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THE STRICT LIABILITY STANDARD IN DOG-BITE CASES APPLIES HERE WHERE THE DOG WAS HARBORED BY THE DEFENDANT UNTIL THE ANIMAL SOCIETY COULD FIND SOMEONE TO ADOPT HIM; THE NEGLIGENCE STANDARD WHICH APPLIES TO A DOG-BITE IN A VETERINARIAN’S WAITING ROOM (WHERE THE VETERINARIAN IS THE DEFENDANT) IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined the plaintiff’s motion to amend the complaint in this dog-bite case by adding a negligence cause of action was properly denied. The Court of Appeals recently held that a veterinarian could be liable for a dog-bite under a negligence theory where a dog in the veterinarian’s waiting room bit a customer. Here the dog was owned by an animal society and had been placed with defendant O’Rourke until the society could find someone to adopt him:

Although O’Rourke does not own the dog that bit plaintiff, “[a]n owner’s strict liability for damages arising from the vicious propensities and vicious acts of a dog ‘extends to a person who harbors the animal although not its owner’ ” … . * * *

Even assuming, arguendo, … [plaintiff could assert] a negligence cause of action against O’Rourke, … plaintiff would still have to establish in support of her negligence cause of action that O’Rourke had knowledge of the dog’s alleged “vicious propensities” … . … “[T]he vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet owners—such as landlords who rent to pet owners—under a negligence standard … .

… [P]laintiff’s proposed negligence cause of action against O’Rourke does not allege that O’Rourke had knowledge of the dog’s vicious propensities; instead, it alleges that O’Rourke was negligent because she did not “investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe.” The proposed complaint therefore fails to state a viable negligence cause of action against O’Rourke. Cicero v O’Rourke, 2022 NY Slip Op 07316, Fourth Dept 12-23-22

Practice Point: The Court of Appeals recently held a veterinarian could be liable under a standard negligence theory for a dog-bite which occurs in the veterinarian’s waiting room because of the specialized knowledge of animal behavior attributed to a veterinarian. The negligence standard does not apply to a person who is harboring a dog for an animal society until someone adopts the dog. In that case, the strict liability (requiring knowledge of the dog’s vicious propensities) standard still applies.

 

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