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Vicious Propensities Not Demonstrated, Summary Judgment Properly Awarded to Defendants

The Second Department determined summary judgment was properly awarded to defendants in this dog bite case. Plaintiff, a postal worker, alleged the dog “flew” out of defendants’ house and attacked as she approached the house to deliver mail:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities” … . Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl, snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating, through their deposition testimony, that their dog was friendly and had never growled at, chased, bitten, or attacked anyone, and that they were unaware of any prior complaints about their dog’s behavior … . Specifically, the defendants testified at their depositions that their dog had lived with them and their small children for approximately five years prior to this incident, and the dog had never previously attempted to run out their front door … . The defendants also testified that they had never seen their dog act aggressively toward a mail carrier. Jackson v Georgalos, 2015 NY Slip Op 08387, 2nd Dept 11-18-15

 

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