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Dog Doesn't Get One Free Bite If Propensity To Do So Is Evident Prior To Attack (NY)

March 10, 2023

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In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/Zicari-v.-Buckley.pdf">Zicari v. Buckley</a>, 2023 NY Slip Op 00788 (4th Dept. 2023)</em>, 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 <em>Young v. Grizanti</em>, 164 A.D.3d 1661, 1662 [4th Dept 2018]; cf. <em>Brady v. Contangelo</em>, 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" (<em>Collier v. Zambito</em>, 1 NY3d 444, 447 [2004]). 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 <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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