|
|
 |
Dangerous Dogs
- Psomas v. Village of Massapequa Park, et al. (Supreme Court,
Nassau County, Brandveen, J. 9/4/08)
A jogger in a park located in the village of Massapequa Park
and the Town of Oyster Bay was bitten on the abdomen by a border collie
named Zeke, who was part of the Geese Peace Program, designed to scare
off Canada Geese from public parks. Zeke was on a
retractable leash, held by a trainee in the Geese Peace Program, when
the incident occurred, and the plaintiff used the trainee’s
inexperience to argue that it was reasonably forseeable that an incident
could occur. The court granted the defendants’
motion for summary judgment holding that plaintiff’s only possible
cause of action would be for strict liability, which would require a
showing that defendants knew or should have known that Zeke had vicious
propensities. Justice Brandveen rejected the
plaintiff’s attempt to recover under common law negligence.
He noted that the Court of Appeals had clarified that liability for
injuries caused by domestic animals may only proceed under a theory of
strict liability, and he concluded as a matter of law that plaintiff
raised no issue as to any prior vicious propensities of Zeke.
- August 2008 - Liability for injuries caused by
animals
For further information in this area, the evolving case law
concerning liability for injuries caused by animals was the subject of a
recent New York Law Journal article. (See 7/22/08 NYLJ, p.3,
“The Evolution of the Law in Dog Bite Cases” by Robert S.
Kelner and Gail S. Kelner.)
-
Dykeman v Hecht, 2008 WL 2522370 (2d Dept 6/24/08)
The child and parent of a 3 year old child sued for injuries
suffered by the child when she was bitten on the face by a dog owned by
family friends during a visit to those friends’
house. No one other than the dog and the child
were present at the time that the bite occurred. The
Appellate Division affirmed the Supreme Court’s denial of the
defendant’s motion for summary judgment seeking dismissal of the
Complaint asserting a cause of action for strict liability, finding a
question of fact of whether the dog’s owner knew or should have
known of its vicious propensities. The majority found
testimony that the dog, although it never displayed aggression towards
anyone and was never restrained while in the house with visitors, had
barked, growled, snarled and bared its teeth at the family upon their
arrival at the defendant’s house, was sufficient to create an
genuine issue of fact.
The vociferous dissent argued that the case was indistinguishable from
Brooks v. Parshall, 25 A.D.3d 853, 806 N.Y.S.2d 796 (3d Dept 2006), in
which the court had held that growling and baring its teeth, without
more was not sufficient to find vicious propensities. The
dissenter argued that the majority had departed from “clear and
consistent precedent” that something more than a dog’s
temporary excited behavior, “consisting of barking, growling, and
baring of teeth” upon a guest’s arrival was required to
raise a question of fact as to whether it was known to have vicious
propensities.
- Rigley v. Utter, 2008 WL 2609327 (3d Dept. 7/3/08)
Plaintiff brought an action against the owner of a dog which,
when not on a leash, had crossed the road from the defendant’s
house towards the defendant’s barn, just in front of plaintiff who
was driving a motorcycle. The driver of the motorcycle opted to
lay down the bike instead of hitting the dog or running off the road
into a ditch, and he suffered injuries as a result of his body’s
collision with the roadway. Following a non-jury trial, the court
denied the dog owner’s motion for summary judgment and entered
judgment in favor of the motorcyclist. The appellate division
reversed that judgment because it found that the trial court had relied
upon testimony that the dog had sometimes chased cars which pulled into
the driveway and ran up to cars when called. Because
interfering with traffic can be found to be a vicious propensity (an
element to a finding of strict liability), the trial court had found for
the plaintiff as a matter of law. The appellate court found
that because the dog was simply crossing the road when the accident
occurred, whether the dog had previously chased cars was irrelevant, and
it ordered a judgment be entered in favor of the dog owner.
- Petrone v. Fernandez, 2008 WL 2669298 (2d Dept 7/8/08)
This case was brought by a mail carrier who was claimed to have
suffered injuries when she jumped into her mail truck after being chased
by a dog which had been sitting on the lawn of a house owned by the
defendant. The complaint stated causes of action for strict
liability (which would require proof of known vicious propensities) as
well as negligence, based upon failure to have the dog on a leash (in
violation of the locality’s leash law) which allegedly resulted in
the injuries to the plaintiff. The plaintiff withdrew the first
cause of action and the trial court dismissed the negligence cause of
action on a motion for summary judgment. The plaintiff
appealed.
