In New York, as a condition for recovery for a dog bite, plaintiff must show “vicious propensities” of the dog through proof that the pet has previously attacked someone, or the dog’s tendency to growl, snap, or bare its teeth. Further, the manner in which a dog is restrained or the fact that the dog is kept as a guard dog may indicate that the owner is aware of the dog’s purported vicious propensities. But, if these factors do not exist, a plaintiff will not be able to recover in strict liability.
Such was the case in Vallejo v Ebert. In Vallejo, the defendant’s dog had been living with her family, which included a small child, without incident for approximately four or five years before it bit the plaintiff. Before the incident, the defendant had not seen the dog exhibit any aggressive behavior. In opposition to the defendant’s motion for summary judgment, plaintiff argued that the presence of a “Beware of Dog” sign on the defendant’s home coupled with the fact that the dog may have been confined when there was a celebration at the premises raised a triable issue of fact as to the defendant’s knowledge of the dog’s vicious propensities. The court disagreed with plaintiff and the lower court’s ruling granting summary judgment was affirmed by the Appellate Division, Second Department.
Close call but the defendant escapes liability in this case. But now that the dog has digested its one free bite, the next “snack” will be an expensive one for its owner.