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New York Appellate Court Decides Liability in Dog Bite Case, Finds for Defendant


In June 2005, plaintiffs and defendants were temporarily residing at a campground in Accord, Ulster County. A New York Injury Lawyer said the defendants had a mixed-breed dog. Defendants and plaintiffs had known one another for years, and plaintiff was well acquainted with the dog. Plaintiff testified that she had patted the dog, played with her, and kissed her on numerous prior occasions without incident, and had once even taken her to the veterinarian. On the day of plaintiff’s injury, she attended a party at defendants’ campground residence to celebrate one of the defendants’ birthday. During the party, the dog was tied by a chain on defendants’ front porch, where plaintiff patted her once or twice in the course of the evening. Plaintiff left defendants’ residence briefly. Upon her return, she reached out to pat the dog as she climbed the porch steps. The dog lunged and bit plaintiff in the face (dog bite).

Plaintiff and her husband, derivatively, commenced the instant action in May 2007.

Defendants moved for summary judgment dismissing the complaint, contending that they neither knew nor should have known of the dog’s vicious propensities.

The Supreme Court granted defendants’ motion. Thus, plaintiffs now appeal.

Under the rules, a Nassau County Personal Injury Lawyer said the plaintiff may not recover for injuries sustained in a dog attack or animal attack unless he or she establishes that the dog had vicious propensities and that its owner knew or should have known of such propensities. The owner’s knowledge may be established by proving that the owner had notice of either a prior bite or other conduct that would give rise to an inference of vicious propensities. Evidence that the dog had been known to growl or snap or bare its teeth might be enough to raise a question of fact depending on the circumstances. Once knowledge of a dog’s vicious propensities has been established, the owner faces strict liability.

Defendants claim that they had owned the dog since she was five weeks old, had never previously bitten anyone and that they had never seen her behave aggressively nor received complaints from anyone about her behavior. In addition, they submitted plaintiffs’ testimony that, in numerous previous interactions with the dog, they had not known her to bite or threaten anyone and had never expressed concern about her to defendants. This evidence was sufficient to shift the burden to plaintiffs to establish the existence of triable issues of fact.

Plaintiffs’ evidence was insufficient to meet their burden, particularly in light of their own long-standing familiarity with the dog.

Plaintiffs submitted the testimony of defendants’ former neighbor that the dog barked, jumped, and ran onto the neighbor’s campsite when she and her husband drove in. A Queens Personal Injury Lawyer said the campground activities director testified that on one occasion the dog frightened her by leaping off the porch, barking, and running toward her as she walked past. However, none of the witnesses had made any complaint to defendants regarding the dog’s behavior. Further, the aforesaid observations merely reveal a “typical territorial behavior” insufficient to establish vicious propensities.

Plaintiffs also submitted the testimony of plaintiff’s sister and the affidavit of the sister’s husband that, about a month before plaintiff was bitten, the dog growled at the husband. A single incident of growling does not, however, establish that a dog has vicious propensities. Further, the husband could not confirm that either of the defendants was present during this incident, and neither he nor the sister alleged that they told defendants about it.

Finally, as the campground required all dogs to be leashed, the fact that defendants kept the dog tethered does not indicate any knowledge of the alleged vicious propensities. While witness testimony contradicting an owner’s claims relative to a dog’s conduct may be sufficient to establish issues of fact as to credibility or the owner’s constructive knowledge, the proof presented here does not rise to that level.

Accordingly, summary judgment is proper. Complaint dismissed.

In owning a dog, a number of responsibilities attach including the assurance that it does not pose a risk to the safety of the public; otherwise, strict liability applies. To learn more of the rights available in these situations and what you can do in case these rights have been violated, contact Stephen Bilkis & Associates. Whether you have been injured by another’s negligence, or have been in a car accident, or construction accident, we will provide you with sound guidance and a free consultation.

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