The appellate division, Second Department reviewed the history of New
York’s law on liability for injuries caused by animals, including
the Court of Appeals’ decision in Bard v. Jahnke, 6 NY3d 592, 848
N.E.2d 463, 815 N.Y.S.2d 16 (2006), in which the court held, over a
vociferous dissent, that known vicious propensities were required in
order to hold an animal’s owner liable for injuries it caused and
that the only cognizable cause of action was strict
liability. The appellate division concluded that Bard
did not address a situation involving a violation of the local leash law
and therefore was not determinative in this case. The court
also specifically recognized that its holding is not in line with cases
in other judicial departments, which have rejected any causes of action
other than strict liability since Bard, including those involving
violations of local leash laws. Although it recognized that a
violation of a local leash law alone is not sufficient to find liability
against a dog’s owner, it did hold that if there is evidence of
aggressive behavior coupled with a leash law violation, the dog’s
owner may potentially be liable, even absent prior known vicious
propensities.
- Alia v. Fiorina, 39 A.D.3d 1068, 833 N.Y.S.2d 761, 2007 N.Y.
Slip Op. 03240 (N.Y.A.D. 3 Dept., 2007)A dog injured a bicyclist after
it ran into the road and hit the bicycle, causing the plaintiff to fall,
incurring injuries. The Supreme Court, Greene County
granted summary judgment for the defendant owners. The Supreme
Court, Appellate Division affirmed, holding that the defendants had no
notice that their dog had any propensity to interfere with
traffic. When harm is caused by a domestic animal, its
owner’s liability is determined solely by a finding that a dog
owner knew or should have known of the animal’s vicious
propensities under a theory of strict liability. 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. A dog’s habit of chasing vehicles or otherwise
interfering with traffic could be a vicious propensity. Since
there was not proof, there was no basis for imposing strict
liability. In addition, the alleged violation of a local leash law
was irrelevant as this is evidence of negligence, and negligence is no
longer a basis for imposing liability nor would such a violation give
rise to an inference that defendants had knowledge of their dog’s
propensity to interfere with traffic. Although defendants knew
their dog occasionally ran into the road and stood there, they knew of
no incidents where it chased vehicles or interfered with traffic.
The plaintiff’s evidence that the dog occasionally was allowed to
run loose and sometimes would go into the road was insufficient to raise
a question of fact on the issue.
- Bernstein v. Penny Whistle Toys, Inc., 40 A.D.3d 224, 834
N.Y.S.2d 173, 2007 N.Y. Slip Op. 03768 (N.Y.A.D. 1 Dept., 2007)
Plaintiffs sued the defendant toy store owner and others to
recover for injuries to the child from a dog bite which the child
incurred from the owner’s dog that was at their store. The
Supreme Court, Appellate Division affirmed the Supreme Court, New York
County, decision granting the defendants motion for summary
judgment. When harm is caused by a domestic animal, its
owner’s liability is determined solely by a finding that a dog
owner knew or should have known of the animal’s vicious
propensities under a theory of strict liability. The dog had never
previously bitten or snapped at anyone or indicated vicious behavior nor
where there ever any complaints received about the dog’s presence
at the store. The plaintiff’s theory based in premises
liability was impermissible. The dissent felt that the defendant
owed an additional duty to the plaintiff since the dog owners having the
dog at their business location where children are expected to be
present, should be required to maintain their premises in a reasonably
safe condition in view of the circumstances.
- Cuozzo v. Loccisano, 15 Misc.3d 16, 832 N.Y.S.2d 744, 2007
Slip Op. 27059 (N.Y. Supp. App. Term, 2007)
After a hearing pursuant to Agriculture and Markets Law
(“AML”) §121 the appellant’s two pit bulls were
deemed dangerous and appellant was direct to have both euthanized by the
District Court of Suffolk Co.. Upon appeal the order was modified
by deleting the euthanization and providing that (i) the dogs be
neutered and microchipped, and (ii) that the dogs be muzzled per AML
§121(2)(d) and restrained by a person not less than 21 years of
age,(iii) when not restrained the dogs had to be confined in the
owner’s house or in a locked pen of specified type and size and
(iv) the defendant had to maintain a liability insurance policy of at
least $75,000 for personal injury or death resulting from attack.
In this proceeding under AML §121, petitioner alleged that the two
pit bulls attached another dog in a third incident. The court
declared the dogs dangerous and ordered them euthanized. The
Supreme Court, Appellate Term affirmed the decision stating that
although petitioner failed to establish by clear and convincing evidence
circumstances sufficient to support an order of destruction, the
evidence was sufficient to establish that the dogs were “dangerous
dogs” due to the serious nature of the attack, serious injuries to
the dog, and repeated aggression towards other dogs in the
neighborhood.
- Earl v. Piowaty, 839 N.Y.S.2d 861, 2007 N.Y. Slip Op. 06266
(3 Dept. 2007)
Plaintiffs’ son was bitten in the face by a dog that belonged to
the Defendant when he was speaking to the dog. Defendant asserted
that the Plaintiffs’ son startled the sleeping dog by shouting in
the dog’s face after winning a video game. The case was also
brought against the shelter from which Defendant had purchased the
dog. The Supreme Court denied Plaintiffs’ motion for partial
summary judgment as there was no actual or constructive notice of the
dog’s vicious propensities.
