In June 1998, the defendants (husband and wife) operated a day care center out of their home. The plaintiff, then approximately three years old, attended the day care center. On 30 June 1998, the plaintiff was bitten on the face by the day care center’s family dog, a pure bred labrador retriever weighing approximately 75 pounds. At an examination before trial, defendant-wife testified that the dog, who was trained by the defendants, was mainly a house dog, although the yard was fenced in and she had free rein to go where she wanted. On the day in question, there were a total of six children in the center, ranging in ages from two to four years old. At around 10:30 A.M., the children went out on the deck to play. Defendant-wife was sitting at a table inside the house approximately two feet from a sliding door to the deck, doing paperwork and going through mail and bills. Just prior to the incident, the dog walked onto the deck. The plaintiff went up to the dog, who was sitting, and “bear hugged” her around the neck, coming face-to-face with the animal. Defendant-wife testified: “I told the plaintiff to leave the dog alone. And at that, the dog moved and the plaintiff was crying.” At the time, defendant-wife was approximately 10 feet from the dog and the plaintiff. When defendant-wife took the plaintiff inside to get him a glass of juice, she noticed that there was a cut and some bleeding above and below one eye of the plaintiff. Defendant-wife testified that there had been no prior incidents with the dog concerning anyone on the premises, and that, although Daisy would bark at strangers at the door, she did not growl or jump on people. Indeed, defendant-wife asserted at the time of her deposition in February 1999 that the defendants still owned the dog and that there had not been another incident.
Subsequently, a New York Injury Lawyer said the plaintiff commenced the instant action seeking to recover damages arising from strict liability and common-law negligence. He alleged, inter alia, that the dog had vicious propensities, and that the defendants had failed to provide adequate supervision.
Plaintiff moved for summary judgment on the issue of liability and to dismiss the defendants’ affirmative defenses of assumption of the risk and comparative negligence.
The plaintiff argued, inter alia, that it could be determined as a matter of law that the defendants failed to provide adequate supervision, and that he was too young to have either assumed the risk of his injuries or to have been comparatively negligent.
On appeal, plaintiff does not pursue the argument that the dog had vicious propensities and that, therefore, the defendants may be held strictly liable for his injuries.
When a three-year-old child bear hugs a pet labrador retriever owned by his day care provider and the dog bites the child as the provider calls out to the child to leave the dog alone, can there be a recovery by the child in an action alleging negligence even though there is no evidence that the dog previously exhibited vicious propensities?
Indeed, there is no proof on the record that the dog possessed or demonstrated vicious propensities. However, contrary to the defendants’ contention, proof of vicious propensities is not required in all cases to recover for injuries arising from a dog bite, a dog attack or an animal attack. Rather, where the conduct at issue, although not vicious, results in reasonably-foreseeable injury, the courts have recognized a right to recover for common-law negligence.
In the case at bar, the plaintiff also seeks recovery for damages based on common-law negligence, other than the theory on strict liability. An NYC Personal Injury Lawyer said that pursuant to general principles governing a negligence claim, there must be a duty owed the plaintiff by the defendant and a breach of that duty. In the oft-quoted language of a landmark case, “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” Thus, liability in negligence arises when a defendant owes a plaintiff a duty of care and is negligent in taking reasonable measures to prevent injury arising from conduct that is reasonably foreseeable. By contrast, even the most elaborate and extensive measures will not avoid strict liability for injuries arising from a dog’s known vicious propensities. Here, the question is whether the action of the plaintiff, and the dog’s response, were sufficiently foreseeable to put the defendants on notice that such an encounter might be anticipated. This inquiry raises issues of fact.
The defendants, as providers of day care services, owed the plaintiff the same duty of care and supervision owed by a reasonably prudent parent under the circumstances. Further, as such, a jury might find that they are charged with the knowledge that a young child such as the plaintiff may interact with a dog in a fearless manner that befits a child’s lack of capacity to fully understand the foreseeable consequences of such conduct; that is, that such conduct may be injurious or threatening to the dog and, if so, that the dog, even a docile and well-trained one, may instinctively engage in defensive action such as biting. Here, defendant-wife’s calling out to the plaintiff to leave the dog alone just before he was bitten may be found by a jury to be evidence that she was in fact aware of the possibility of such a response by the dog.
Accordingly, a Long Island Personal Injury Lawyer said the dismissal of the defendants’ affirmative defenses of assumption of the risk and comparative negligence is warranted.
In sum, there are questions of fact whether the defendants breached the duty of care owed the plaintiff by failing to take reasonable measures to prevent the incident at issue and, if so, whether such a breach was a proximate cause of the damages alleged.
Accordingly, the court holds that the aforementioned issue cannot be summarily determined and that questions of fact warrant submission of the case to a jury; the order is modified; defendants’ affirmative defenses of comparative negligence and assumption of risk are dismissed.
If you are confronted with a similar situation as mentioned above, or have experienced an injury due to medical malpractice, a car accident or construction accident, contact Stephen Bilkis & Associates. Have a free consultation with our firm and speak to our highly trained, skilled and experienced New York Dog Attack Attorney. You may also consult with our New York Animal Attack Attorney for other animal attack concerns.