When “man bites dog,” there will probably be a news story. When “dog bites man,” there will probably be a lawsuit. Under New York law, that also means strict liability if the dog owner knows or should have known about the dog’s vicious propensities.
When ascertaining an owner’s knowledge, courts have traditionally looked to the animal’s history. Has the dog bitten anyone before? Does the dog have a history of flashing its teeth and growling at people? Maybe an overly-friendly lag has a history of jumping people?
In a recent decision, however, the New York County Supreme Court departed from the practice of looking to the past. In Reif v. Leff, a dog owner was sued after his dog attacked a plaintiff who was allegedly trying to break up a fight between her dog and the defendant’s dog. After submitting evidence that he had no knowledge of any vicious propensities and that the dog, even when unleashed, had always been cordial or uninterested in people or other dogs, the defendant moved summary judgment.
Despite any evidence of past behavior indicating vicious propensities, the court denied the defendant’s motion for summary judgment. In doing so, the court reasoned that there was a question of fact as to how the incident at issue began. In the court’s words, “[a]n attack that is severe and unprovoked is an indicia of vicious propensities.”
By citing current behavior as an indicator of vicious propensities, the court departed from New York’s traditional practice of looking to the past when analyzing whether to impose strict liability on a dog owner. Surely, most dog bite cases evince at least an iota of “vicious propensity” — otherwise, there would have been no bite. Until now, the standard has been prior notice of a vicious propensity. We strongly suspect an appeal will be forthcoming. And if affirmed, this decision will change the standard for summary judgment in dog bite cases. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions..
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.
Thank to Johan Obregon for his contribution for this post. If you have any questions, please email Paul at
In Pennsylvania, 3 P.S. § 459-502(b)(1) of “Dog Law” provides the following for bite victims: “Any cost to the victim for medical treatment resulting from an attacking or biting dog must be paid fully by the owner or keepers of the dog. The Commonwealth shall not be liable for medical treatment costs to the victim.” The question becomes whether the statute imposes strict liability on dog owners for medical expenses resulting from dog bites.
In Warner v. Campbell, the plaintiff filed suit in the Court of Common Pleas of Lycoming County after he was bitten by the defendants’ dog. The defendants filed preliminary objections to count III of the amended complaint which sought a claim for medical expenses resulting from the dog bite based on the Pennsylvania statute—that according to the plaintiff—imposed strict liability for those expenses.
The court relied on Rosenberry v. Evans and statutory interpretation in making its decision. The court reasoned that while the statute appears to provide a claim for strict liability on its face, the court in Rosenberry found that proof of the owner’s negligence is required to succeed in a cause of action against dog owners for injuries sustained by their dogs. In other words, Pennsylvania does not impose absolute or strict liability upon dog owners for dog bites.
The court also reasoned that the statute is worded to make clear that while the Commonwealth will pay detention costs when the dog’s owner is unknown, the Commonwealth is not responsible for medical expenses to the victim. Additionally, sections 531 and 532 of the statute provide a private causes of action to owners of sheep for damages resulting from dogs “chasing or worrying sheep.” The court held that since the legislature did not provide a similar cause of action for victims of dog bites, the legislature did not intend to do so. As a result, the court sustained the defendants’ preliminary objections and dismissed count III of the amended complaint based on strict liability.
Thanks to Eric Clendening for his contribution for this post. If you have any questions, please email Paul at
Plaintiffs bitten by vicious dogs often sustain serious injuries. Therefore, it is no surprise that they can also look forward to a significant payday. But that does not mean that courts won’t put a leash on plaintiffs’ ability to obtain judgments against those with a remote connection to the dog in question.
In Mercado v. Ovalle, the plaintiff was attacked by two pit bulls that were kept on a lot next to a grocery store. According to the plaintiff, the defendants, the grocery store and its owner, helped care for the pit bulls, occasionally gave them food, once took them for a walk, and had access to the lot where they were kept.
The defendants moved for summary judgment, which the Bronx County Supreme Court granted. The First Department affirmed the decision, holding that a defendant could not be held liable for the plaintiff’s injuries in the absence of any evidence that the defendant owned or harbored the dogs, or controlled the lot where they were kept.
However, the court also noted that there was no evidence that the pit bulls were ever in the store or that the defendants entered the adjacent lot, suggesting that the outcome may have been different had the defendants had more significant contacts with the pit bulls. The lesson from Mercado may be that it is fine to enjoy animals, just don’t assume any responsibility for them.
Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at