Dog Doesn’t Get One Free Bite If Propensity To Do So Is Evident Prior To Attack (NY)In Zicari v. Buckley, 2023 NY Slip Op 00788 (4th Dept. 2023), plaintiff alleged serious injuries due to a dog attack when he visited the defendant’s home to obtain signatures on a local political petition, and immediately upon the door opening, was attacked by defendant’s dog. Defendant said the dog had never attacked anyone before that day. At pretrial phase, Defendant moved for summary judgment to strike the dog bite claim, arguing they had no prior knowledge of any dangerous or violent propensity from the dog. Defendant further argued that “the dog was protective” and would protect the house when a “stranger” entered it. The trial court granted summary judgment on this issue. The plaintiff appealed and the Fourth Department overturned the trial court’s decision, holding that defendant failed to meet his initial burden on that part of the motion seeking to dismiss the “propensity” argument because defendant/owner failed to establish that he neither knew nor should have known that the dog had any vicious propensities (see Young v. Grizanti, 164 A.D.3d 1661, 1662 [4th Dept 2018]; cf. Brady v. Contangelo, 148 A.D.3d 1544, 1546 [4th Dept 2017]). The appellate division noted that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” (Collier v. Zambito, 1 NY3d 444, 447 ). The evidence showed prior veterinary records indicating the dog had known territorial issues and that the dog barked at people it did not like. The owner was recommended to engage the dog in socialization exercises to help with these issues. The court felt these factors could be used to show the owner should have known of the dog’s propensity for violence. The Fourth Department’s reasoning shows that any past evidence of aggression by animals, even if that evidence does not show any physical manifestation of violence or prior attack, can be used to prove a propensity for violence thus leaving it for a jury to decide. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, feel free to contact Tom Bracken.Read More
Vet Clinic Denied Summary Judgment In Mistaken Dog Bite Case (NY)
New York courts do not recognize a cause of action for common-law negligence in dog bite cases, but an injured plaintiff can recover under a theory of strict liability if they can meet the specific burden of proof. In Ciaccio v. Mamaroneck Veterinary Hosp., P.C., 2019 N.Y. Misc LEXIS 1254, the Supreme Court of New York, Westchester County, addressed these issues in a case where a dog owner sued a veterinary clinic after the clinic returned the wrong dog to plaintiff and the dog bit her. Plaintiff had left her dog at the clinic for veterinary services and the clinic erroneously returned another dog of the same size, breed, and color without looking at the name tag. The clinic moved for summary judgment on plaintiff’s strict liability claims.
In reviewing the legal standards, the court observed that plaintiff could recover upon a theory of strict liability if he or she can prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities. The court stated that there is no bright line rule that a prior comparable vicious act is required in order to prove same. In fact, evidence tending to prove that a dog has vicious propensities could include a prior attack, the dog’s tendency to growl, snap or bark its teeth, the manner in which the dog is normally restrained, and a proclivity to act in a way that puts others at risk of harm.
In opposing summary judgment, the clinic argued that plaintiff could not establish that the dog had any vicious propensities or that defendants had any knowledge of its vicious behavior. However, the vet who owned the clinic refused to testify as to his knowledge of the dog’s propensities, claiming that he was prohibited by law from answering questions regarding another client’s animal without that client’s written consent, which was not provided. Plaintiff argued in support of the motion that the traditional dog bite analysis was inapplicable because the clinic was a commercial enterprise and not a protected class of pet owner. She further argued that the clinic was negligent in failing to look at the dog tag and she also introduced a behavioral expert to explain the dog’s reaction.
The Court ultimately denied the motion for summary judgment, finding that the clinic failed to eliminate all issues of triable fact as to whether they should have known of the vicious propensities of the dog since the vet refused to answer any questions concerning this issue. The court observed that it was immaterial whether the clinic was the owner of the dog as long as they kept the dog. Harboring the dog at one’s premises or allowing it to remain there qualifies as keeping the dog under the law. In an apparent criticism of New York’s failure recognize negligence claims in dog bite cases, the court also joined “the chorus line of other jurists” in “voicing frustration and displeasure at the fundamental unfairness of ignoring blatant negligence, which is overwhelming in this case…”
The Ciaccio case echoes New York’s rule limiting dog bite liability to strict liability claims but demonstrates that non-owners can be liable if they have control over the premises where a dog is kept and knowledge of the dog’s vicious propensities.
Thank you to Tristan Montague for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More
No Liability In NY For Barking DogIn the recently decided Stack v. Manfredi the Bronx County Supreme Court granted summary judgment in favor of defendants who demonstrated that they had no knowledge of their dog’s vicious propensities. The decision resulted in a dismissal of plaintiff’s complaint, which arose from alleged personal injuries when she braced herself against the defendants’ door to prevent being bitten by their dog.
