The Appellate Division, Third Department, recently issued decisions originating in Supreme Court, Saratoga County, one relating to the Workers’ Compensation Law and the other relating to a personal injury claim – that both had their origin from the riding of horses – and a third opinion, also originating in Supreme Court, Saratoga County, arising out of an automobile that was struck by a deer.
Carey v. Burton P. Schwab, 2014 NY Slip Op 08096 (decided on November 20, 2014) [Stein, J.]
The Court briefly summarized the facts:
[O]n May 24, 2008, defendant and two others rode three horses to a local tavern. While defendant — who was riding a horse he owned named Whiskey — was inside the tavern, Whiskey and another horse got loose from their restraints and took off. One of defendant’s companions went after the horses. Whiskey passed plaintiff and another individual, both of whom assisted defendant’s companion in trying to corral the horses. Whiskey was eventually restrained by defendant’s companion, who asked plaintiff to hold the reins. Plaintiff alleges that, as he was holding the reins, Whiskey head-butted him and stepped on him, causing plaintiff to lose consciousness and suffer injuries.
The prior proceedings:
Plaintiff subsequently commenced this personal injury action against defendant for the injuries he allegedly sustained and proceeded on a theory of strict liability. Defendant thereafter moved for summary judgment dismissing the complaint, arguing that he did not have prior notice of a vicious/dangerous propensity attributable to Whiskey. Upon the denial of that motion by Supreme Court (Sise, J.), we affirmed, finding that there were triable questions of fact…
Prior to trial, defendant sought to preclude plaintiff from raising the question of defendant’s negligence and plaintiff moved to amend the complaint to add a negligence cause of action… Supreme Court (Ferradino, J.) denied plaintiff’s motion, and this appeal ensued.
The grounds for reversal:
We now modify. Initially, we note the well-settled principle that determination of an application for leave to amend a complaint “rests soundly within the discretion of Supreme Court, although leave to amend should be freely granted so long as plaintiffs establish a satisfactory excuse for their delay and defendants will not be prejudiced by the late amendment,” and provided that the proposed amendment is not plainly without merit…Here, Supreme Court denied the amendment because it concluded that it was plainly lacking in merit and unduly prejudicial to defendant. We disagree.
The basis therefor:
We turn first to the question of whether the proposed amendment is plainly without merit. For about the last decade, the general rule enunciated by the Court of Appeals has been that the owner of a domestic animal may only be held legally responsible for injuries inflicted by such animal based upon a theory of strict liability and that a negligence claim does not lie…However, in [Hastings v. Suave], the Court of Appeals further clarified its rule and permitted the application of ordinary principles of tort law in situations in which “a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept”…In that case, the plaintiff was injured when her vehicle struck a cow that had wandered onto a public road as a result of the defendants’ negligent maintenance of a fence on the property where the cow was kept. The Court of Appeals recognized that to limit recovery to a claim of strict liability where an injury was solely the result of the negligence of the owner of the animal and/or of the property from which the animal strayed — and not due to the animal’s vicious/dangerous propensity — would “immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property”…
This case, unlike Hastings, embraces elements of both strict liability and common-law negligence. Notably, in the instant matter, after Whiskey broke loose from the tavern, the horse was ultimately corralled by plaintiff and others. As plaintiff was holding the reins, he and another individual were petting Whiskey and trying to keep the horse calm when, after about five minutes, Whiskey apparently became startled, head-swatted plaintiff and took off again. Had this incident occurred on defendant’s property, there is no question that plaintiff’s claim would be limited to strict liability…We are unpersuaded by plaintiff’s argument that the holding in Hastings permits recovery based on principles of common-law negligence in every case in which injury is caused by an unrestrained farm animal off the premises where it is kept, regardless of whether the injury is a result of a vicious propensity of the animal. However, for the reasons that follow, we agree with plaintiff that he should be permitted to amend the complaint to plead a claim for common-law negligence as an alternative theory of liability.
