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Application of Revised "First Bite" Doctrine Results in Dismissal of Suit

November 1, 2011

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In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith's bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury.

Defendant moved for summary judgment, citing that she had "no knowledge of her dog's alleged propensity to interfere with traffic." At trial, the Court denied defendant's motion, because the court ruled that the prior instances of the dog of escaping defendant's control and running towards the road constituted triable issues of material fact.

The Court of Appeals disagreed and reversed, because the dog's prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog's propensity.

Thanks to Brian Gibbons for his contribution to this post.

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