Plaintiff argued that the defendants knew or should have known of the dog’s propensities prior to the incident because both defendants testified that their dog 1) bark at unfamiliar individuals coming on to or near their property; 2) bark daily at their mail carrier; 3) the dog was territorial and sensitive to noise; 4) the dog would be at the door barking at individuals approaching the front door; and 5) the dog would not stop barking at people who entered the residence until one of the defendants told the dog “it’s okay.” Plaintiff further contended that the “Beware of Dog” sign and its breed (pitbull) were contributing factors that alerted the defendants of the dog’s propensity. Thus, making the defendant owners strictly liable in tort and negligence. Here, the plaintiff relied on Collier v Zambito, 1 NY3d 444, 446  and Bard v. Jhanke, 6 NY3d 592, 848 N.E.2d 463, 815 N.Y.S.2d 16 (2006), to demonstrate the dog’s proclivity to behave in a vicious manner
Defendants’ summary judgment motion was founded on the basis that their dog never actually bit the plaintiff nor was there any evidence that the dog had a propensity for violence. Contrary to the aggressive behavior asserted by plaintiff, defendants argued that the dog was “friendly and had never growled at, chased, bitten, or attacked anyone.” Additionally, the defendants had never received any prior complaints of the dog’s behavior. Thus, there was neither actual nor constructive notice of the dog’s vicious propensities.
In light of the defendants’ arguments above, the Court held that defendants had no actual or constructive knowledge of the dog’s alleged vicious propensity and its “normal canine behavior” did not serve as any notice to impose strict liability on the defendants. Additionally, the Court noted that the “Court of Appeals has never held that particular breeds of domestic animals are dangerous, and therefore when any breed or type of dog causes harm, its owner is charged with knowledge of vicious propensities.” In addressing plaintiff’s negligence claim, the Court held that the defendants owed no duty to the plaintiff.Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions.Read More
Vicious Propensity Rule: Not a Protection for All (NY)
In Hewitt v. Palmer Veterinary Clinic, PC, 35 N.Y.3d 541, 547, 159 N.E.3d 228, 231 (2020), the plaintiff sustained injuries in the Palmer Veterinary Clinic’s waiting room when a dog attacked her, resulting in bodily injuries.
The defendant Palmer raised the vicious propensity rule and argued that it had no prior knowledge of the canine’s vicious propensities. The Appellate Division agreed with Palmer, finding that the clinic “could not be held liable without notice of an animal’s vicious propensities”, relying on the Court of Appeals precedent dismissing claims against animal owners in the absence of proof of such notice.
Plaintiff appealed the Appellate Division’s finding, and argued that the vicious propensity rule should not and does not apply to Palmer, as the rule only applies to owners of dogs known to have the vicious propensities. “An owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities (see Collier, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” (id. at 448, 775 N.Y.S.2d 205, 807 N.E.2d 254).
On appeal, the Court of Appeals agreed with plaintiff that Palmer is “a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals.” As veterinary clinics “are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.”
The Court of Appeals concluded that Palmer is not afforded the protections of the vicious propensity rule. Ultimately the court found that defendant Palmer may still be subject to a negligence claim, despite the clinic’s lack of notice of the dog’s vicious propensities.Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions.Read More
Does the Nature of a Dog Bite always Demonstrate Knowledge of Vicious Propensities? (NY)In Costanza v Scarlata, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after defendant’s dog bit plaintiff on her face. The plaintiff alleged that defendants had a dog with vicious propensities, and as such, defendants moved for summary judgment on the basis that they didn’t have knowledge of any vicious propensities. The court stated, “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. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” (citations omitted). The defendants were able to show they were entitled to summary judgment by showing: 1) they were not aware (or should have been aware), that their dog ever bit anyone; 2) they were not aware that their dog ever exhibited prior aggressive behavior; and 3) that although their dog occasionally jumped on people when greeting them, it was not enough to create an issue of fact as to whether the dog had vicious propensities. The court added that the “nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog’s vicious propensities”. This decision serves as a reminder that in a dog bite case, just because the attack may be severe, it does not mean the defendant is always liable. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.Read More
Beware: The Accountability of Dealing with Pets, Even if They Are Not Yours! (NY)
Traditionally, in New York, a pet owner is responsible for the known vicious propensities of their pets. But who is responsible when the pet in question does not belong to the owner at the time of the injury? This was addressed in the recent Court of Appeals decision in Hewitt v Palmer Veterinary Clinic, PC, N.Y.3d, 2020 WL 6163313 (2020). In this case, the plaintiff brought her cat into defendant’s veterinary clinic and remained in the waiting room to be seen. During this time, a veterinarian brought a dog who had just undergone surgery into the same waiting room. Upon seeing the cat, the dog escaped its collar and jumped at the plaintiff from behind, attempting to reach the cat.
The plaintiff alleged that the veterinary clinic had a duty to provide a safe waiting room and breached such a duty by allowing an agitated dog to enter the waiting room. Conversely, the veterinary clinic argued it had no prior knowledge of the dog’s dangerous propensities as it was not its owner and therefore, cannot be held liable.
