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EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE.

The Second Department, reversing Supreme Court, determined defendant animal shelter could not be held liable for a dog bite, even if the shelter breached its duty to inform plaintiff, who adopted the dog, of the dog’s vicious propensities. The plaintiff observed the dog’s vicious propensities after bringing the dog home. Therefore, the animal shelter’s breach was not the proximate cause of the bite:

“For [two hundred] years … , the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … . “If such animal be delivered [by the owner] to another, he [or she] must inform such person of the animal’s vicious characteristics, so far as known, or ascertainable by the exercise of reasonable care. If such information be given, or the person to whom the animal is delivered knows, or before injury ascertains, the vicious character of the animal, the owner is not liable” … . The rationale for such rule is self-evident—informing a person who takes possession of an animal about the animal’s vicious propensities allows that person to take precautionary measures to protect himself or herself and others from harm caused by that animal’s vicious propensities.

Here, even if the defendant breached its duty to disclose the dog’s vicious propensities known to it, or “ascertainable by the exercise of reasonable care” at the time of the plaintiff’s adoption … , by failing to inform the plaintiff that the dog had previously bitten someone in the face, any such breach was not a proximate cause of the plaintiff’s injuries. The dog’s displays of aggressive behavior during the three and a half months the plaintiff owned it, and the fact that it first bit the plaintiff on July 13, 2012, gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012 … . Tighe v North Shore Animal League Am., 2016 NY Slip Op 05807, 2nd Dept 8-17-16

 

ANIMAL LAW (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)/DOG BITE (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)

DOG-BITE COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiffs’ complaint in this dog-bite case was properly dismissed. There was no showing the dog had ever exhibited any vicious propensities:

The evidence submitted in support of [defendants’ motion for summary judgment], including the deposition transcripts of the testimony of each plaintiff and each defendant, established that the defendants were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior or vicious propensities. The deposition testimony demonstrated that prior to the subject incident, the dog at most merely barked at guests when they first came to the house. The dog did not snap its teeth. It did not chase people. The dog generally stayed in the kitchen, but was not kept away for the safety of others. The infant plaintiff had been a guest on multiple occasions at the defendants’ home without concern about any vicious propensities of the dog. There was no evidence that the dog was trained to guard the home … . Ioveno v Schwartz, 2016 NY Slip Op 04023, 2nd Dept 5-25-16

 

DOG-BITE (COMPLAINT PROPERLY DISMISSED)/STRICT LIABILITY IN TORT (DOG-BITE COMPLAINT PROPERLY DISMISSED)

DOG-BITE STRICT LIABILITY LAW SUCCINCTLY EXPLAINED, DOG-OWNER’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

In this dog-bite case, defendant dog-owner’s cross motion for summary judgment should have been granted. The Second Department explained the relevant law:

 

Aside from the limited exception … regarding a farm animal that strays from the place where it is kept …, which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . Thus, “[t]o 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 . . . knew or should have known of such propensities” … . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others … . “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” … .

In support of their cross motion, the defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating, via their affidavits, that they were not aware, and should not have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior prior to the subject attack … . The defendants averred that they had no knowledge that their dog had ever acted in a hostile or an aggressive manner, and that it had never attacked, bitten, scratched, or otherwise acted in a violent or a belligerent manner towards any human or towards another dog prior to the subject incident … . Bueno v Seecharan, 2016 NY Slip Op 00706, 2nd Dept 2-3-16

 

ANIMAL LAW (DOG BITE STRICT LIABILITY LAW SUCCINCTLY EXPLAINED)/DOG-BITE (DOG-OWNER’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, LAW EXPLAINED)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN DOG-BITE CASE.

