Vanilla Claim May Go Forward

Neither side gets summary judgment in a tort claim brought against a veterinary clinic for a waiting room encounter according to an opinion of the New York Court of Appeals

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. 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.

The court reversed the grant of summary judgment to the clinic. 

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 “vicious propensity”(one free bite) rule that applies to dog owners did not govern

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.

Justice Wilson

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.

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.

…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.

(Mike Frisch)