Court of Appeals Expands Potential Liability for Pet Owners

Nearly 18 years ago, I wrote an article for The Daily Record posing the question, “Are dog owners entitled to one free bite?” That article addressed the standard applied by courts in New York State when a plaintiff seeks to recover for injuries suffered as a result of a dog bite. At the time of that article – until approximately two months ago – the law was clear in New York that the owner of a dog or other domestic animal would only be held liable if they knew or should have known of that animal’s vicious propensities.

In fact, the only theory of recovery for a prospective plaintiff was one of strict liability, based upon the Court of Appeals’ decision in Bard v. Jahnke, 6 N.Y.3d 592 (2006). According to Bard, there could be no common law negligence liability when a domestic animal causes harm.

This remained the state of the law in New York until April 17, 2025, when the Court of Appeals overruled its holding in Bard in Flanders v. Goodfellow, 2025 N.Y. Slip.Op. 02261 (2025). 

In Flanders, a postal carrier was bitten by a homeowner’s dog while delivering mail. During the course of discovery, the defendant homeowners denied knowledge or awareness of any vicious propensities previously exhibited by their dog and subsequently moved for summary judgment to dismiss the case. In opposition, the plaintiff submitted affidavits from two other postal carriers who had previously delivered mail to the defendant’s house. Both affidavits stated that although they were only able to observe the dog through the window, it acted very aggressively, baring its teeth and barking at them.

In awarding summary judgment to the defendants and dismissing the action, the trial court concluded that there was no triable issue of fact whether defendants had actual or constructive knowledge of the dog’s alleged vicious propensities. With respect to the affidavits from the postal workers, the court found them insufficient to defeat defendants’ motion because the affidavits did not demonstrate that defendants were home to observe the dog allegedly acting aggressively. Further, based on Bard, the court dismissed the negligence cause of action as inapplicable to harm caused by domestic animals. Subsequently, the Fourth Department confirmed.

On further appeal, the Court of Appeals first found that there was a triable issue of fact whether defendants had constructive knowledge of their dog’s vicious propensities. The Court of Appeals found the affidavits of the postal workers significant – especially the allegation that had anyone been in defendant’s home at the time of the mail deliveries, they would have observed its behavior. According to the Court of Appeals, this created a triable issue of fact on the credibility of defendants claimed ignorance of their dog’s behavior.

However, the Court of Appeals did not limit itself to merely reversing the grant of summary judgment on the strict liability cause of action. Rather, it took the invitation of plaintiff to overrule Bard and recognize negligence as an alternative theory for injuries caused by domestic animals.

The Court recognized that overruling Bard could be viewed as violative of the principle of stare decisis, i.e., that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem. It concluded that “stare decisis is not an inexorable command, and that ‘although a court should be slow to overrule precedents, there is little reasons to avoid doing so when persuaded by the lessons of experience and the force of better reason.’”

The Court of Appeals reasoned that one of the primary goals of tort law is to require individuals to be aware of the risk of harm their behaviors could impose on others, and to compel individuals to take reasonable steps to prevent foreseeable harm. It concluded that Bard was inconsistent with this principle when it exempted owners of domestic animals from liability based on a theory of negligence. 

The Court observed that the inability to maintain a negligence claim shifted the burden from the owner of a dog to those injured by one, and gave dog owners “little reason to familiarize themselves with any potential proclivities that might lead the animal to cause harm, and in turn, to take reasonable steps to prevent any harm that may result.”

The Court acknowledged that one of the goals of Bard was to provide an easy-to-follow rule – even if it was fatal to negligence claims. However, it observed that the progeny of Bard has resulted in a number of carveouts that allow negligence claims against owners of domestic animals in certain situations. This, according to the Court of Appeals, made adhering to Bard based upon the principle of stare decisis all the less compelling. 

To that point, Flanders cited a portion of the descent in Bard, which asked “Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull?” The Court concluded that in light of the inconsistencies and lack of uniformity in the aftermath of Bard, stare decisis did not support the continued prohibition on negligence claims by plaintiffs harmed by a domestic animal. 

A plaintiff now has the choice to proceed under a theory of strict liability (i.e., that the owner knew or should have known that the animal had vicious propensities), or a theory of ordinary negligence (i.e., that the defendant failed to exercise due care), or most likely advance both theories.

While the impact of the decision in Flanders remains to be seen, it is fair to assume that certain cases involving dog bites and injuries caused by other domestic animals were not pursued because of the prohibitions set forth in Bard. Potential plaintiffs and plaintiffs’ counsel are now more likely to do so given that Bard has been overruled. 

Colin D. Ramsey is a Partner in Underberg & Kessler LLP’s Health Care, Labor & Employment, and Litigation practice groups. He defends nursing homes and medical providers against negligence and malpractice claims, municipalities against personal injury and property damage claims, and individuals and businesses in labor and employment claims. He can be reached at cramsey@underbergkessler.com or 716-847-9103.

Reprinted with permission from The Daily Record and available as a PDF file here.