Infant plaintiff, a 5-year old, has been over at defendants’ house a couple of times prior to the subject incident and has met defendants’ dog, a Labrador Retriever, approximately ten times before and that it was a friendly dog. On 5 April 2001, at dinnertime, when infant plaintiff was at defendants’ house and had just finished eating, the subject dog was around the table right next to him. Infant plaintiff had just gotten up from his chair when he was petting the dog on his back near his neck and the dog growled a little bit, turned towards him, and then bit him in his nose and lip.
Thereafter, an action to recover damages was filed for personal injuries allegedly sustained by the infant plaintiff, as a result of the dog bite incident. Infant plaintiff’s mother sues derivatively. The complaint alleges that the subject dog was vicious with a ferocious nature and disposition and that the defendants knew of the dog’s vicious character and disposition.
Defendants now move for a summary judgment dismissing the complaint on the ground that there is no evidence showing that their dog possessed vicious propensities and they had no knowledge of any such propensities prior to the incident. In support of their motion, the defendants submit, inter alia, the pleadings, the deposition transcripts of both plaintiffs and defendants, and the dog’s veterinary records.
Defendants argue that the evidentiary facts demonstrate their entitlement to summary judgment. They assert that their sworn deposition testimony establishes that their dog never exhibited vicious propensities prior to the incident, and that they had no reason to know of such propensities as they never received any complaints about the dog’s behavior, or had any problems with the dog prior to the incident.
Whether or not defendants knew or should have known of their dog’s vicious propensities. Whether or not defendants are liable to infant plaintiff for the injuries he suffered as a result of the dog attack or animal attack by defendants’ dog.
It is well settled that an owner of a domestic animal who either knows or should have known of that anima’s vicious propensities will be held liable for the harm such animal causes as a result those propensities. Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice. Similarly, an attack which is severe and unprovoked may be an indication of vicious propensities. In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious but nevertheless reflects a proclivity to act in a way that puts others at risk of harm can be found to have vicious propensities, albeit only when such proclivity results in the injury giving rise to the lawsuit.
Here, defendants have failed to make a prima facie showing of their entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any triable issues of fact. The deposition testimony of infant plaintiff’s mother to the effect that the dog was hyper, had previously injured infant plaintiff, and that the attack at issue was unprovoked and fairly severe, as well as defendant-woman’s deposition testimony concerning the dog’s growling, jumping, territorial barking, and their use of an electronic collar on the dog, raise triable issues of fact as to whether the subject dog had vicious propensities and whether the defendants knew or should have known of such propensities.
Henceforth, upon a review of the records of the case, defendants’ motion for summary judgment dismissing the complaint against them is denied.
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