When a horse kicks or bucks into an unlatched gate injuring an individual, does it involve a question of "premises liability" or "strict liability for violent propensities of an animal"? This instant motion involves the same concerns outlined in the dissenting decision in Bard v. Johnke, 6 NY3d 592 and the concurring decision in Petrone v. Fernandez, 12 NY3d 546. This Court previously ruled that this case involves a question of fact as to premises liability. Defendant has moved for leave to reargue for this Court's "inadvertent overlooking" of Petrone. In fact, there was nothing inadvertent about it. This Court, determining a question of premises liability existed, never considered the full impact of Petrone and Bard. A review of this case law requires this Court to reconsider the prior motion.

Plaintiff, Joanne Krieger, is the mother of defendant, Vicky Cogar, and was in defendant's backyard barn when a week-old colt backed up into the stall door which struck plaintiff, injuring her. Defendant was in the process of haltering the colt for the first time. The colt was described by defendant as "skittish", "nervous", "jumpy". Accordingly, defendant instructed her children to stay away from the gate and left the gate unlatched in order to leave the stall if the colt acted up. Defendant was in the process of haltering the colt when her mother walked in . While plaintiff was leaning on the gate, the colt backed up into the stall gate sending the plaintiff [*2]"flying".

In Bard, the plaintiff was injured by a breeding bull allowed to run free in the barn plaintiff was working in. The Court of Appeals, in an opinion by the brilliant Judge Susan Read, stated:

"In sum, when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier ". 6 NY3d at 599. Collier v. Zambito, 1 NY3d 444, stated the rule in New York as to damages caused by domestic animals, "that the owner of a domestic animal who either knows or should have known of that animal s vicious propensities will be held liable for the harm the animal causes as a result of those propensities." Collier, 1 NY3d at 446. Bard ruled an animal's vicious propensities as the sole cause of action for damages caused by a domestic animal. Petrone cemented this. In Petrone, plaintiff was injured while fleeing an unleashed, pursuing rottweiler. Plaintiff sought to impose liability due to the dog owner's violation of a local leash law. Again, Judge Read instructed, "When harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier . . . ie., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities . . .the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face, that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned . . .Here, defendant's violation of the local law is irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability after Colliver and Bard. 12 NY3d at 550. WOW!

Accordingly, a pure reading of Colliver and Bard and Petrone necessitates that this motion be reconsidered in defendant's favor. "Vicious propensities" cannot be found in the actions here of a one week old colt. However, I am as troubled as Judge Smith and Judge Pigott in Bard and Petrone, respectively. I look at this case as the plaintiff being hurt by a swinging gate — not a horse. At the same motion date, this Court considered a laborer who was injured by a swinging door on a storage trailer. A wind gust swung the door violently into the laborer. If I had granted summary judgment, would not appellate level courts opine that a question of fact exists as to whether the site owner acted reasonably? Can you sue for the movement of wind but not for the movement of a horse? What if instead of a swinging gate, the movement of the colt caused a heavy bale to descend from the rafter of the barn and crush the plaintiff? I believe the question of whether defendant was negligent here is best left to a jury - but Bard, Collier, and Petrone do not allow this.

Motion to reargue and defendant's motion to dismiss granted.

Submit settled Order.

HON. RICHARD C. KLOCH, SR.

Acting Supreme Court Justice