MANHATTAN (CN) - The New Yorker whose dog tore off down Lexington Avenue, weaponizing the bicycle rack to which her leash had been tied, is not liable to another man injured in the melee, an appeals court ruled.
Though the March 16 opinion is light on details, New York City tabloids note that the golden retriever pup was just 8 months old on the day of her eventful outing. The New York Post calls her Kenny, but she is Kennie at the Daily News.
When Stuart Wechsler took the 35-lb. pooch along to a pizzeria just above East 93rd Street on March 24, 2014, he failed to check that the 5-lb. bicycle rack where he tied her was secured to anything else.
Wechsler discovered his error when he heard the metal rack scraping against the sidewalk as his panicked dog pulled it down the street. He was 82 years old at the time and unable to catch up with her.
Gregory Scavetta had been on his way to work when he saw the dog run past him and hide under a car. An elevator mechanic from Hicksville, Scavetta stopped to help, only to get taken out by the rack when Wechsler’s dog sprang toward him.
“One of Scavetta's legs got caught in the rack's crossbars, and, as the dog continued to pull the rack, Scavetta was spun around so that both of his feet went up in the air and he landed on his back,” the ruling states.
It took another two hours for Wechsler to find his dog, which had reportedly made it down to the Petco on 86th Street.
Scavetta, 41, meanwhile sought treatment for his leg injury at Mt. Sinai Hospital. He sued for negligence, but the Manhattan Supreme Court sided with Wechsler at summary judgment.
Affirming that decision last week, a five-judge panel with the Appellate Division’s First Judicial Department said the case hinges on the fact that the incident was a first offense.
“Under the law of New York at present, permitting a domestic pet that has not displayed vicious propensities to run at large under any circumstances - even when doing so would be clearly dangerous - would never give rise to a claim sounding in negligence,” Justice Rolando Acosta wrote for the court.
That said, the judge noted Scavetta’s has made a “persuasive argument” to close this legal loophole.
“As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner's negligent conduct in controlling or failing to control the dog,” Acosta wrote. “This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the state of New York without recourse.”
Weschsler may not have commanded his dog to hurt fellow New Yorkers, but the court said Scavetta has a point that his actions mobilized a dangerous object.
“Although … New Yorkers may expect to find unrestrained dogs in public parks, New Yorkers certainly do not expect to find those dogs running on public roads towing large metal objects behind them,” Acosta wrote. “A dog owner who, without observing a reasonable standard of care, attaches his or her dog to an object that could foreseeably become weaponized if the dog is able to drag the object through public areas should not be immune from liability when that conduct causes injury.”
Acosta called last week’s result “most unsatisfactory as a matter of public policy.” He noted that Scavetta’s case might have fared better if it had been a farm animal attached to the bike rack. Farm animals are the one exception to a previous ruling that found “a landowner or the owner of an animal may be liable under ordinary tort-law principles.”
Justices Dianne Renwick, Karla Moskowitz, Paul Feinman and Marcy Kahn concurred with Acosta’s ruling.
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