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On 4 August 2003, plaintiff attended an afternoon party

On 4 August 2003, plaintiff attended an afternoon party thrown by the defendants (defendant-one and defendant-two) at their house. While standing in defendants’ pool area, plaintiff was bitten on her left ankle by defendants’ dog, a nine year-old cockapoo weighing approximately twenty-five pounds.

Plaintiff has filed a complaint for the dog bite incident against defendants. Subsequently, plaintiff moves for an order granting her leave to serve and file an amended complaint to seek punitive damages; that defendants were negligent and should be held strictly liable for plaintiff’s injuries since they were aware of the dog’s vicious propensities. Plaintiff is also asserting psychological damage resulting from the incident.

Defendants oppose the motion.

According to the medical reports submitted by plaintiff, plaintiff received a four centimeter laceration on her left, lower leg that pierced through her skin, and underlying muscle. Plaintiff suffered a bone infection, nerve damage and permanent scarring. She underwent two ambulatory surgeries, spent five days hospitalized and a month in outpatient treatment, and also has received weekly occupational therapy sessions beginning in July 2004.

Plaintiff testified that: on the day of the incident, defendant-two told her that the dog had bitten before.

Defendants testified: that on the date of the incident, they may have put the dog in the bedroom around noon, prior to guests arriving; that they did not warn guests of the presence of a dog; that they did not instruct staff or family members to place the dog back in the bedroom if she got out; that their property line is surrounded by an electric fence to prevent their dogs from going into the street and onto the beach, however, they only put collars, which render the fence effective, on their dogs sometimes.

Neither defendant could recall seeing the dog outside at the party prior to the incident. Defendant-two testified that the bartender informed her that the dog had been sleeping under a table near the pool area immediately before the dog bit the plaintiff.

The record contains evidence that before the incident, the dog had bitten three other people at or in the vicinity of the defendants’ house in Easthampton.

An employee of the United Parcel Service (UPS) testified: that on 27 March 1998, he was bitten on the right ankle by the subject dog, while delivering a package to the defendants’ house; that he went to the hospital, received a shot, but sought no further treatment for the injury; that when he returned to defendants’ house on other occasions to deliver packages, the dog was out loose ninety percent of the time and that the dog was trying to charge after him and wanted to take another bite; and that as a result, he left the packages for defendants at the end of the driveway so he would not be bitten again. The employee initiated a legal action against the defendants for the 1998 incident and the parties agreed to a settlement on 7 December 2001.

Another employee of UPS testified: that he was bitten by the subject dog outside the defendants’ house in August of 2000; that he received four or five puncture wounds on the back of his right calf that caused him to bleed; that, after the incident, he went into the house and the housekeeper cleaned the area where he was bitten and bandaged the wounds; and that he did not seek any medical treatment for his wounds.

Another person testified: that she was bitten by the subject dog in the summer of 2002 while walking on the beach in front of defendants’ home; that the dog, which was with defendants’ housekeeper and was not on a leash, lunged at her and bit her through her pants; that, although the bite did not break the skin and she did not receive any medical treatment, the bite hurt which resulted in a bruising to her leg; that after the dog bit her, defendants’ housekeeper took her phone number; that after defendants failed to contact her, she visited their house and defendant-two said she had heard about the incident; that, after she told defendant-two about her ruined pants, she wrote her a check for one hundred dollars; and that she showed her bruise from the dog bite to defendant-two’s son and probably to defendant-two.

Defendant-two testified: that she had no knowledge of her dog biting anyone prior to the incident involving the plaintiff. However, as indicated below, there is evidence in the record from which it could be inferred that both of the defendants knew about some or all of the three prior incidents.

On 29 April 1998, a month after the 27 March 1998 dog bite incident, a local newspaper published an article written by defendant-one about the dog confessing, sort of, in which defendant-one indicates that he knows that the dog is guilty of biting a UPS man on the ankle. In the article, defendant-one writes that, although he knows that the dog is guilty, he can’t do anything about it and that everything seems to be going along fine in his household and he can’t think of finding and breaking in another dog at that time. So the dog stays and from time to time he will bite and lie and get away with it.

Defendant-one testified: that the article was satirical and purely fictional, and had no relation to the 27 March 1998 incident.

Plaintiff asserts, in seeking leave to amend the complaint to add punitive damages, as the record shows, that defendants engaged in a conduct which demonstrated a wanton, willful, and reckless disregard for the safety of the plaintiff and that defendants failed to take any precautions to protect their guests, despite their knowledge that there were three victims who had been bitten by the subject dog.

Defendants counter that their purported conduct did not rise to the requisite egregious, or reprehensible actions aimed at the public required to support a request for punitive damages. Defendants also argue that any purported prior awareness of the previous dog bite incidents is relevant only to the extent that plaintiff claims that defendants are strictly liable for plaintiff’s injuries.

The Issue:

Should the motion to amend the complaint be granted and include a recovery of punitive damages?

