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VERDICT IN THIS DOG BITE CASE WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE, EVIDENCE THAT THE DOG BIT PLAINTIFF’S FACE WHILE ATTEMPTING TO BITE THE FOOD IN PLAINTIFF’S HAND AND EVIDENCE THAT THE DOG ONLY BECAME RAMBUNCTIOUS AROUND FOOD SUPPORTED THE JURY’S CONCLUSION THAT THE DOG HAD NOT EXHIBITED VICIOUS PROPENSITIES (SECOND DEPT).

The Second Department determined the motion to set aside the verdict as against the weight of the evidence in this dog bite case was properly denied. Infant plaintiff was bitten in the face when the dog jumped and attempted to bite the food in plaintiff’s hand. The jury found that the dog did not have vicious propensities. The evidence that the dog only became excited and rambunctious around food supported the jury’s verdict:

Pursuant to CPLR 4404(a), a court may set aside a jury verdict as contrary to the weight of the evidence. A verdict is contrary to the weight of the evidence when ” the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence'” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . The discretionary power to set aside a jury verdict must be exercised with considerable caution, “for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict”… . Additionally, in making this determination courts should keep in mind that “[i]t is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that ” the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities'” … . This knowledge may be established with evidence of “prior acts of a similar kind of which the owner had notice” … . However, “normal canine behavior” does not establish vicious propensities, and “rambunctious behavior will show awareness of a vicious propensity only if it is the very behavior that resulted in [a] plaintiff’s injury” … . M.B. v Hanson, 2019 NY Slip Op 00106, Second Dept 1-9-19

 

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