Published on:

The complainant child allegedly sustained a fractured kneecap

The complainant child allegedly sustained a fractured kneecap requiring open reduction and resulting in permanent disability. In a lawsuit brought on his behalf and by his mother, at the conclusion of their proof upon a trial to determine liability, the complaint was dismissed.

The accused housing authority operated the Housing Project covering 16 blocks of Brooklyn real estate. Within the space were several playgrounds, all open to the public. One of the play areas was about a half block in size. There was a fence around it, with paths leading therefrom to the street and to a basketball court. The playground was equipped with items such as a spider web, rocket, airplane and monkey bars. Children of tender years played in the unsupervised playground. Across the street was a school at which the complainant child then 12 years old was a student.

Every noon hour on nice days from the beginning of school until the day of the accident, pupils from the school went to the playground; that on each occasions an unleashed black, shaggy dog about two or two and half feet tall and belonging to one of housing authority’s employees was in the playground; that during the said period, the dog attacked and attempted to bite the child and on divers instances had chased other children, also trying to bite them. There was also proof that during the luncheon recess period of January 8, 1973 the child went from the school to the playground with his friends; that they were playing tag for about 10 minutes when the dog barked and started chasing them; that the dog chased one of the children and he jumped over a fence; that the animal attacked and chased the other child and he climbed up the monkey bars; that the dog then went towards the complainant who started to run; and that, when the dog bit the complainant child on the pant leg, he tried to break loose but fell at a point about six feet from the bars and could not get up.

Despite questions of inconsistency of proof and credibility of witnesses, the motion should not have been granted because the complainant child had by their proof made out a legitimate case. There was evidence that the black, shaggy dog had been in the public playground during the noon hour, when customarily visited by students, over a four-month period. During the interval, the animal not only chased the children but attempted to bite them. Under the complainant child’s proof, it could be found by the trier of the facts that the complainant child had constructive notice of a dangerous condition upon its playground, that the child ignored the condition and failed in the exercise of the duty cast upon it to remove or prevent the danger, that because of the use of the area by youngsters and considering their propensities, the injury to the child was foreseeable, and that housing authority was liable.

The mere presence of a dog in the playground is neither criminal nor patently dangerous. The alleged incident occurred in a public playground in which any pedestrian could freely bring a domesticated animal. The dog came into the playground for at most a few moments each day. The dog was always accompanied by his master. There is no evidence that prior to the accident, the dog ever bit anyone or caused any physical injury. Even if one could infer a hazard from the fact that the dog allegedly chased children on several occasions, the complainant child failed to establish that the authority had any notice of such occurrences. The undisputed testimony of both the victim and a companion was that over a four-month period, the dog chased them on only five or six occasions.

As a worker on the maintenance staff, the dog owner did not hold any supervisory responsibilities and was not a representative of the authority. He was not on duty when he walked the dog, and his employment responsibilities did not involve the public playground where the accident occurred.

Owning a dog is a great responsibility but we cannot control how animals would react to other people. If your dog bit someone and you are facing a lawsuit, don’t hesitate to call a NY Dog Bite Attorney or a New York Dog Attack Lawyer from Stephen Bilkis and Associates.

Contact Information