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On July 26, 2004, the little café located at 103rd Street and Broadway,

On July 26, 2004, the little café located at 103rd Street and Broadway, New York, N.Y. was business as usual. One of the two owners of the establishment was working. The other was off, but decided to drop by to visit. The owners were dating seriously and had been a couple for several years although they did not live together. The male owner of the café had adopted an Akita whom he named Max. Max was a 120 pound brown and white Akita. When Max and his owner visited the café, Max was tied up out front on the parking meter. The female owner of the café came out to pet and play with Max for about ten minutes and then she left. Even though she did not live with Max and the male owner of the café, she took an active interest in taking care of Max. She was the one who took Max to the vet for his checkups and to get a bath. She was also known to take Max out running with her.

Once she left, one of the wait staff employed by the café stepped outside to take a break and to smoke a cigarette. While he was out front, he took notice of Max tied to the parking meter. He approached the dog and offered the back of his hand for Max to sniff. Max did sniff his hand and then began licking him. He started petting Max then got down face to face with Max to rub his head. The waiter stated later that Max growled for a second and then attacked him. The waiter was bitten in the face and on his arm causing significant damage. The waiter lost his upper lip in the attack and suffered horrible facial wounds. There were deep puncture wounds on the waiter’s arm as well.

The waiter testified later that while he was in the hospital, on July 27, 2004, the male owner of the café called him to apologize and told him that he would never allow Max in the same room with his own daughter. He stated that Max had bitten him on his arm causing him to have to have stiches. He also referred to Max as “a weapon of mass destruction.” The male owner of the café claims that this conversation never took place.

The waiter hired a lawyer and filed a lawsuit naming the café and both owners of the café liable for the incident and requesting punitive damages. In order for the courts to award punitive damages in a dog bite case there are several issues that must be addressed. First and foremost in this case is: Who is the actual owner of the dog and did that person know or should they have known that the dog was vicious. Secondly, since the incident occurred in front of the café and the dog is owned by one or both of the owners of the café: Can the café be liable. And lastly, since the waiter was working for the café at the time of the injury is workers comp responsible for the damages to the employee.

According to case law set by the case of: See Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 (1st Dept 2004) the courts do not usually award punitive damages in cases of ordinary negligence. So it becomes up to the victim and her Lawyer to show a “wanton or reckless disregard ” of the victim’s rights, and “acts which are grossly negligent and reckless.” Giblin v. Murphy, 73 NY2d 769, 772 (1998)

In the state of New York, a dog can be described as vicious even if the current case is the first time that the dog has ever bitten anyone. That is “if” the complainant can show that the dog had exhibited signs of being vicious short of actually biting anyone prior to the dog bite that is in question. Some of the signs that the dog could exhibit to demonstrate viciousness would be growling at people, snarling at people, or just showing its teeth in an aggressive manner in the presence of people. Of course, a previous incident of actual biting is demonstrative of viciousness as well. Some other indicators that the Court will take in to account are things like a “Beware of Dog” sign. A “Beware of Dog” sign demonstrates a certain knowledge of the dog owner that his or her dog is likely to be vicious even if it has never bitten anyone before.

The applicable standard in these cases in New York is whether the dog owner had any knowledge of the dog’s tendency to bite or otherwise be vicious prior to the attack on the victim. In this case, it is difficult to determine who the actual owner of the dog is.

Both of the café owners went to the dog adoption and chose Max to be adopted they were required to wait and come back the following day. The following day, only the male café owner returned and adopted the dog. The male café owner is the only one listed as the dog’s owner on his dog license issued by the City of New York’s Department of Health and Mental Hygiene. The Center for Animal Care and Control where Max was adopted also lists the male café owner as the sole owner of Max.

However, in the case of ownership, we must also look at who exercised dominion over the dog. In this case, the female owner of the café testified that she walked Max on a regular basis and took him running with her. She further stated that she was the one who took Max to the vet, made the appointments and that she was the one who made the appointment to have Max euthanized following this attack. She stated that she alone had taken Max to the vet to be put down and that she had paid the bill to have him put down and cremated on August 16, 2004.

The vet who performed the procedure to put Max to sleep, testified that the female owner of the café had told him that she was the owner of the dog. That in fact, in New York, only the registered owner of the dog can authorize a vet to put a dog to sleep. He testified that the female cage owner had informed him that she was the owner of the dog. She was the only person that he ever saw associated with the dog and that she was fully aware of the fact that the dog was vicious.

As evidence that she did know or should have known that Max was vicious, the veterinarian stated that on occasions when Max was brought in to the office, he was difficult to deal with. He stated that Max would growl, snap and attempt to bite the staff that tried to work with him. The vet stated that one time when Max was brought in for a flea dip and bath, he had been so dangerous to work with that the vet had to tranquilize him and muzzle him so that he could be worked with safely. The vet stated that the female café owner was aware of these incidents.

When asked why the female café owner was the one who took Max to the vet if she was not his owner, the male café owner testified that she had more experience with dogs and that she had owned dogs before. He stated that was why she “Took more control of Max.” It is unclear if she ever disclosed to the male owner of the café that Max had exhibited one or all of the legal requirements to be listed as a vicious dog under the laws of the State of New York. What is clear is that there was testimonial evidence to the effect that the male owner of the café had his own knowledge of the viciousness of his dog.

When asked about the comments that he had made to the waiter about having been bitten by Max so severely that he required stitches, he denied that the conversation with the waiter had ever taken place. He stated that he had never been bitten by Max or any other dog. A forensic physician was brought in to examine a scar that was evident on the man’s arm and compare it to a similar scar caused by Max’s attack on the arm of the waiter. The doctor stated that the male café owner’s scar was the result of a dog bite in his opinion and that it was consistent with the scars on the waiter’s arm caused by Max.

The court ruled that there was enough of a question of fact in the case of both of the owners of the café to point to the fact that in one way or another they were both considered owners or in control of Max prior to the attack at the café. Even though they had asked the court for summary judgments dismissing their liability in this case because they had no idea that the dog displayed aggressive tendencies and in the female café owners case, that she was not even the owner of the dog.

A second summary judgment had been requested stating that the café as an entity had no responsibility in this case. This is important because it is not common to hold a business responsible for a dog bite on their premises. In this case, the court agreed that since the incident did not even occur inside the business, but just on the sidewalk in front of the business, that the business could not be held responsible for the incident. The summary judgment removing the café as a responsible party was approved and so ordered.

Lastly, was this incident an on the job injury to be handled by workers compensation and not a personal liability case against the owners of the dog and the café. The workers compensation board held a hearing on the subject and ruled that since the waiter was on break and not even on the premises of the café when he was bitten that they were inclined to rule that it was not a workers compensation injury. Further, he was not injured performing a duty that was job related. In no way is playing with a dog in front of the business relevant to the job of a café waiter. Therefore, it is not a workers compensation claim and will not be covered by workers compensation.

Finally, the Court ruled as follows:

The summary judgments to relieve the café owners of responsibility in the case of this dog bite was denied because they knew or should have known that the dog was vicious and that both in their own ways exhibited control over the dog and claimed ownership at different times. The court did rule to separate the claims against each owner to be heard apart from the other.

The summary judgment to relieve the business of responsibility was accepted and the café is ruled to have no liability in this situation.

Workers compensation ruled that the injury was not a result of the waiter’s job responsibilities and did not occur on the work premises, so it is not an injury covered by workers compensation protections.

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