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The Facts:

Defendants (defendant-woman and defendant-man) have been involved in a romantic relationship since 2002. Defendant-woman maintains her own residence while defendant-man rents an apartment in a townhouse, owned by defendant-woman. Defendant-woman has never lived at the place where defendant-man lives. The two of them co-own a café. During the summer of 2004, plaintiff approached defendant-man about the possibility of working at the café. Defendant-man told him they might be able to work something out and that he should come back and work a few days a week to see if it was a good fit. Plaintiff, thus, began training as a waiter.

On 26 July 2004, defendant-woman was working at the café. It was defendant-man’s day off, but he stopped by the café to check and see if everything was okay. He brought his dog with him, a 120 pound brown and white Akita, but not inside the café. Rather, defendant-man tied the dog’s leash to either a parking meter or a fire hydrant on the curb of the sidewalk, just outside of the café. Defendant-woman went outside and pets the dog for approximately 10 minutes before she left for dinner.

Meanwhile, plaintiff was also working at the café and planned on remaining there that evening until he finished up. After defendant-woman left, plaintiff went outside to take a break, see defendant-man, and play with the dog. He walked over to the dog and began petting it. He put his hand out so the dog could smell it, and the dog began licking him. When he got down on one knee and rubbed the dog’s head, the dog growled for a split second, and jumped at plaintiff biting him in the face and on his arm. As a result of the dog attack, plaintiff lost his upper lip, suffered severe facial wounds and puncture wounds to his arm.

Subsequently, a personal injury action was filed by plaintiff against defendant.

Defendants, the co-owners of the café, now move for a summary judgment dismissing the complaint and plaintiff’s demand for punitive damages. Defendant-woman, in a separate motion, moves for a summary judgment. Plaintiff opposes. The motions are consolidated for disposition.

The Issues:

Is the café liable? Are defendants liable? Is the injury covered by the Workmen’s Compensation? Is the award of punitive damages proper?

The Ruling:

A party moving for a summary judgment must make a prima facie showing of entitlement to judgment, as a matter of law, by tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once movant has made the requisite showing, the burden shifts to the nonmoving party to produce evidentiary proof, in admissible form, sufficient to establish the existence of a triable issue of material fact.

On the issue of the Café’s Liability:

In order for a premises owner to be held liable for a dog bite, plaintiff must demonstrate that defendant knew of the dog’s presence on the premises, its vicious propensities, and also that defendant had control of the premises or otherwise had the capability to remove or confine the dog. Ordinarily, property owners owe no duty to persons outside their premises, and summary judgment has been granted in favor of premises owners, dismissing complaints of dog-bite victims, where the injuries occurred outside of the premises.

Here, plaintiff testified that the dog was tied to a parking meter on the curb outside of the café and plaintiff was not on the café’s premises at the time of the alleged animal attack. Therefore, the café owed no duty to plaintiff when he was bitten and a summary judgment for the café is granted.

On the issue of Defendants’ Liability:

A dog owner may be held strictly liable for an injury inflicted by his animal if plaintiff can establish both (1) that the dog had vicious propensities and (2) that the owner knew or should have known of the vicious propensities. Vicious propensity is defined as a propensity to do any act that might endanger the safety of the persons and the property of others in a given situation. Knowledge of vicious propensities can be established by proving that the owner had notice of prior similar acts. A triable issue of fact as to the knowledge of a dog’s vicious propensities can be raised, even without any proof that the dog had previously bitten someone, with evidence that it was known to growl, snap, or bare its teeth. Dog owners are not entitled to one free bite. On the other hand, a defendant will not be held liable where there is no evidence that it owned, possessed, harbored, or exercised dominion and control over the dog.

Here, the records from the dog’s vet visits on 2 occasions list defendant-woman as the owner and demonstrate that she paid for the visits. There is no mention of defendant-man as the owner of the dog on any of the records. Further, there is no evidence that defendant-man ever took the dog to the vet or attended to any of his health needs.

Moreover, a doctor testified that only dog owners are permitted to authorize the euthanization of an animal. Defendant-woman took the dog to be euthanized and paid for it, although she disputes her signature on the authorization. When questioned, the authority of a signature is a triable issue.

The deposition testimony also clearly establishes that defendant-woman walked the dog and took him running. This, combined with defendant-man’s testimony, and the veterinary records, create material issues of fact as to how much dominion, control and responsibility defendant-woman exercised over the dog and her possible ownership.

Further, issues of fact remain as to whether the dog had any vicious propensities and if defendants knew or should have known of these propensities. An opinion evidence of a doctor has been presented which demonstrates that defendant-man has a scar on his arm that came from a dog bite similar to the one received by plaintiff. Then too, another doctor testified that during his examination of the dog, it was aggressive, difficult to deal with, and had to be muzzled; that during a flea bath, the dog had to be muzzled and tranquilized because he attempted to bite the doctor and his technician. Such testimony creates material issues of fact as to whether or not the dog had vicious propensities and whether defendants knew or should have known of these propensities.

On the issue of Worker’s Compensation:

The Workers’ Compensation Board has primary jurisdiction over the issue of the availability of coverage. A plaintiff has no choice but to litigate this issue before the Board. The Board must be given the opportunity to determine if a plaintiff’s injuries are the result of a compensable accident. The compensation claim is a jurisdictional predicate to the civil action. The Board’s decision is a final determination of the controversy between the parties to the hearing. And, any party to the hearing, who had the required notice and opportunity to be heard, is precluded from relitigating issues decided by the administrative judge. Since workers’ compensation is an exclusive remedy, a Board determination that a plaintiff is entitled to compensation precludes that plaintiff from pursuing a civil remedy for his injuries even against employer-defendants who were not parties to the hearing. If the Board finds the injuries outside the purview of the Workers’ Compensation Law, any party who participated in the administrative hearing is precluded from asserting the affirmative defense of compensation coverage in any ensuing civil action.

Here, the Court will not stay the motion pending defendants’ appeal of the Board’s decision. On 16 August 2006, the Board’s decision was issued holding that the incident did not occur out of and in the course of plaintiff’s employment and denied the workers’ compensation claim. Therefore, since the Board found the injuries to be outside the purview of Workers’ Compensation Law, and defendants were parties to that hearing, they are precluded from asserting this defense.

On the issue of Punitive Damages:

Punitive damages are available to punish a defendant for outrageous conduct which is malicious, wanton, reckless, or in willful disregard of the rights of others. An act is wanton and reckless when done under circumstances showing heedlessness and utter disregard for the rights and safety of others. In a tort action, it is not necessary to show that the harm was aimed at the general public as long as the very high standard of moral culpability is met.

Here, the punitive damage demand cannot be dismissed. Issues of fact remain as to the level of control defendant-woman had over the dog, whether or not the dog had vicious propensities, and if so, whether defendants knew, or should have known of these propensities. All of this evidence is relevant towards plaintiff’s claim for punitive damages. If it can be established that defendant-woman had some level of responsibility and control over the dog, the questions surrounding any vicious propensities that existed and her possible knowledge of these propensities are all relevant to the possibility that her behavior and failure to take any precautions constituted wanton and reckless conduct in complete disregard of the rights and safety of others.

Also, issues of fact remain as to whether the dog had previously bitten defendant-man, and whether he was aware of any vicious propensities. Defendant-man’s action of brining a supposed vicious dog to a restaurant and tying it outside without taking any precautions against its violent tendencies could be considered wanton reckless behavior.

Accordingly, the motion for summary judgment of the Café is granted and the causes of action against it are dismissed; the defendants’ motions for summary judgment are both denied and the causes of action against them shall continue.

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