Defendant apparently disputes plaintiff’s claim that Whiskey’s conduct constituted a vicious propensity — as opposed to normal equine behavior — upon which strict liability can be based. If defendant were successful in establishing the absence of a vicious propensity, this would lead to the very outcome of which the Court of Appeals disapproved in Hastings — defendant would be immunized for Whiskey’s behavior despite having been allegedly negligent in allowing the horse to roam from where it was being kept. Inasmuch as we cannot predict how a jury will decide the question of whether Whiskey’s actions constituted a vicious propensity, we discern no reason why the two theories could not be pleaded in the alternative. Thus, if Whiskey’s actions were determined to constitute a vicious propensity, plaintiff would be limited to pursuing a claim based on strict liability…If, however, a jury determined that Whiskey’s conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept.
Correa v. Anderson, 2014 NY Slip Op 08093 (decided on November 20, 2014) [McCarthy, J.]
The Court outlined the facts:
Plaintiff Leeanne M. Correa…and defendant were employed as exercise riders for a horse trainer. After exercising several horses on the day in question, plaintiff asked her coworkers if any of them had a hat she could borrow, as she had become hot and sweaty while exercising the horses, then became chilled afterward. Defendant told her that he had hats in the rear cargo area of his sport utility vehicle and handed her the keys. Although the two disagree as to whether defendant warned plaintiff not to open the tailgate of the vehicle, plaintiff did so and was seriously injured when an anvil fell out of the cargo area and crushed her right foot.
The prior proceedings:
Plaintiff and her husband, derivatively, commenced this negligence action against defendant. In response to defendant’s motion for summary judgment dismissing the complaint and plaintiffs’ cross motion to dismiss a defense, Supreme Court dismissed the action on the ground that it was barred by the exclusivity provisions of the Workers’ Compensation Law…
And affirmed Supreme Court’s Order granting defendant’s motion dismissing the amended complaint:
There is no dispute that plaintiff and defendant were coemployees, that plaintiff was injured in the course of her employment and that she collected workers’ compensation benefits for those injuries. Pursuant to Workers’ Compensation Law § 29 (6), those benefits would ordinarily constitute the exclusive remedy for plaintiff’s injuries…Plaintiffs nevertheless contend that this action is viable because defendant had no work-related reason for storing the anvil in his vehicle and that he was not “acting within the scope of his employment” when he placed it there…
Whether defendant’s actions were “within the scope of employment or purely personal” involves an assessment of whether they were “both reasonable and sufficiently work related under the circumstances”…While at work, defendant offered to lend an uncomfortable coworker a hat and, because “some advantage to the employer, even though slight, can be discovered in [that] conduct, his act cannot be regarded as purely personal and wholly unrelated to his employment”…Notwithstanding the lack of any connection between the anvil and defendant’s employment, he was “acting within the scope of his employment” when he lent plaintiff the hat — and allegedly committed a tortious act by failing to warn plaintiff that objects may fall if she opened the tailgate — so as to trigger the exclusivity provisions of the Workers’ Compensation Law…
Smith v. Allen, 2015 NY Slip Op 00593 (decided on January 22, 2015) [Peters, J.]
The Court summarized the facts and prior proceedings:
On February 7, 2009 at approximately 6:00 p.m., defendant Harold R. Boutelle was driving northbound on North Creek Road in the Town of Greenfield, Saratoga County. As defendant Rachel B. Allen was driving a vehicle owned by defendant Connie E. Bourdeau southbound on the same road, Allen struck a deer that was then propelled into the air and onto the hood of Boutelle’s vehicle, breaking Boutelle’s windshield and exiting through his rear window. Plaintiff, a front-seat passenger in Boutelle’s truck, was seriously injured and she commenced this negligence action against defendants.
The prior proceedings:
Following joinder of issue, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motions and plaintiff now appeals.
