In Scavetta v Wechsler, the First Department affirms the dismissal of negligence claims against the owner of a dog that, when leashed to a bicycle rack, dragged the rack into the street injuring the plaintiff. Although the Court noted that it was constrained to dismiss the case by the Court of Appeals’ vicious propensities rule in Bard v Jahnke (6 NY3d 592 ), it went to great lengths to question the continuing vitality of the rule and its unintended consequences.
In criticizing the rule, the First Department says the strict liability rule based upon vicious propensities wrongly immunizes negligent animal owners, and effectively invites the Court of Appeals to revisit rule. I would not be surprised to see the First Department grant leave to the Court of Appeals in this case to bring the issue before the Court for reconsideration.
The First Department’s order can be found here.