The Ruling:

Under the law, motions to amend are freely granted in the absence of prejudice or unfair surprise resulting from the delay, unless the proposed amendment is plainly lacking in merit. Here, defendants do not claim prejudice or unfair surprise in their opposition to plaintiff’s motion to amend. Therefore, the issue is whether the proposed amendment is of sufficient merit.

To demonstrate merit of the proposed amendment, the proponent must allege legally sufficient facts to establish a prima facie cause of action or defense in the proposed amended pleading. If the facts alleged are incongruent with the legal theory relied on by the proponent, the proposed amendment must fail as matter of law. When the proponent meets this initial burden, the merit of the alleged pleading must be sustained unless the alleged insufficiency or lack of merit is clear and free from doubt.

Courts do not award punitive damages in cases of ordinary negligence. Instead a punitive damage claim in a tort action must be based on evidence of conduct which exhibits a wanton or reckless disregard of plaintiff’s rights and acts which are grossly negligent and reckless. An act is wanton and reckless when done under circumstances showing heedlessness and utter disregard for the rights and safety of others.

On the other hand, in a tort action, unlike a claim based on a contractual relationship, it is not necessary to show that the harm was aimed at the general public so long as the very high threshold of moral culpability is satisfied.

Here, although defendants deny knowledge of any prior incidents in which the dog bit others, reasonable inferences can be drawn from the record that defendants were aware that their dog had previously bitten three individuals without provocation, that, at the party where plaintiff was bitten, they permitted the subject dog to run loose without precautions and, thus, consciously disregarded the safety of those on or near their property.

Moreover, despite defendant-one’s testimony that the article about the dog biting the UPS man was fictional, based on the similarity of facts and the one-month interval between the incident and the article, a trier of fact could reasonably infer that such defendant was aware of and writing about the actual incident. Furthermore, a trier of fact could reasonably infer from the article a lack of intent by defendants to take any measures to prevent further incidents involving the dog’s biting, and, thus, their deliberate disregard for the safety of others.

Next, notwithstanding defendant-two’s denial, in view of the testimony regarding the $100 check received from defendant-two, a reasonable inference could be drawn that such defendant was aware of the third incident. In addition, defendants’ knowledge as to the first incident can be inferred from the fact that the UPS employee commenced a lawsuit against them, which was later settled on their behalf.

Here, ample evidence exists from which the trier of fact could infer that defendants were aware of the subject dog’s tendency to bite, but deliberately failed to prevent further incidents. Defendants are correct that evidence of defendants’ knowledge is relevant and material to plaintiff’s theory of strict liability, which requires a determination that the dog has vicious propensities and that defendants knew or should have known about such propensities. However, the evidence is equally relevant and material to plaintiff’s claim for punitive damages, specifically as to the question of whether defendants’ knowledge of the dog’s tendencies and their conscious and deliberate failure to take any precautions to prevent future incidents, constitutes a wanton and a reckless conduct in utter disregard for the rights and safety of others.

While there is no binding precedent on point, a lower court has awarded punitive damages in a dog bite case where the owner knew of the dog’s vicious propensity and the owner’s conduct showed a reckless disregard for the rights and safety of others. In a similar case, the court has awarded punitive damages where a large dog with known vicious propensities mauled a neighbor’s smaller dog. The defendant’s dog was a German Shepard which had attacked one of the neighbor’s two small dogs on two prior occasions, causing severe injuries. Even though the owner had installed a fence to enclose the dog prior to a third animal attack on a second dog belonging to the same neighbor, the court found that punitive damages were appropriate and necessary to deter other dog owners from failing to protect humans and other animals from vicious and dangerous dogs.

In another similar case, the court held that punitive damages were not warranted in another dog-attacks-dog case because there was no proof that the dog had known vicious propensities, and the dog owner’s failure to control his dog amounted only to mere negligence.

Similarly, in another case, the Appellate Division, Fourth Department, held that punitive damages were not appropriate where an unleashed dog knocked a plaintiff off his bicycle. The Fourth Department wrote that defendants’ disregard of or indifference to the dog’s roaming does not rise to the level of egregious conduct required for the recovery of punitive damages. Notably, however, there was no indication, that the dog had previously injured a person or animal.

Here, there is evidence that the defendants knew of prior incidents before the dog attack at issue. The record suggests that on the date of the incident, the subject dog was permitted to roam the party despite these incidents. Defendants’ knowledge of the dog’s propensity to bite is not only relevant to whether plaintiff can recover under a strict liability theory, but is also relevant to plaintiff’s claim for punitive damages, i.e. whether defendants consciously and recklessly disregarded the danger posed by the dog.

The court recognizes that, in many instances, punitive damages would be an inappropriate remedy for injuries arising out of a dog bite. However, as a motion to amend the pleading requires only a prima facie showing of merit, the court concludes that, under the unique circumstances of the case, plaintiff has pleaded legally sufficient facts establishing that the amendment adding a request for punitive damages is not plainly lacking in merit and defendants have failed to controvert this showing.

Accordingly, plaintiff’s motion to amend is granted and shall include a demand for punitive damages.

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