Upon appeal, the Appellate Division affirmed the decision as evidence of
normal canine behavior is insufficient and proof of rambunctious
behavior will show awareness of a vicious propensity only if it is the
very behavior that resulted in plaintiff’s injury. Although
the Defendant had only acquired the dog two weeks prior and it had
nipped someone attempting to pet it, the person nipped explained that
that the dog had just recovered a Frisbee and was trying to prevent the
person from taking it so lightly nipped the person, this did not show a
vicious propensity.
- Galgano v. Town of North Hempstead, --- N.Y.S.2d ---, 2007
WL 1704612 (N.Y.A.D. 2 Dept.), 2007 N.Y. Slip Op. 05223 (N.Y.A.D. 2
Dept., 2007)
In an action to recover damages for personal injuries from a dog bite,
the plaintiffs appealed an order of the Supreme Court, Nassau County
granting defendants’ motion to dismiss. The court affirmed
the decision holding that to recover in strict liability in tort for a
dog bite or attack, the plaintiff must establish that (i) the dog had
vicious propensities and (ii) that the owner knew or should have known
of the dog’s propensities. Evidence tending to demonstrate
this might include 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 that they neither knew nor should have known of any prior
vicious propensity by the dog, and while under their dominion, the dog
acted in a manner inconsistent with a dog possessing vicious
propensities. The plaintiffs failed to submit evidence to raise an
issue of fact. The fact that the dog was brought to an animal
shelter since it could not get along with another dog in the
owner’s household did not indicate that the dog had vicious
propensities.
- Hunger v. Galland, 37 A.D.3d 1048, 829 N.Y.S.2d 320, 2007
N.Y. Slip Op. 00754 (N.Y.A.D. 4 Dept., 2007)
The plaintiff sought to amend a complaint to add punitive
damages due to the failure of the utility to inform its meter reader of
the presence of dangerous dogs at a residence. The meter reader
was attacked by the dogs. The Supreme Court, Appellate Division
held that utility’s conduct did not support a claim for punitive
damages since the failure to inform the plaintiff does not constitute
willful or wanton negligence or recklessness. Plaintiff’s
contention that the court erred in granting the utility’s motion
for a protective order was not addressed since the documents at issue
were only discoverable in the event that the plaintiff was allowed to
seek punitive damages.
- Marek v. Burmester, 37 A.D.3d 668, 830 N.Y.S.2d 340, 2007
N.Y. Slip Op. 01527 (N.Y.A.D. 2 Dept., 2007)
A bicyclist was injured in an accident caused by two dogs that
ran out into the road with one dog causing the bicyclist to fall off the
bicycle and the other dog grabbed the plaintiff’s leg.he plaintiff
sued both the owner and the owner’s stepson who was caring for the
dogs in the owner’s absence.The Supreme Court, County granted the
defendant’s motion for summary judgment and the plaintiff
appealed. The Supreme Court, Appellate Division, reversed the
decision since there were issues of fact regarding whether the
defendants had constructive notice of the dogs’ proclivity to
chase bicyclists on the road and whether these actions put others at
risk of harm. When harm is caused by a domestic animal, its
owner’s liability is determined solely by a finding that a dog
owner knew or should have known of the animal’s vicious
propensities under a theory of strict liability. In addition, when
an animal behaves in a way not necessarily dangerous or ferocious, but
reflects a proclivity to act in a way that puts others at risk of harm,
the animal can be considered to have vicious propensities when such
proclivity results in the injury giving rise to the lawsuit. Here
the plaintiff provided evidence that on at least 10 occasions before the
accident, the dogs chased him when he was bicycling, indicating that the
defendant’s may have notice of the dogs proclivity to chase
bicyclists and that this could put others at risk of harm.
-
Motta v. Menendez, 847 N.Y.S.2d 612, 2007 N.Y. Slip
Op.09778 (N.Y.A.D. 2 Dept., 2007)
Appellant’s two pit bull terriers entered the
petitioner’s property and one of the terriers (Duke) attacked and
injured the petitioner’s pet dog. The other pit bull did not
exhibit any aggressive behavior. In a November 17, 2003 order in
which both of appellant’s dogs were declared dangerous, appellant
was directed to confine the dogs indoors or in a secure outdoor
pen. The District Court determined that both dogs were dangerous
and ordered the destruction of Duke and the permanent secure confinement
of the other dog. The Appellate Term affirmed the order.
