Roosevelt Island; The Case of the Scared Mailman

Roosevelt Island isn't very big, but apparently one dog run isn't enough for certain selfish dog owners, who want to put it in part of a park. The question is what part of the park it will replace: basketball court, fountain, lawn or trees. And note the response about the unleashed dogs at the end.

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In July, 2008 we blogged about the Appellate Division, Second Department's decision in Petrone v. Fernandez. Melanie Petrone was a postal worker who was injured on the job while escaping an illegally unleashed dog--a rotweiler--who was chasing her. The dog hadn’t before shown any “vicious propensities”. Petrone sued the owner on the theory that the owner was nonetheless negligent--per se-- by violating the leash law, the same way you might be negligent, per se, if you crash your car into someone while speeding. Reversing the trial court, the appellate court allowed the case to proceed on that theory. But caution—considerable caution—is in order, for two reasons. At the time we advised considerable caution because, we observed, the issue hadn't yet been address by New York's highest court, the Court of Appeals, and a different court of the appellate division, the Third Department (located in Albany) had previously held (in Alia v Fiorina) that the owner of a dog that causes injury isn’t negligent unless the dog had previously shown “vicious propensities”, even if the owner has violated a local leash law.

Our cautionary note was justified. It seems that in June, the Court of Appeals reversed the Second Department, holding, based on its own 2006 decision in Bard v Jahnke, that unless the owner knew or should have known of the dog's "vicious propensities" (e.g., it had bitten before), "defendant's violation of the local leash law is 'irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability'". You can read the decision here.

The decision is profoundly disturbing, but is completely unacceptable when dogs may now be unleashed legally, and when the leash law is not enforced when dogs must be leashed. Here is what that decision means. The off-leash rules require that the dog be under the owner's control. Of course that's nonsense, but you'd think--and I'm pretty sure that comments were submitted saying this--that the threat of civil liability would induce dog owners to keep their unleashed pets under some sort of control So an unleashed dog bites a passerby. Obviously, the dog is not under control. So, you'd say, the owner is negligent and therefore liable. Not according to the Court of Appeals. Well, what about an illegally unleashed dog that bites a passerby, or so aggressively menaces the passerby that the victim falls into a ditch or has a heart attack. Surely the owner is automatically negligent then? Not according to the Court of Appeals.

In short, a properly-advised owner of any nearly any dog that hasn't actually bitten someone before will ignore the threat of civil liability--it doesn't exist--in deciding whether to comply with the leash law. As we've seen, there is no credible threat of a meaningful fine, at least in the city's parks. So why should a dog owner who would otherwise unleash his or her animal comply with the law in the parks? Because, you say, maybe the owner is a considerate, law abiding citizen?