Consideration of Liability Under Dog Bite Statute Includes Charging and Growling (NY)

Although New York is a “one bite” state – meaning to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. However, there are other actions that a dog might show that demonstrate “vicious propensities” without resorting to actual biting as shown below.

In Meka v. Pufpaff, plaintiff brought an action to recover damages for injuries allegedly sustained as a result of the vicious propensities of defendants’ dogs. Plaintiff was walking her dog, when defendants’ dogs approached them. According to plaintiff’s deposition testimony, one dog came toward her at a “full run” and began “biting” plaintiff’s dog’s neck. Plaintiff lost her balance, fell over one of the dogs, and dropped to the curb, fracturing her arm.

Both defendants and plaintiff moved for summary judgment and the lower court denied both motions. Both parties appealed the decision and the Appellate Division, Fourth Department upheld the lower court decision as to the vicarious liability portion of the complaint, but granted defendants’ motion for summary judgment as to negligence.

Defendants contended on their appeal that Supreme Court erred in denying their motion with respect to the strict liability cause of action because their dogs had not demonstrated vicious propensities prior to the subject incident. However, per the deposition testimony, the Court held that “a known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[ ] liable for damages resulting from such an act.” There was deposition testimony of a neighbor, who testified that one day, when she was walking her dog past defendants’ house, defendants’ dogs growled and “came charging” at them, thus raising an issue of fact.

Finally, the Court held that a claim for ordinary negligence does not lie against the person responsible for a dog that causes injury and thus dismissed that portion of the plaintiff’s complaint.

Thanks to Paul Vitale for his contribution to this post.

Court Puts Muzzle on Dog Bite Claim (NJ)

Plaintiff, a certified dog groomer, had been grooming defendant’s Golden Retriever for three years. When defendants first brought their dog to plaintiff to be groomed, they provided notice that the dog was “a little problematic.” As such, plaintiff would place a muzzle on defendant’s dog during each grooming session. On June 6, 2013, plaintiff prepared to groom defendant’s dog just as she had done six or seven times prior. She placed a muzzle on the dog, and began to bathe him. There was no indication that he was agitated or aggressive. Suddenly, as plaintiff began to trim the hair around the dog’s rear, he pulled the muzzle off with his paw, whipped his head around, and sank his teeth into plaintiff’s left arm, causing ten puncture wounds. Plaintiff was hospitalized for six days and was out from work for approximately six weeks.

Following the close of discovery, defendants moved for summary judgment. The court, applying the Reynolds case, held in favor of the defendants, ruling that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner unless the dog owner purposefully or negligently conceals a particular known hazard from the independent contractor.  Here, the court was satisfied that defendants provided notice to the plaintiff that the dog tended to be problematic. Additionally, the court noted that plaintiff chose to muzzle the dog each time he was groomed due to the warnings from the defendant.

Plaintiff appealed the ruling of the trial court, arguing that it erroneously held that the groomer assumed the risk of the dog bite and that the judge did not consider that defendants purposefully concealed the dog’s violent propensity from the plaintiff. Additionally, on appeal, plaintiff’s argued that there was no expert report likening dog groomers to veterinarians with regard to assumption of the risk of being bitten by a dog. Plaintiff noted that veterinarians must be licensed, while dog groomers do not need a license.

The appellate court held that the principles in Reynolds are not confined to veterinarians. Instead, the appellate court ruled that Reynolds applies to any independent contractor who agrees to care for a dog.  Further, the court cited plaintiff’s deposition testimony wherein she stated that she was in the commercial dog-grooming business, and being bitten by dogs “goes with the territory.” As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Who’s Gonna Ride Your (Domesticated) Horses (NY)

In Brinkman v Marshall Field VI, the Appellate Division, Second Department affirmed a lower court ruling granting defendant’s motion for summary judgment.  In Brinkman, plaintiff was allegedly injured while grooming a stallion in the barn at Hidden Brook Farm.  She claimed that while she was grooming, three horses, who had escaped from their paddocks, galloped unaccompanied into the barn, startling the stallion who side-stepped and pinned her against the wall.  She commenced an action based on common-law negligence against the farm.

The Court found that the farm established its prima facie entitlement to judgment as a matter of law because the stallion and escaped horses were domesticated animals and plaintiff failed to allege that any of them had vicious propensities.  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by domestic animals and an owner can only be held liable if they know or should have known of the animal’s vicious propensities.

