Petrella v. O'Connor

Full title: FRANK M. PETRELLA, Appellant, v. ROBERT J. O'CONNOR et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jan 29, 1985

107 A.D.2d 1082 (N.Y. App. Div. 1985)

Opinion

January 29, 1985

Appeal from the Supreme Court, Erie County, Wolf, J.

Present — Doerr, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.

Order and judgment affirmed, without costs. All concur, except Schnepp, J., who dissents and votes to reverse in the following memorandum.

Schnepp, J. (dissenting).

Defendant admitted at his deposition that the cat's "particular resting spot" was on the stairs leading up to the rear door of his house and that the cat had a habit of rushing into the house when the door was opened, yet he failed to warn plaintiff of the animal's behavior. This testimony establishes that triable questions of fact were raised as to whether the cat's behavior created a source of danger which defendant might reasonably have foreseen, thus giving rise to a duty to warn, the breach of which may have been a proximate cause of plaintiff's injuries (cf. Basso v. Miller, 40 N.Y.2d 233, 241; Steubing v. Hooper, 272 App. Div. 865, affd 297 N.Y. 660).