A recent decision from New York’s Appellate Division serves as a reminder that the defense of domestic animal cases can be difficult when multiple parties are familiar with the animal at issue.   In Carey v. Schwab, a case straight out of the Old West, the defendant and his two companions rode three horses down to a local tavern.  While the defendant and his friends were inside, two of the horses, Whiskey and Cowboy, got free of their restraints and began to run down the road.  One of the defendant’s companions, Jan Wilson, bolted out of the tavern and after the horses.

Plaintiff was nearby and attempted to assist in corralling the horses.  Wilson caught Whiskey and asked plaintiff to hold the horse while she attempted to corral Cowboy.  While plaintiff was holding Whiskey’s reins, the horse suddenly “head swatted” plaintiff after it apparently “got spooked.” Plaintiff was knocked unconscious, fell to the ground and was dragged and stepped on by Whiskey.

The defendant moved for summary judgment, alleging that plaintiff failed to demonstrate that he had prior notice that Whiskey “had any vicious propensities or a history of dangerous behavior.”  In opposition, plaintiff offered the testimony of his neighbor who also witnessed the incident and had tried to help.  The neighbor had previously witnessed defendant riding his horses, and noted that horse previously acted aggressively.

The Appellate Division, Third Department, affirmed the trial court’s decision denying defendant’s motion for summary judgment, finding genuine issues of fact sufficient to preclude summary judgment.  The court noted the neighbor’s affidavit created a credibility issue that only a jury could resolve.

Thanks to Steve Kaye for his contribution to this post.  If you would like more information, please write to Mike Bono.