The Second Department determined the complaint in this dog-injury case was properly dismissed. It was alleged the dog ran at plaintiff at full speed, jumped up on its hind legs, struck plaintiff in the chest and knocked her to the ground:
To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities ;;; . “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” … . Indeed, “[a] known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act” … .
The defendants’ submissions, including the deposition testimony of the defendants and the plaintiffs, as well as the defendants’ affidavits, demonstrated that prior to the subject incident, the dog was not aggressive, and did not growl or spontaneously jump on people in the fashion described by the injured plaintiff. The defendants did not restrain the dog to keep it away from guests in their home. Accordingly, the defendants established their prima facie entitlement to judgment as a matter of law … .
In opposition, the plaintiffs failed to raise a triable issue of fact. While the plaintiffs note that the defendants “trained” their dog to jump up on them on command, the deposition testimony of the defendants made clear that the dog only did so when prompted and only on immediate family members. They specifically testified that their dog had never jumped on an individual outside the immediate family. Such a jump on command is very different from the type of jump described by the injured plaintiff. Gammon v Curley, 2017 NY Slip Op 00630, 2nd Dept 2-1-17
ANIMAL LAW (DOG INJURED PLAINTIFF BY RUNNING AND JUMPING UP ON HER IN PLAY, COMPLAINT PROPERLY DISMISSED, DEFENDANTS DEMONSTRATED THE DOG DID NOT HAVE A PROPENSITY TO JUMP IN PLAY EXCEPT ON COMMAND)/DOGS (DOG INJURED PLAINTIFF BY RUNNING AND JUMPING UP ON HER IN PLAY, COMPLAINT PROPERLY DISMISSED, DEFENDANTS DEMONSTRATED THE DOG DID NOT HAVE A PROPENSITY TO JUMP IN PLAY EXCEPT ON COMMAND)