Prior case law in New York has established that when a domestic animal causes harm, liability is determined by showing prior vicious propensities. Bard v. Jahnke, 6 N.Y.3d 592 (2006). Under the Bard rule, an animal may have vicious propensities even it behaves in a manner that would not necessarily be considered dangerous or ferocious if such behavior reflects “a proclivity to act in a way that puts other at risk of harm and such proclivity results in an injury.” This determination, specifically applicable to New York, strays from established precedent which provide that domestic animals may be dangerous under certain circumstances and owners must exercise reasonable care to prevent foreseeable harm.
With this controversial and unpopular rule, cases had yet to address, until now, whether a non-owner remains liable for injuries caused by animals when the non-owner is unaware of the animal’s vicious propensities.
The courts recent decision in Hewitt, created an exception to the Bard rule. It held that veterinary clinics have a specialized knowledge of animal behavior and can create circumstances that may give rise to a substantial risk of aggressive behavior. Therefore, veterinary clinics can be liable for failing to exercise reasonable care even without prior notice of an animal’s vicious propensities. Because this is limited to non-owners who are veterinarians, the question of other non-owners remains open for further interpretation.
The realm of animal liability continues to evolve. But with the continued popularity of owning various and sometimes odd domestic animals, it seems this area of law will continue to progress in future litigation.
Thank you to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions.Read More
Dogs Will Be Dogs – Posted Rules at Dog Run Merely a Suggestion? (NJ)
In Freed v. Bastry, the New Jersey Superior Court, Appellate Division, considered whether park guidelines for an off-leash dog area imposed a duty upon dog owners to other park goers in the off-leash dog area. The case arose after Defendants’, Linda and Frank Bastry (the “Bastrys”), over-eager, male golden retriever ran into the plaintiff, Janet Freed (“Freed”), during playtime with Freed’s female golden doodle. The resulting fall caused Freed to suffer a broken leg.
Posted at the off-leash area entrance were guidelines prohibiting dogs “with a history of dangerous or aggressive behavior” and “puppies under [four] months old” and stating, “Dogs over [six] months old must be spayed or neutered.” The Bastrys’ golden retriever was seven and a half months old and not neutered. The retriever also had yet to receive obedience training. Freed’s expert in canine behavior opined that un-neutered dogs tend to be more aggressive towards humans and other dogs than their neutered counterparts. The expert made particular note of Bastrys’ deposition testimony that the retriever had become “very excited” after the ride in the car. The expert concluded that had the retriever been neutered prior to the visit to the dog park, it would have been less aggressive and thus less likely to have injured Freed.
On summary judgment, Freed argued that the guidelines were put in place to prevent such aggressive dog behavior. The trial court disagreed, refusing to impose a duty on dog owners to monitor their dog’s behavior in an off-leash area, when the purpose of an off-leash area is to allow dogs to roam free. On appeal, the Court agreed with the trial court’s conclusion. In her appeal, Freed argued that the posted guidelines had the full force of a statute or enacted regulation, and as a result, Bastrys’ violation of the posted guidelines was negligence per se. Although, as the Court noted, Freed never provided evidence from the area Board adopting the guidelines as regulations or imposing penalty for a violation, the Court agreed with Freed that the guidelines may have been designed to prevent aggression from older dogs. However, the Court found the guidelines were not intended to limit the risk of normal dog behavior and playtime or limit, as succinctly stated by the Court, “[the risk of] one dog, running after another dog and, in the process, colliding with a human.”Despite breaking the rules and injuring someone, the courts would not impose a duty on the dog owner in an off-leash area. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Vincent Terrasi with and questions or comments.Read More
Plaintiff Gets Second Bite at Defendant’s Dog (NY)
In Lipinsky v Yarusso (2018 NY Slip Op 05925), two co-workers and friends ended up as adversaries when the defendant’s dog bit the plaintiff’s left thumb.
After the dog bit the plaintiff, he filed a lawsuit in Suffolk County Supreme Court. The defendant then filed a motion for summary judgment, asking the Court to dismiss the lawsuit because his dog did not demonstrate vicious propensities, and even if the dog did, the plaintiff was not aware of such propensities. The plaintiff’s opposition to the motion included an affidavit from the plaintiff’s neighbor stating that on two occasions prior to the incident, the defendant warned the neighbor to be careful near the dog because he bites. Nonetheless, the Court granted the motion dismissing the lawsuit.
The plaintiff appealed the dismissal and the Appellate Division reversed the trial court’s findings. The decision addressed the law and the facts, and reinstated the action because there were questions of fact regarding the defendant’s dog’s vicious propensities.
The appellate decision discussed the legal standard pertaining to liability for dog bites, holding that “to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. The Court also held that “evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.”
Applying this law to the facts as stated in the affidavit from the plaintiff’s neighbor, the Appellate Division held that the Supreme Court erred in dismissing the lawsuit. Specifically, the decision held that the affidavit from the plaintiff’s neighbor was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities.
Thanks to George Parpas for his contribution to this article.Read More