The plaintiff tried to claim an exception set forth in Hastings v. Suave which dealt with a farm animal that strays from the place where it is kept onto a public road or other property.  In carving out that exception, the Court of Appeals recognized the unique peril that arises from allowing farm animals to wander off a farm unsupervised and unconfined.  People generally don’t expect a 1500lb cow or 400lb pig or unruly goat to wander freely into traffic or onto a neighbor’s yard mangling people and property.  That exception is inapplicable here as the presence of horses in a barn is not unexpected.

Without the exception, plaintiff was unable to prevail on her claim.  While the rule about domestic animals has been extended past dogs, it is extremely important that vicious propensity be pleaded and established, or the defendants may be able to obtain summary judgment.  Thanks to Mehreen Hayat for her contribution to this post.  Please contact Brian Gibbons by email or on Twitter (bgibbons@35) with any questions.

Plaintiff Gets Second Bite at Defendant’s Dog (NY)

In Lipinsky v Yarusso (2018 NY Slip Op 05925), two co-workers and friends ended up as adversaries when the defendant’s dog bit the plaintiff’s left thumb.

After the dog bit the plaintiff, he filed a lawsuit in Suffolk County Supreme Court.  The defendant then filed a motion for summary judgment, asking the Court to dismiss the lawsuit because his dog did not demonstrate vicious propensities, and even if the dog did, the plaintiff was not aware of such propensities.  The plaintiff’s opposition to the motion included an affidavit from the plaintiff’s neighbor stating that on two occasions prior to the incident, the defendant warned the neighbor to be careful near the dog because he bites.  Nonetheless, the Court granted the motion dismissing the lawsuit.

The plaintiff appealed the dismissal and the Appellate Division reversed the trial court’s findings.  The decision addressed the law and the facts, and reinstated the action because there were questions of fact regarding the defendant’s dog’s vicious propensities.

The appellate decision discussed the legal standard pertaining to liability for dog bites, holding that “to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.   The Court also held that “evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.”

Applying this law to the facts as stated in the affidavit from the plaintiff’s neighbor, the Appellate Division held that the Supreme Court erred in dismissing the lawsuit.  Specifically, the decision held that the affidavit from the plaintiff’s neighbor was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities.

Thanks to George Parpas for his contribution to this article.

No Recovery for Bitten Broker (NJ)

In Ward v. Ochoa, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden & Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal.

Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property.

Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident.

When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery.

It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties.

The appellate court on review determined that plaintiff was injured as a result of her employment with P&R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Municipal Animal Shelter “Sheltered” From Liability In Dog Bite Case (NY)

New York State is relatively lenient when it comes to imposing liability on dog owners in dog bite cases: an animal owner will be held liable for a dog bite when he knows or should have known about his animal’s vicious propensities and those propensities cause the plaintiff’s injuries.  A recent decision from New York’s Second Department shows that New York’s relatively lenient standard is even more lenient when the defendant is a government-run animal shelter.

In Abrahams v. Mt. Vernon, the plaintiff was the mother of an infant who was attacked by a dog when visiting the back room of an animal shelter.  In its motion for summary judgment, the City relied on its municipal status to argue that it could not be held liable.  The court agreed, and dismissed the complaint against the City.  In doing so, the court recognized that a municipality can only be held liable in this context if it had a special relationship with the plaintiff, which could only be proven if: (1) the municipality violated a statutory duty enacted to protect a specific class of persons; (2) it voluntarily assumed a duty on which the plaintiff justifiably relied to its detriment; or (3) it assumed control in the face of a known, blatant, and dangerous safety violation.

Because the City merely provided a governmental function designed to benefit the public at large, there was no special relationship and the City could not be held liable.  In passing, the court noted that the City would not have been liable under the standard applicable to private persons either, as there was no evidence of vicious propensity for this particular dog.

Abrahams is a reminder that government often enjoys greater legal protection than those it governs.  And both governments and private citizens who own dogs have greater protections from potential liability in New York than elsewhere in the United States.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.


