A 72 year old lady lived in an apartment complex where there was a “no pets” policy in the lease. One of the residents violated his lease and kept a pit bull as his pet. On August 8, 1995, the 72 year old lady was walking down a pathway when she heard a dog barking. She saw a neighbor or hers as he tried to control his barking pit bull. The dog’s owner told the 72-year old lady that his dog was barking because he saw children playing and that aggravated the dog.
A New York Injury Lawyer said a few seconds later, the dog jumped up on the 72 year old lady. The dog attacked the lady and she sustained a head injurywhen the dog bit off her left cheek. The lady then sued her landlord because he was negligent in enforcing the terms of the lease that no pets were allowed in the apartment building. She also sued the dog owner. She claimed that the dog owner knew or should have known that his dog had vicious propensities. He should have known that his dog attacks people.
Both the landlord and the dog owner filed a motion for summary judgment asking that the complaint against them be dismissed. The plaintiff also moved for a summary judgment asking the court to determine liability.
During the trial, the plaintiff presented evidence of newspaper reports and magazine articles that pit bulls are dogs with vicious propensities. A Suffolk County Personal Injury Lawyer said the trial judge took judicial notice that pit bulls were a vicious breed that is known to attack and bite people.
The dog owner and the landlord filed this appeal. The only issue before the Court was whether or not there were triable material issues of fact.
The Court first noted that the judge improperly took judicial notice that pit bulls are a vicious breed. The Court held that in order for judicial notice to be properly taken, the fact must be of such generalized knowledge that is so notorious that there can be no reasonable dispute.
The Court also held that there are many other sources or authorities that show put bulls do not have a vicious nature but that they have the capacity to be trained to become vicious. The existence of these evidence show that judicial notice should not have been taken by the trial court judge.
The Court held that the viciousness of a breed cannot substitute for evidence of the viciousness of a particular dog who is a member of that breed. There must be evidence that the specific dog itself was vicious. Evidence that viciousness must be specific to the dog who had bitten the child.
The plaintiff submitted evidence that five times prior to being bitten, he saw the dog owner and one of the dog owner’s sons walking the dog while it was on a leash. She testified that the pit bull appeared extremely strong as it was always straining at his leash. He looked like he had very sharp teeth.
The Court ruled that all this is not sufficient to prove that the dog owner knew or should have known that his dog had a vicious propensity. A Staten Island Personal Injury Lawyer said it does not prove that the owner knew his dog attacks and that the dog bites people. There is also no evidence that the landlord knew that his tenant had a dog with a vicious propensity.
Although there is evidence that the dog owner had been in violation of his lease because he kept a pet in his apartment despite the clear prohibition to keep pets, this violation of the lease does not show that the landlord was negligent. It does not show that the landlord knew that the dog had vicious propensities.
Thus, taking everything into consideration, there is no triable issues of fact that tends to show that the landlord or the pet owner knew or should have known that the dog had a vicious propensity.
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