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Co-Tenants of Dog Owner Can Be Strictly Liable for Harboring a Dog with Vicious Propensities—Co-Tenants’ Motions for Summary Judgment Should Have Been Denied

The Second Department, in a full-fledged opinion by Justice Austin, determined the summary judgment motions by co-tenants of the owner of a dog which injured plaintiff should have been denied.  Although the cotenants did not own the dog, there was a question of fact whether the co-tenants “harbored” the dog.  The court further determined a joint trial including the cotenants was proper. The meaning of “harboring” and the proof requirements for “vicious propensities” were explained:

… [W]e hold that cotenants can be held strictly liable for a vicious attack by dogs owned solely by another cotenant, provided that there is evidence that the cotenants participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dogs’ owner in harboring the animals. We further determine that a unified trial is appropriate in this case. * * *

Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by the animal … . Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensity … . However, no liability can be found against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises … . * * *

“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'” … . “Once this knowledge is established,” the owner or anyone harboring the animal “faces strict liability” … . “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” … .

The owner or harborer of a dog with vicious propensities is not entitled to the benefit of the so-called “one free bite” rule … . Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent … .

Knowledge of an animal’s vicious propensities may also be discerned, by a jury, from the nature and result of the attack … . Matthew H. v County of Nassau, 2015 NY Slip Op 05157, 2nd Dept 6-17-15

 

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