Re: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry Don't Have a Cow: No Liability for Moo-ving Violation
- Depends. I think no-fault would pay for ac-moo-puncture and moo-sage therapy.Larry Rogak
--- In TheRogakReport@yahoogroups.com, Jeena Belil <jeena.belil@...> wrote:
> But, the real question...is the COW entitled to No Fault benefits?
> : D
> Jeena R. Belil, Esq.
> Belil & Varriale, PC
> Counsel to NY Healthcare Providers and the Patients They Treat
> 150 Motor Parkway, Suite 401
> Hauppauge, New York 11788
> Tel: 631-828-5552
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> On Tue, Apr 10, 2012 at 2:28 PM, Lawrence insurancelawyer@... wrote:
> > **
> > COW'S OWNER HAS NO LIABILITY FOR COLLISION WITH CAR WHEN IT WANDERED ONTO
> > ROAD
> > *Hastings v Sauve<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm>
> > *2012 NY Slip Op 02535 Decided on April 5, 2012Appellate Division, Third
> > DepartmentEdited by Lawrence N. Rogak <http://www.newyorkpip.com>
> > .
> > Appeal from an order of the Supreme Court (Demarest, J.), entered March 3,
> > 2011 in Franklin County, which granted motions by defendants Laurier Sauve
> > and William Delarm for summary judgment dismissing the complaint against
> > them.
> > At approximately 1:30 A.M. on September 11, 2007, plaintiff Karen Hastings
> > (hereinafter plaintiff) was injured when her vehicle collided with a cow on
> > County Route 53 in the Town of Bangor, Franklin County. The cow had
> > wandered onto Route 53 from a farm owned by defendant Laurier Sauve that
> > was located next to the highway. Defendant William Delarm operated a cattle
> > shipping business and used a corral on Sauve's property to temporarily
> > store cattle before they were shipped for slaughter. Defendant Albert
> > Williams assisted Delarm in his cattle business, and he claims that the cow
> > that was struck by plaintiff's motor vehicle was one of several he kept in
> > a fenced pasture on Sauve's property.
> > In 2008, plaintiff and her husband, derivatively, commenced this action
> > alleging that defendants were negligent in not properly confining the cow
> > to the pasture and by allowing it to wander onto the adjacent highway
> > causing this accident. Sauve and Delarm's motion for summary judgment
> > dismissing the complaint was granted by Supreme Court, and this appeal by
> > plaintiffs ensued.*[FN1]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#1FN>
> > Initially, we note that plaintiffs, in their complaint, only alleged that
> > defendants were negligent in failing to restrain the cow, and did not plead
> > a cause of action against defendants alleging that they were strictly
> > liable for the damages caused in this accident. However, claims involving
> > "'injuries inflicted by domestic animals may *only* proceed under strict
> > liability based on the owner's knowledge of the animal's vicious
> > propensities, not on theories of common-law negligence'" (*Rose v Heaton*,
> > 39 AD3d 937<http://www.nycourts.gov/reporter/3dseries/2007/2007_02850.htm>,
> > 939 , quoting *Morse v Colombo*, 31 AD3d 916<http://www.nycourts.gov/reporter/3dseries/2006/2006_05695.htm>,
> > 917 ; *see Petrone v Fernandez*, 12 NY3d 546<http://www.nycourts.gov/reporter/3dseries/2009/2009_04694.htm>,
> > 550 ; *Bard v Jahnke*, 6 NY3d 592<http://www.nycourts.gov/reporter/3dseries/2006/2006_03440.htm>,
> > 598 ; *Collier v Zambito*, 1 NY3d 444<http://www.nycourts.gov/reporter/3dseries/2004/2004_00960.htm>,
> > 445-446 ; *Gannon v Conti*, 86 AD3d 704<http://www.nycourts.gov/reporter/3dseries/2011/2011_05849.htm>,
> > 705 *[FN2]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#2FN>.
> > Therefore, plaintiffs' claim alleging that Delarm and Sauve were negligent
> > in regard to the damages caused by this animal was properly dismissed.