Shelter’s Vague Warning about Dog’s Viciousness Deemed Sufficient Warning (NY)

It isn’t every day that the plaintiff in a dog bite case sues after being bitten by her own dog, but that is exactly what happened in Tiger v. North Shore Aminal LeagueIn Tighe, the plaintiff adopted a dog from her local shelter.  At the time, the shelter told her the dog could get a bit possessive about food.  But she soon discovered that food jealousy was the least of this dog’s problems.

When she took the dog home, she learned that it also had a habit of jumping into her fence when people passed by her yard and growled whenever it was feeding time.  She also learned a more painful lesson when dog bit her hand, prompting a hospital visit.  But it was only when the dog bit her in the face a few months later that the plaintiff sued the animal shelter.  As it turned out, the shelter never told the plaintiff that the dog had previously bitten someone in the face.

In the trial court, the shelter moved for summary judgment.  Although the lower court granted the shelter’s motion to dismiss for intentional infliction of emotional distress, it denied the shelter’s motion to dismiss the negligence and breach of warranty causes of action.

On appeal, the Second Department reversed.  Although the shelter failed to disclose the fact the dog previously bit someone in the face, the court held that the failure to specifically warn the plaintiff about face biting was not the proximate cause of the plaintiff’s action.  The court reasoned that under New York law, if the owner of a domestic animal delivers that animal to another, and warns that person of the animal’s vicious characteristics, the owner is not liable.

The lesson to be gleaned from Tighe is that warnings about an animal’s viciousness need not provide a laundry list of every one of the animal’s shortcomings.  It is sufficient to tell the other person the animal is really a beast. Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.




2 Dogs + 2 Victims = 1 Occurrence (NY)

A federal district court recently ruled on an issue of first impression in the Second Circuit: whether a multi-dog, multi-victim attack constitutes one or more occurrences in Verlus v. Liberty Mut. Ins. Co. On a Spring day in 2011, plaintiffs Jean and Joanne Verlus were strolling along the street in the vicinity of the insureds’ home in White Plains, New York. While engrossed in conversation, the pair were suddenly face-to-face with two American Pit Bull Terriers appropriately named Doom and Diva. The dogs, owned by Liberty Mutual’s insured, sprung to attack the plaintiffs who attempted to escape the attack by running in separate directions. Diva first pounced on Joanne while Doom pursued Jean. Luckily for Joanne, she escaped Diva’s grasp, who then returned to assist Doom in attacking Jean. All the while, the insured purportedly witnessed the carnage yet took no steps to stop it.

The insured commenced a declaratory judgment action against Liberty Mutual arguing that the attack constituted three distinct occurrences under its homeowner’s policy: (1) Doom’s attack of Jean; (2) Diva’s simultaneous attack of Joanne; and (3) Diva’s subsequent attack on Jean. By contrast, Liberty Mutual argued that this was one continuous act, and as such should be considered a single occurrence under the homeowner’s policy.

The district court looked to the policy’s unambiguous language finding that the attack by the two dogs constituted “continuous or repeated exposure to substantially the same general harmful conditions” and was therefore one occurrence. The plaintiffs were walking within arms-length and were exposed to “the same general conditions – a simultaneous attack by two dogs…” Moreover, the court found it persuasive that the attack took place at the same location and at a substantially similar time.

Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information.

That One About the Dog and the Mail Carrier…(NY)

In Jackson v. Georgalos, plaintiff, a United States Postal employee, was injured as she attempted to deliver mail to the defendants’ residence. Plaintiff claimed that as she approached the house, defendants’ dog, who was barking and jumping up against the storm door, caused the door to fly open, and ran out. As the plaintiff attempted to flee from the dog, she twisted her ankle and fell on defendants’ steps.

In New York, to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities. These propensities can be evidenced by a prior attack, the dog’s status as a guard dog, a tendency to snarl, growl, show teeth, or a tendency to act in a way that puts others at risk of harm.

Here, defendants moved for summary judgment, establishing their prima facie entitlement to same through their deposition testimony. Specifically, the defendants testified that their dog had lived with them and their small children for five years, that their dog was friendly and had never growled at, chased, bitten, or attacked anyone, and that their dog had never acted aggressively toward a mail carrier. In opposition, plaintiff was unable to raise a triable issue of fact as to whether the defendants were aware of the dog’s purported propensity to run out of the house and chase after people. Accordingly, the plaintiff’s complaint was dismissed.

Special thanks to Lauren Tarangelo for her contributions to this post. For more information, please e-mail Bob Cosgrove .