The Second Department determined defendants motion for summary judgment in a dog bite case was properly granted. The court explained the relevant law:

Aside from a limited exception for straying farm animals …, which has no application here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . …

To recover in strict liability 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 … . “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 showing that they were not aware, and should not have been aware, of any vicious propensity … . The defendants' submissions * * * established that, prior to the encounter with the plaintiff and her dog, there had never been any reported incident of aggression or viciousness … . Cosgrove v Trump Natl. Golf Club, 2015 NY Slip Op 09246, 2nd Dept 12-16-15

ANIMAL LAW (DOG BITE PROOF REQUIREMENTS EXPLAINED)/DOG BITE (PROOF REQUIREMENTS)

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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Landlord With Notice of a Tenant’s Dog’s Vicious Propensities May Be Liable to the Injured Plaintiff

In finding that there were questions of fact precluding summary judgment in a dog-bite case, the Third Department noted that a landlord with notice of a dog’s vicious propensities can be liable to the injured plaintiff:

“A landlord may be liable for the attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined” … . Defendant was empowered to require the [tenants] to remove the animal and, indeed, its site manager testified that he took steps to do so once he learned of the dog’s existence in September 2012. Rodgers v Horizons At Monticello, LLP, 2015 NY Slip Op 06189, 3rd Dept 7-16-15

 

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Escaped Calf Furnished the Condition or Occasion for Plaintiff’s Decedent’s Presence in the Road When She Was Struck, But Was Not the Proximate Cause of Plaintiff’s Decedent’s Being in the Road

The Fourth Department, over a dissent, determined that defendant’s motion for summary judgment should have been granted. A calf escaped from defendant farm. Plaintiff’s decedent stopped her car and got out to aid the calf.  Both plaintiff’s decedent and the calf were struck by a car when they were in the road, although there was no evidence decedent stopped her car because the calf blocked the road. The Fourth Department held that the escape of the calf did not “cause” the decedent to be in the road. Rather the escape of the calf furnished the condition or occasion for decedent to be in the road:

Although “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept” …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … . Here, in support of its motion, Drumm Farm established that any negligence on its part in allowing the calf to escape merely “created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand” there … . “In short, the [alleged] negligence of [Drumm Farm] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated” … . Importantly, plaintiff does not contend, and did not submit any evidence that would establish, that the calf’s presence in the road blocked decedent’s ability to travel in the southbound lane or otherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matter of law that its “alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident” … , and plaintiff failed to raise a triable issue of fact in opposition … . Hain v Jamison, 2015 NY Slip Op 06074, 4th Dept 7-10-15

 

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Proof of the Dog’s Emaciated Condition Supported Defendant’s Conviction of the Violation of Agriculture and Markets Law 353

The Court of Appeals determined the proof of the emaciated condition of defendant’s dog supported the defendant’s conviction for a violation of Agriculture and Markets Law 353 which prohibits depriving an animal of necessary sustenance. On appeal the defendant argued the trial court erred in refusing to instruct the jury that a conviction required proof of a mens rea, i.e., that defendant knowingly deprived or neglected the dog. The Court of Appeals did not address the defendant’s argument, finding that the proof of the dog’s condition alone supported the conviction.  People v Basile, 2015 NY Slip Op 05623, CtApp 7-1-15

 

Question of Fact Re: Whether Dog Had Exhibited Vicious Propensities Prior to Plaintiff’s Injury Precluded Summary Judgment

The Second Department determined questions of fact about whether the dog exhibited vicious propensities prior to plaintiff’s injury precluded summary judgment in a dog bite case.  The court explained the relevant law, noting that no negligence cause of action for a dog bite exists in New York:

Aside from the limited exception …, regarding a farm animal that strays from the place where it is kept …, which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . Thus, “[t]o 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 . . . knew or should have known of such propensities” … . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others … . “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” … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability. In support of her motion, the plaintiff submitted her deposition testimony that, although the dog had barked “aggressively” at her prior to the incident, she had never observed the dog attack any person or another pet prior to this incident. The plaintiff also submitted the deposition testimony of a neighbor who, on two separate occasions prior to the instant attack, observed the dog growl, bark, bare its teeth, and jump at a person. Significantly, the neighbor testified that the defendant was present during both of the prior incidents. However, in support of her motion, the plaintiff submitted the deposition testimony of the defendant, who maintained that, prior to the attack on the plaintiff, the dog had never attacked any person or any other dog, and had never acted threateningly toward anyone. The defendant further testified that, although the dog might have barked at times, no one had ever complained to her about the dog or reported to her that they felt threatened by the dog. This evidence demonstrated the existence of triable issues of fact as to whether the dog displayed vicious propensities prior to the plaintiff’s attack, or if it did, whether the defendant was aware of such propensities … . Ostrovsky v Stern, 2015 NY Slip Op 05654, 2nd Dept 7-1-15

 

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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