> > Moreover, even though Williams did not move for summary judgment, for the
> > same reasons that liability cannot be imposed upon Sauve and Delarm, no
> > liability can be imposed against him. Therefore, we grant summary judgment
> > dismissing the complaint against Williams, without reaching the issue of
> > ownership.*[FN3]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#3FN>
> > Had plaintiffs alleged a cause of action against defendants based on
> > strict liability, they would have been required to present evidence that
> > this particular cow had a vicious or abnormal propensity that caused this
> > accident and defendants knew or should have known of it (*see Petrone v
> > Fernandez*, 12 NY3d at 550; *Bernstein v Penney Whistle Toys, Inc.*, 10
> > NY3d 787 <http://www.nycourts.gov/reporter/3dseries/2008/2008_02463.htm>,
> > 788 ;*Bard v Jahnke*, 6 NY3d at 601; *Collier v Zambito*, 1 NY3d at
> > 446-477; *Vichot v Day*, 80 AD3d 851<http://www.nycourts.gov/reporter/3dseries/2011/2011_00077.htm>,
> > 852 [2011). Since no such claim has been made by plaintiffs, and no
> > evidence to that effect has been presented, any claim that they were
> > strictly liable for plaintiffs' injuries would also have been dismissed (*see
> > Vichot v Day*, 80 AD3d at 852).
> > While we are obligated to affirm Supreme Court's dismissal of plaintiffs'
> > claims against Delarm and Sauve, we must note our discomfort with this rule
> > of law as it applies to these facts and with this result. There can be
> > no doubt that the owner of a large animal such as a cow or a horse assumes
> > a very different set of responsibilities in terms of the animal's care and
> > maintenance than are normally undertaken by someone who owns a household
> > pet. The need to maintain control over such a large animal is obvious,
> > and the risk that exists if it is allowed to roam unattended onto a public
> > street is self-evident and not created because the animal has a vicious or
> > abnormal propensity.
> > Here, plaintiff was injured not because the cow was vicious or abnormal,
> > but because defendants allegedly failed to keep it confined on farm
> > property and, instead, allowed it to wander unattended onto the adjacent
> > highway in the middle of the night, causing this accident. The existence
> > of any abnormal or vicious propensity played no role in this accident, yet,
> > under the law as it now exists, defendants' legal responsibility for what
> > happened is totally dependent upon it. For this reason, we believe in
> > this limited circumstance, traditional rules of negligence should apply to
> > determine the legal responsibility of the animal's owner for damages it may
> > have caused. However, it is not for this Court to alter this rule and,
> > while it is in place, we are obligated to enforce it. Therefore, for
> > reasons previously stated, Supreme Court's order granting the motion for
> > summary judgment by Delarm and Sauve should in all respects be affirmed.
> > Peters, J.P., Lahtinen, Stein and Garry, JJ., concur.
> > ORDERED that the order is modified, on the law, with costs to defendants
> > Laurier Sauve and William Delarm, by granting summary judgment dismissing
> > the complaint against defendant Albert Williams, and, as so modified,
> > affirmed.
> > *Footnotes*
> > *Footnote 1:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#1CASE> Williams
> > did not join in this motion and has not appeared on this appeal.
> > *Footnote 2:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#2CASE> Cattle
> > are included in the definition of domestic animals under the Agriculture
> > and Markets Law (*see* Agriculture and Markets Law § 108 ; *see
> > generally Bard v Jahnke*, 6 NY3d at 592).
> > *Footnote 3:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#3CASE> This
> > Court may search the record and grant summary judgment to a nonappealing,
> > nonmoving party (*see Shields v Carbone*, 78 AD3d 1440<http://www.nycourts.gov/reporter/3dseries/2010/2010_08661.htm>,
> > 1443 n 3 ; *Luby v Rotterdam Sq., L.P.*, 47 AD3d 1053<http://www.nycourts.gov/reporter/3dseries/2008/2008_00154.htm>,
> > 1055 ).