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Does the Nature of a Dog Bite always Demonstrate Knowledge of Vicious Propensities? (NY)

December 4, 2020

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<span style="font-size: 12.0pt; line-height: 107%; font-family: 'Times New Roman',serif;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Costanza-v-Scarlata.pdf">Costanza v Scarlata</a></em>, 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.</span>

<span style="font-size: 12.0pt; line-height: 107%; font-family: 'Times New Roman',serif;">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.</span>

<span style="font-size: 12.0pt; line-height: 107%; font-family: 'Times New Roman',serif;">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. <b><i>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</i></b>. 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).</span>

<span style="font-size: 12.0pt; line-height: 107%; font-family: 'Times New Roman',serif;">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”. </span>

<span style="font-size: 12.0pt; line-height: 107%; font-family: 'Times New Roman',serif;">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.</span>

Thanks to Corey Morgenstern for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.

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