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<\/a><\/p>\nKenneth M. Phillips.<\/strong><\/em><\/p>\n<\/div>\n Guest columnist Kenneth M. Phillips,\u00a0 of Los Angeles,\u00a0 an attorney since 1976,\u00a0 is the senior legal specialist in dog bite cases worldwide and is author of his own Dog Bite Law blog.<\/strong><\/em><\/p>\n On April 17, 2025, the highest court in New York state issued a blockbuster decision in Flanders v. Goodfellow that fixed a grave error it made in 2006. \u00a0That year, \u00a0the court ruled there was no such thing as dog owner negligence.<\/p>\n With this new ruling, \u00a0dog bite victims in New York can now seek compensation under two legal theories: \u00a0the ancient one free bite rule,\u00a0 and negligence.<\/p>\n But most Americans have a third option too: \u00a0state dog bite statutes. \u00a0To give New Yorkers equal protection, \u00a0the New York legislature must enact a strong, well-drafted dog bite law.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n In 2006, \u00a0New York\u2019s Court of Appeals made a gut-wrenching mistake. \u00a0In Bard v. Jahnke, \u00a0it ruled that a domestic animal owner could not be sued for negligently failing to prevent harm. \u00a0The court said liability existed only if the animal had previously shown a tendency to cause that specific harm \u2014 and if the owner knew about it.<\/p>\n Negligence was not enough. \u00a0The only \u201cwrongdoing\u201d was knowingly keeping a dangerous animal.<\/p>\n The facts of Bard illustrate this harsh rule. \u00a0Larry Bard, \u00a0a carpenter,\u00a0 was seriously injured by a breeding bull while working in a barn. \u00a0He had not been warned that the bull was inside. \u00a0The bull, named Fred, \u00a0had never hurt anyone before. \u00a0Because of that, \u00a0defendant Reinhardt Jahnke claimed through his attorney that he had no duty to warn Bard or remove Fred from the barn. \u00a0Bard\u2019s lawsuit was dismissed. \u00a0He got nothing for his broken ribs, \u00a0torn liver, \u00a0or aggravated spine injury.<\/p>\n From that point forward, \u00a0New York became the first state to explicitly reject negligence as a way to hold dog owners accountable. \u00a0Victims in the Empire State were stuck with the one free bite rule \u2014 and nothing else.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n The Bard court reaffirmed the \u201cone free bite rule,\u201d also known as \u201cfirst bite free rule.\u201d \u00a0The principle dates to 17th-century England \u2014 and even earlier.<\/p>\n Exodus 21:28-29 states:<\/p>\n \u201cIf an ox gore a man or a woman, \u00a0that they die: \u00a0then the ox shall be surely stoned, \u00a0and his flesh shall not be eaten; \u00a0but the owner of the ox shall be quit. \u00a0But if the ox were wont to push with his horn in time past\u2026and he hath not kept him in\u2026the ox shall be stoned, and his owner also shall be put to death.\u201d<\/p>\n In short: the owner was liable only if the animal had done it before and the owner failed to prevent it.<\/p>\n This rule came to America via English common law. \u00a0But most states later replaced it with statutory liability, \u00a0which made dog owners responsible for attacks even if the dog had never bitten before. \u00a0As one modern judge put it:<\/p>\n \u201cA dog should have no greater right to a first bite than one has to a first murder.\u201d \u2013 Clark v. Joiner, 242 Ga. App. 421 (2000) (Ruffin, J., concurring).<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n As I wrote in a memo to New York lawmakers:<\/p>\n \u201cThe \u2018one free bite rule\u2019 was announced centuries ago, \u00a0before the proliferation of the pit bull, \u00a0the availability of liability insurance, \u00a0and the passage of the first animal cruelty laws.<\/p>\n \u201cIn modern America, our ideas about personal responsibility are far different.<\/p>\n \u201cAdditionally, we have inexpensive liability insurance,\u00a0 and dangerous dogs who did not exist when the one free bite rule was announced (namely pit bulls).<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n The Bard decision was criticized for years by dissenting judges, lawmakers, and legal experts.<\/p>\n Justice R.S. Smith dissented:<\/p>\n \u201cThe rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, \u00a0and not one who is negligent in managing a horse or bull? \u00a0There are no good answers to these questions.\u201d<\/p>\n In 2019,\u00a0 New York state senator Robert Ortt asked me to help draft a dog bite statute. \u00a0The result was Senate Bill 122, \u00a0which added strict liability for dog bites. \u00a0I explained:<\/p>\n \u201cA dog bite can have the same painful consequences as a fall from a ladder, \u00a0but the dog bite victim is the only one who has to produce evidence that the accident happened before, \u00a0and that the defendant knew about it.