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Appellate Division of the Supreme Court of the State of New York

On May 31, 2011 the Appellate Division of the Supreme Court of the State of New York was asked to hear an appeal in reference to a dog biteincident which occurred in Ulster County in the Town of Marlborough. The facts of the case are undisputed. A child was sitting on her bike near a neighbor’s property. The neighbor owned a dog that he kept in his yard. The dog was kept in the yard by an underground electric fence system operated by a device on the dog’s collar. The system is sometimes referred to as an invisible fence.

It was October of 2008 when the dog saw the child on the bicycle. The dog ran through the fence system, jumped up on the child and bit and injured her. The child’s parents filed a law suit against the owner of the dog based on common-law negligence and strict liability.

The dog’s owners moved for a summary judgment to dismiss the complaint because they stated that they had no prior knowledge that their dog was capable of being vicious, otherwise known has having vicious propensities. The Supreme Court granted the motion. The victim and her parents appealed the decision.

The victim and her lawyer maintain that the owners of the dog were well aware of the animal’s proclivity to bite people because they had trained the dog to bite people. The dog’s owner, who is a local police officer, was known to put on a police dog training sleeve and encourage the dog to jump up, bite the sleeve, and hold on. The owner claims that it was just a way of playing “tug –o-war” with the dog and that he was not teaching the dog to attack people. The victim’s parents maintain that if you teach the dog to play or act in a way that puts others at risk of harm then according to Bard v Jahnke, 6 NY3d at 597 you can assume that the dog will have vicious propensities.

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. The Honorable Justices found that the evidence as it exists is such that a jury could reasonably conclude that the way the dog reacts to and bites the attack dog training bite sleeve, is obvious enough to put any dog owner on notice that the dog may bite a person in the same manner. It does not matter that the owner claimed that the behavior was only play. It does not matter if the dog viewed it as play. The dog was taught to jump up and grab hold of a person’s arm with its mouth. The fact that the dog’s owner needed a protective sleeve while encouraging this play is proof that the dog was in fact biting hard enough that protection was needed so that the owner would not sustain injury. The owner did not put forth any evidence to indicate that he had taught the dog that the game only applied to person’s wearing protective clothing. Therefore, the owner should have known that this dog would think that this behavior is an appropriate form of interaction with humans. There is no evidence presented to demonstrate that the dog would have acted in any other manner if it decided to play with someone the way that its owners had taught it to play by biting. In fact, we know that the dog did bite someone. In this case, it was a child. Further, the manner of the bite; jumping up and biting, reportedly is quite consistent with the manner in which the dog owner had taught his pet to play.

The Justices decided that summary judgment on strict liability was not appropriate. This decision was based on the fact that in order to find strict liability the behavior of the owner must be such that they exercised a reckless disregard for the safety of others. The Justices were in agreement that teaching the dog to bite and hold onto a person arm is reckless. The reckless disregard for the safety of other persons living around them was increased by the fact that the dog was not secured in a way that would prevent other persons from coming into contact with it. The Justices were in agreement to uphold the issue of strict liability for injuries in this case.

The dog’s owner in his own deposition admitted that he had obtained the dog bite sleeve through his employment as a police officer and that it was the type commonly used in the formal training of K-9 dogs to teach them to bite and hold onto a subject’s arm until given the command to release. Whether or not the dog had ever exhibited any other forms of aggression as outlined in the law, the behavior with the bite sleeve is sufficient to qualify under the law as aggressive tendencies.

Since the victim can only recover punitive damages under the theory of strict liability, the claim of common-law negligence was dismissed. The case will continue under strict liability which proof was delivered in the form of the dog owner’s own deposition.

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