt limited to
proceeding under a strict liability theory, but the stricken portions are directly related to
the claim of negligence pleaded in Ms. Hewitt’s original complaint. We have repeatedly
held that a court abuses its discretion in denying a party leave to amend pleadings absent
prejudice or surprise resulting from the delay in seeking amendment, and we apply this
favorable treatment “even if the amendment substantially alters the theory of recovery,”
not just when the amendment adds details consistent with the original theory of recovery
(Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014], quoting Dittmar Explosives v A.
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Const. Corp., 18 NY3d 499, 503 [2012]), the record presents multiple disputed issues of

fact relating to, for example, whether the physical facility, practices on discharge, and

restraint and supervision of Vanilla were reasonable. The parties dispute, for instance, the

nature of Vanilla’s behavior and handling during her medical procedure, and how Palmer’s

employee reported Vanilla’s behavior to the dog’s owner in the waiting room. It remains

for the trier of fact to resolve the issue of whether the exercise of due care under the

circumstances would have required any or all of the measures advocated by Ms. Hewitt’s

expert affiant, for example, delaying Vanilla’s return to the waiting room or discharging

her through a separate room, checking or adjusting Vanilla’s collar, or otherwise

preventing Vanilla from coming close to Ms. Hewitt’s cat. Thus, neither Palmer nor Ms.

Hewitt is entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557,

562 [1980]).

Order modified, without costs, by denying defendant’s motion for summary judgment
and, as so modified, affirmed. Opinion by Judge Stein. Chief Judge DiFiore and Judges
Garcia and Feinman concur. Judge Wilson concurs in result in an opinion in which
Judges Rivera and Fahey concur.

Decided October 22, 2020

E. Ottaviano, Inc., 20 NY2d 498, 502-503 [1967]; see also Fahey v County of Ontario, 44
NY2d 934, 935 [1978]). Second, because Ms. Hewitt was not Vanilla’s owner, her ability
to learn about the nature of the procedure performed by Palmer and Vanilla’s underlying
condition(s) would not have been possible except through disclosure; thus, the
supplementation of her bill of particulars following receipt of disclosure is not remarkable.
Therefore, I would hold that denying Ms. Hewitt leave to amend her pleading and striking
portions of her supplemental bill of particulars constituted an abuse of discretion. I agree
with the majority’s conclusion that Supreme Court properly declined to strike Palmer’s
apportionment defense.
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