\u00a0 Clearly, New York\u2019s civil liability law pertaining to dog bites must be changed.\u201d<\/p>\n Unfortunately, the bill stalled.\u00a0 Nothing changed until 2025, \u00a0when Flanders v. Goodfellow overturned Bard.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n On December 8, 2018, \u00a0postal carrier Rebecca Flanders went to the Goodfellows\u2019 home to deliver a package. \u00a0Their mailbox was missing, \u00a0so Flanders pulled into the Goodfellows\u2019 driveway. \u00a0She heard a dog barking, \u00a0but saw no warnings and had no alerts from her scanner.<\/p>\n Stephen Goodfellow opened the door. \u00a0As Flanders handed him the package and told him about the mailbox, \u00a0a large dog charged from inside the house. \u00a0The dog lunged at her neck. \u00a0She raised her arm in defense. \u00a0The dog bit her shoulder and tore muscle. Stephen Goodfellow pulled the dog off.\u00a0 She returned to her vehicle in shock. \u00a0The bite required several surgeries and left permanent scarring.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n The dog weighed 70 pounds. \u00a0As a puppy, \u00a0the dog dragged Michelle Goodfellow to the ground during a walk. \u00a0They hired a trainer. \u00a0Michelle Goodfellow later posted that the dog could run off-leash and tolerated other animals. \u00a0She said the dog did not interact with strangers.<\/p>\n But two postal workers swore the dog was dangerously aggressive. \u00a0One said the dog bit at the window,\u00a0 sprayed saliva,\u00a0 bared teeth, \u00a0barked, growled,\u00a0 and slammed into the glass.<\/p>\n He called it \u201cthe most aggressive\u201d dog he had ever encountered.<\/p>\n The other postal worker said the dog barked and snarled,\u00a0 slammed the dog\u2019s own face into the glass,\u00a0 and created a ruckus that anyone at home would notice.<\/p>\n He believed the dog was dangerous, \u00a0but didn\u2019t report the incident,\u00a0 thinking he could escape using the driveway.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n Flanders lost a summary judgment motion in the trial court and again on appeal. \u00a0The lower courts said she did not have enough evidence under the one bite rule, \u00a0and could not sue for negligence because of the Bard decision.<\/p>\n The Court of Appeals on April 17, 2025 disagreed on both counts.<\/p>\n Under the one bite rule, \u00a0the Court said that the dog\u2019s behavior \u2014 snarling, \u00a0slamming into windows, \u00a0baring teeth \u2014 raised \u201cquestions of credibility.\u201d<\/p>\n In plain terms, \u00a0it was up to a jury to decide whether the Goodfellows knew the dog was dangerous. \u00a0So summary judgment was reversed.<\/p>\n On negligence, \u00a0the Court was ready to overrule Bard. \u00a0Yes, \u00a0courts usually follow stare decisis<\/em> (\u201clet the decision stand\u201d), \u00a0but not always.<\/p>\n Citing past cases, \u00a0the Court said:<\/p>\n \u201cWhere we have concluded that a rule of non-liability is out of tune with the life about us,\u00a0 we have overruled it.\u201d<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n The Court then explained why Bard had to go:<\/p>\n The Court then reversed the summary judgment on a second ground, \u00a0holding that dog bite victims in New York may sue under the one free bite rule, \u00a0negligence, \u00a0or both.<\/p>\n The decision was unanimous.<\/p>\n (Beth Clifton collage)<\/strong><\/em><\/p>\n<\/div>\n In most states, \u00a0dog attack victims have three options:<\/p>\n \u2022\u00a0<\/strong> The one free bite rule,\u00a0 which requires the victim to prove that the dog bit someone before;<\/p>\n \u2022<\/strong>\u00a0 Negligence;<\/p>\n \u2022<\/strong>\u00a0 Statutory liability;<\/p>\n Flanders gave New Yorkers two of the three. \u00a0But that is not enough.<\/p>\n Statutory liability (often called \u201calmost-strict liability\u201d) offers compensation without forcing victims to prove the dog was known to be dangerous or the owner was careless. \u00a0This form of liability is limited\u2014it does not apply to trespassers or those who provoke dogs\u2014but it covers most victims.<\/p>\nby Kenneth M. Phillips<\/strong><\/h2>\n
<\/a><\/p>\nThe Background: Bard v. Jahnke<\/strong><\/h2>\n
<\/a><\/p>\nThe One Bite Rule<\/strong><\/h2>\n
<\/a><\/p>\nMemo to New York lawmakers<\/strong><\/h2>\n
<\/a><\/p>\nThe blowback after Bard<\/strong><\/h2>\n
<\/a><\/p>\nFlanders v. Goodfellow Rejects Bard<\/strong><\/h2>\n
<\/a><\/p>\nThe Dog\u2019s History<\/strong><\/h2>\n
<\/a><\/p>\nWhat the Court Had to Decide<\/strong><\/h2>\n
<\/a><\/p>\nWhy Bard had to go<\/strong><\/h2>\n
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<\/a><\/p>\nFlanders gives New Yorkers just 2\/3rds of a cup of justice<\/strong><\/h2>\n