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Judge Takes Bite Out of Domestic Animal Liability (NY)

February 9, 2018

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When “man bites dog,” there will probably be a news story.  When “dog bites man,” there will probably be a lawsuit.  Under New York law, that also means strict liability if the dog owner knows or should have known about the dog’s vicious propensities.
When ascertaining an owner’s knowledge, courts have traditionally looked to the animal’s history.  Has the dog bitten anyone before?  Does the dog have a history of flashing its teeth and growling at people?  Maybe an overly-friendly lag has a history of jumping people?
In a recent decision, however, the New York County Supreme Court departed from the practice of looking to the past.  In <em><a href="">Reif v. Leff</a>,</em> a dog owner was sued after his dog attacked a plaintiff who was allegedly trying to break up a fight between her dog and the defendant’s dog.  After submitting evidence that he had no knowledge of any vicious propensities and that the dog, even when unleashed, had always been cordial or uninterested in people or other dogs, the defendant moved summary judgment.
Despite any evidence of past behavior indicating vicious propensities, the court denied the defendant’s motion for summary judgment.  In doing so, the court reasoned that there was a question of fact as to how the incident at issue began.  In the court’s words, “[a]n attack that is severe and unprovoked is an indicia of vicious propensities.”
By citing current behavior as an indicator of vicious propensities, the court departed from New York’s traditional practice of looking to the past when analyzing whether to impose strict liability on a dog owner.  Surely, most dog bite cases evince at least an iota of "vicious propensity" -- otherwise, there would have been no bite.   Until now, the standard has been <em><strong>prior notice</strong></em> of a vicious propensity.   We strongly suspect an appeal will be forthcoming.   And if affirmed, this decision will change the standard for summary judgment in dog bite cases.  Thanks to Mike Gauvin for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions..
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