The testimony of the drivers of the two vehicles involved in the accident:
In support of their motions, defendants relied upon the deposition testimony of Boutelle and Allen. Boutelle testified that, on the evening in question, it was getting dark, he was driving approximately 40 to 50 miles per hour, which was less than the posted speed limit, and was traveling along a straightaway when he noticed a vehicle ahead of him in the opposite lane lower its high beams. As he approached the vehicle, he was talking to plaintiff while keeping a view of the road. He never saw the deer until it came through his windshield and struck plaintiff.
Similarly, Allen testified that it was getting dark and she was traveling with a front-seat passenger going approximately 40 miles per hour along a straightaway just prior to the accident. She stated that she dimmed her headlights upon seeing an approaching vehicle in the opposite lane, but did not see any deer. Even when the deer impacted her vehicle, she was not sure exactly what she had hit. She learned later that she had struck a deer and that it had been propelled into the windshield of Boutelle’s truck, which was the approaching vehicle. Like Boutelle, she did not slow down or have an opportunity to take evasive action.
The applicable law:
Generally, “[d]rivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident”…The deposition testimony of both Boutelle and Allen established that it was dusk and that neither of them saw the deer until it came into contact with their respective vehicles. There is nothing in their testimony to suggest that they should have seen the deer under the circumstances presented or that either had time to react to avoid it…Furthermore, there is no evidence that either was speeding, distracted while driving or in violation of the Vehicle and Traffic Law…Thus, defendants demonstrated their entitlement to summary judgment.
The shifting of the burden of proof:
Having made this showing, the burden then shifted to plaintiff to “produce evidentiary proof in admissible form sufficient to establish the existence of [a] material issue of fact which require[s] a trial of the action”…In opposition to the motions, plaintiff submitted the deposition testimony of John Reome, a tow truck operator who was driving ahead of Allen on the evening in question, as well as the affidavit of Bradford Silver, an automobile accident reconstruction expert. Reome acknowledged that it was getting dark at the time and that he, as well as Allen and Boutelle, had activated their headlights. He related that he saw four or five deer on the left side of the road eating apples on the ground near a bend just before a straightaway that continued approximately 1,500 feet. He noticed Allen’s car behind him and had passed Boutelle’s truck when he observed that the vehicles seemed to disappear. He stated that he turned around to discover that Allen’s car had struck a deer, propelling the deer into the windshield of Boutelle’s truck.
After reviewing the deposition transcripts and other documentary evidence, and visiting the accident site, Silver provided an opinion on the estimated reaction times for Allen and Boutelle based upon the speeds that they were traveling and their clear sight distances from the accident location. He opined that Boutelle had three seconds to react and that Allen had 11 seconds, both of which were greater than the .75- to 1.5-second range of driver perception-reaction times generally accepted by accident reconstruction authorities. On this basis, he further opined that Allen and Boutelle were both negligent in not observing the deer and reacting to avoid the accident.
And the basis for affirming the Order of Supreme Court:
We find that neither the deposition testimony of Reome nor the affidavit of Silver raises a material issue of fact on the issue of negligence so as to preclude an award of summary judgment in favor of defendants…Significantly, Reome’s testimony does not establish that the deer he observed eating apples were in the same area of the road where the accident occurred or that it was one of these deer that actually impacted the vehicles driven by Allen and Boutelle. In view of this, it cannot be concluded that either Allen or Boutelle failed to perceive an apparent hazard and take reasonable measures to avoid contact. Moreover, to the extent that Silver’s affidavit relies upon the testimony of Reome and also fails to take into account the fact that it was dusk at the time of the accident, it is of questionable probative value and, further, is lacking in detail, as it does not set forth the calculations that he made to arrive at his conclusion that Boutelle had three seconds to react and Allen had 11 seconds…Accordingly, we find that the affidavit is conclusory, speculative and insufficient to defeat defendants’ motions…Therefore, even viewing the evidence in the light most favorable to plaintiff…Supreme Court properly granted defendants’ motions and dismissed the complaint…
The Albany-based Third Department hears and determines appeals arising from actions in the twenty-eight bucolic counties within its judicial domain. These proceedings often have a local, fact-based “ambience”, that distinguishes the disputes from “downstate” litigation.