On appeal, the appellant argued that the record did not support
Duke’s destruction nor did the Agriculture and Markets Law in
effect at the time provide that a dog-on-dog attack was conduct subject
to the penalty of destruction. The Appellate Division agreed
finding that (i) there was no evidence that Duke attacked or threatened
to attack any person and (ii) the Statute at the time did not provide
that a dog-on-dog attack was conduct subject to the penalty of
destruction. The appellant was ordered to provide permanent,
secure confinement of Duke.
- Rose v. Heaton, 39 A.D.3d 937, 833 N.Y.S.2d 291, 2007 N.Y.
Slip Op. 02850 (N.Y.A.D. 3 Dept., 2007)
Plaintiff, when 12 years old, cut through the neighbor’s
yard over a fence when one of the three dogs in the fenced area bit the
child causing severe injury to his ear. The Supreme Court
partially granted the defendant’s motion for summary judgment and
the parties cross appealed. The Supreme Court, Appellate Division
held that the defendant lacked knowledge of vicious propensities of the
dog so was not liable for the child’s injuries and that violation
of a municipal ordinance did not provide an independent basis for the
child’s negligence action. Vicious propensities included the
propensity to do any act that might endanger the safety of the persons
and property of others in a given situation. The dog had never
injured another person or animal, no one had ever complained about the
dog’s behavior, and the child had been around the dog on numerous
occasions without incident. Evidence that the dogs rushed towards
the fence growling when the plaintiff’s father approached it to
speak with defendant and then “backed off” upon command was
not sufficient evidence to establish vicious propensities nor was the
fact that the dog had at least once chased another person and the owner
called the dog to stop. In that instance the child indicated she
was playing a chase game with the dogs and having fun.
The Court also noted that cases involving domestic animal injuries may
only proceed under strict liability based on the owner’s knowledge
of the animal’s vicious propensities and not on theories of common
law negligence. Therefore, the lower court was incorrect in
allowing the action to proceed based on a violation of a municipal
ordinance.
- Ruffin v. Dykes, 37 A.D.3d 1191, 830 N.Y.S.2d 426, 2007 N.Y.
Slip Op.00940 (N.Y.A.D. 4 Dept., 2007)
Plaintiff brought this action seeking damages for her
child’s injuries caused when he was attacked in plaintiff’s
yard by a dog owned by the defendant landlord. The Supreme Court,
Onondaga County denied the defendant’s motion to dismiss and the
landlord appealed. The Supreme Court, Appellate Division held that
since the incident did not occur on defendant’s property, the
defendant owed no duty of care to plaintiff’s son and dismissed
the complaint against the defendant.|
-
Seybolt v. Wheeler, 839 N.Y.S.2d 830, 2007 N.Y. Slip Op.
05820 (3 Dept. 2007)
Plaintiffs’ son was attempted by the Defendants’
dog when he and their son tried to throw a young child into a
pool. Plaintiffs sued the Defendants and the owners of
Defendants’ home and moved for partial summary judgment on the
issue of liability. The landlords cross-moved for summary judgment
which was granted by the Supreme Court based on landlords’ lack of
knowledge of the dog’s vicious propensities. The Supreme
Court denied the Plaintiffs motion, finding there were questions of
fact. Plaintiffs and Defendants cross-appeal from denial of their
motions.
The Appellate Division affirmed finding that veterinarian records
stating that the dog was aggressive and required a muzzle, that the
Defendant sought behavioral consultation after the dog showed aggression
to a neighbor, and an affidavit from the neighbor showed that there were
triable issues of fact regarding the dog’s vicious propensities
and Defendants’ notice.
- University Towers Associates v. Gibson, J. Eisner in Kings
County Civ. Ct.
Mere Possession of Pitbull Does not Create A Nuisance - No
Allegations of Objectionable Conduct
Date: Fri, 8 Feb 2008 19:50:47 +0000
See, NYLJ 2/6/08, p. 8, col. 5. This was a summary of the case - the
full decision was in the 12/6/07 NYLJ, p. 28, col. 1.
University Towers Associates v. Gibson, J. Eisner in Kings County Civ.
Ct.
Owner commenced a holdover proceeding against a rent-stabilized tenant
alleging that the tenant's acquisition of a pitbull constituted a
nuisance. The Plaintiff landlord alleged that the pitbull is a "known
dangerous animal" whose "presence at the premises creates a threat
to the life, health, and safety of the other residents." The court
noted that there had been no complaints against the dog and referred to
NY's Dangerous Dog Law contained in Ag and Mkts § 121. The
court noted that "the removal, destruction or confinement of dangerous
dogs requires some threatening action as a precondition." Accordingly,
the court found for the tenant based on no finding of a nuisance. The
court did note that NYC did not have any ban on pitbulls although other
jurisdictions do. [btw, such a ban if enacted by NYC would be contrary
to current NYS law.
 |
|
