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October 15, 2001


The opinion of the court was delivered by: Gerard E. Lynch, District Judge:


Plaintiff Margaret E. Wheeler, an employee of a veterinary hospital in New York, brings this action in negligence and strict liability against defendants Karmen Couret, a dog owner, and Laurie Culbert, a veterinarian, as a result of being bitten by a sick dog at her place of employment. Defendants move for summary judgment, arguing variously that the suit against the veterinarian, a fellow-employee, is barred by the New York Workers' Compensation Law, that the cause of action in strict liability against the dog owner fails because of the absence of evidence of vicious propensities on the part of the dog, and that the action fails against both defendants by reason of assumption of risk. For the reasons that follow, summary judgment is granted for defendant Culbert, but denied as to defendant Couret.


The basic facts of the incident are, for the most part, undisputed. Plaintiff Wheeler worked as office manager of an animal hospital in Manhattan. Defendant Culbert was employed at the same location as a veterinarian. On November 5, 1999, Culbert brought to the hospital a dog, an English pointer named Sebastian, who was owned by defendant Couret. Sebastian had been diagnosed with a painful cancerous condition, and Culbert had agreed to bring him to the hospital for a consultation with a staff oncologist. Culbert, a friend of Couret, was aware of Sebastian's condition, and was also aware that on two previous occasions Sebastian had bitten people who approached him. (The parties disagree about the circumstances and implications of these prior incidents.) While Culbert may have said something about Sebastian's condition to another employee, there is no contention that either Culbert or that employee told Wheeler anything about the dog's illness or his prior biting episodes.

Culbert left the dog, unattended and unmuzzled, in the reception area of the hospital, near where Wheeler was working. Sebastian lay quietly near a set of drawers under the fax machine. After a short time period (the parties do not agree on the time, but in no one's estimate more than twenty minutes), Wheeler, in the performance of her regular duties, went to retrieve something from a drawer near the dog, and in the process bent over, bringing her face within fairly close proximity to the dog's muzzle. Sebastian responded by biting Wheeler in the face, resulting in the injuries for which she seeks compensation from Culbert and Couret.


I. Choice of Law

As federal jurisdiction in this matter is based on diversity of citizenship (plaintiff is a citizen of New York, and both defendants are citizens of Connecticut), state law will govern the substantive issues, and the conflict of laws rules of the forum state, New York, determine which state's laws control. See, e.g., Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). The parties appear to agree that New York law applies, and that is the correct conclusion. In tort cases, New York courts apply the law of the state with the greater interest in having its law applied to the issue in question. Padula v. Lilarn Properties Corp., 84 N.Y.2d 519 (1994). As to the negligence claim against Culbert, the allegedly negligent acts, any contributory conduct of plaintiff, and the resulting injury all occurred in New York, and New York is the site of the employment of both parties, so there is no question that New York negligence and Workers' Compensation law apply. While there may be a colorable argument that, because the dog and his owner lived in Connecticut, Connecticut law on the strict liability of animal owners might apply to the strict liability claim against Couret, defendant Couret does not make that argument, and rightly so: the injury occurred in New York, and Couret deliberately sent her dog to New York for treatment, thus invoking the protections and liabilities of New York law. New York has a strong, legitimate interest in applying its law to out-of-state animal owners who send their animals into the state.

II. Workers' Compensation

Culbert contends that Wheeler's action against her is precluded by New York's Workers' Compensation statutes. Like most states, New York has adopted a comprehensive, no-fault system for compensating employees for any "injury arising out of and in the course of employment." N.Y. Workers' Comp. L. § 10(1). This system provides the "exclusive remedy to an employee . . . when such employee is injured or killed by the negligence or wrong of another in the same employ." Id. § 29(6). See also id. § 11 (workers' compensation is exclusive liability of employer). Wheeler argues, however, that Culbert has failed to provide sufficient evidence that she and Wheeler were employed by the same employer. This argument is unpersuasive.

The parties agree that Wheeler was employed by Veterinary Centers of America, Inc. ("VCA") (Wheeler Aff Ex. 1.) Culbert's employment contract for 1999 was with Veterinary Centers of America-New York, P.C. (Haas Aff. Ex. G), and her 1999 W2 form identified her employer as Manhattan Veterinary Group, P.C. (Brennan Aff. Ex. 2). At her deposition, Culbert testified that she regarded these two entities as the same, but it was also clear she did not have specific knowledge of the corporate structure or the relationships among the two entities. (Culbert Dep. at 49-50.)

Culbert, however, provides an affidavit from Lawrence Cohen, who, according to Culbert's testimony, was the "regional medical director" of VCA, and the person with whom she discussed her salary and conditions of employment. (Culbert Dep. at 37.) Dr. Cohen's affidavit makes clear that the veterinary hospital where Wheeler and Culbert worked "operated as a single integrated institution providing veterinary services." VCA provided "administrative services" to the hospital pursuant to a management agreement, and the nonprofessional personnel of the hospital, including Wheeler, were employed by VCA to work at the hospital pursuant to that agreement. The medical staff of the hospital, including Culbert and Sheri Berger, a veterinarian who served as medical director of the hospital, were employed by a separate entity, which at different times was known as VCA-New York, P.C. and Manhattan Veterinarian Group, P.C. Berger, as the medical director of the hospital, was the direct supervisor of both Wheeler and Culbert, with day-to-day supervision of the activities of both, and authority to hire and fire both, subject to Cohen's approval. (Cohen Aff, Haas Aff. Ex. C.)

Cohen's affidavit also asserts that VCA operated a single payroll department for employees of both entities; that both Wheeler and Culbert were accordingly paid from the same bank account; that both Wheeler and Culbert received the same, VCA-provided, manuals on safety and employee rights and responsibilities; and that both Wheeler and Culbert were covered under the same Workers' Compensation policy, health insurance policy and retirement plan, all provided by VCA. (Id.)

Despite ample opportunity to develop further evidence through discovery, Wheeler offers no evidence of any kind to contradict or cast doubt on Cohen's statements, and no evidence of her own concerning the corporate structure ...

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