A man was walking on the sidewalk next to a house fenced by chain-link. He saw that a dog was unleashed and freely roaming the property behind the chain-link fence. The man paused in front of the chain-link fence and rested his hand on the top of the chain-link fence. The dog within the fence climbed some cinderblocks. It lunged at the man’s hand. A New York Personal Injury Lawyer said the man sustained an injury on his hand caused by the dog bite. After the dog bit the man’s hand, the dog backed away.
The man sued the dog owner seeking damages to compensate for the injury he sustained consequent to the dog attack. The man claims that the dog owner knew or should have known that his dog was dangerous, that the dog had a vicious propensity and was prone to bite or attack.
In the alternative, a Westchester County Personal Injury Lawyer said the man also brought a cause of action in the same complaint alleging that the dog owner was negligent. He left cinderblocks piled on the corner of his property which the dog climbed on and was the very reason why the dog was able to reach his hand and bite it.
The dog owner gave a deposition and he stated that his dog was a 12 year old purebred husky. The dog had never bitten anyone before. It had never growled or bared its teeth when anyone approached. He also testified that the dog had never exhibited any threatening or menacing behavior.
The dog owner also filed a motion for summary judgment asking that the complaint against him be dismissed for the failure of the man to prove that his dog had any vicious propensity.
The court granted the motion for summary judgment and dismissed the complaint for damages. A Suffolk County Personal Injury Lawyer said on appeal to the Supreme Court the only question was whether or not a triable material issue of fact has been raised that renders the order of summary dismissal improper.
The Court held that there was no material issue of fact raised in the pleadings or in the motion that has to be tried by a jury. The Court held that the man simply failed to allege and give preliminary evidence that the dog owner knew or should have known that the dog had vicious propensity that proximately caused the dog bite and the dog attack.
A dog running in the yard chasing chickens is not evidence of vicious propensity. A dog chasing after bicycles, motorcycles or cars is not evidence of vicious propensity. A dog barking at strangers is not evidence of vicious propensity. These are normal territorial behaviors of a dog.
The man himself testified that the dog just lunged at him and bit his finger but after that, the dog backed away. The dog did not bark or growl at him and the dog did not attack him viciously: he simply nicked the finger. There is no evidence of vicious propensity here.
The cause of action for negligence also fails. The man’s theory that the dog owner was negligent because he placed a pile of cinderblocks on his property near the chain-link fence that allowed the dog to reach his finger cannot be given due course either. This cause of action is a common law action for negligence which cannot be the basis for a suit in damages due to a dog attack or a dog bite.
Also, if the common law action for negligence were to be given due course, the man must proffer evidence of a duty of care owed by the dog owner to the man to prevent the animal’s misbehavior. In this the man has also failed to allege and to preliminarily prove factual circumstances that show that the dog owner had a duty of care. There is no showing that the dog had in the past displayed vicious tendencies that gave the dog owner a heightened duty of care.
The order granting the motion to for summary judgment dismissing the complaint was upheld.
Were you injured consequent to a dog bite? Did you suffer damages due to a dog attack? Are you wondering if you have a cause of action for damages? Whether you have been injured do to a dog attack, car accident or construction accident, call Stephen Bilkis and Associates today. Ask to speak to any of their New York Dog Bite Lawyers. Their New York City Dog Bite Lawyers can assess the facts of your case to see if you have a viable cause of action against the owner of the dog that bit you. Their NY Dog Bite Attorneys can help you present your case and present evidence in your behalf. Go to any of the conveniently located offices of Stephen Bilkis and Associates today. Speak to a NYC Dog Bite Attorney and begin the process of getting compensated for the legal injuries you sustained.