Two cases are before two courts for resolution.
A plaintiff filed an action to recover damages for personal injuries resulting from a dog bite. On 26 June 1986, the Supreme Court of Orange County issued an order against the plaintiff and in favor of the defendants granting the motion to dismiss the complaint for failure to establish a prima facie case. The plaintiff then appeals from the said order of the court.
The court finds that the judgment must be reversed, on the law, the motion must be denied, and a new trial must be granted, with costs to abide the event.
Here, the evidence adduced at trial demonstrated that the defendants regularly kept the dog chained to a stake in their backyard, that the dog would growl and pull at his chain whenever anyone entered the backyard, that the defendant owner on one occasion warned another neighbor to stay away from the dog because it would bite, and that the attack by the dog on the infant plaintiff was severe and unprovoked. For this reason, the court finds that the evidence was sufficient to establish a prima facie case with respect to both the dog’s vicious propensities and the defendants’ knowledge thereof. Thus the complaint was improperly dismissed.
Another plaintiff filed an action to recover damages for personal injuries resulting from a dog bite which occurred on or about 11 June 1984, when the plaintiff received multiple bite wounds from the defendants’ German shepherd. A jury trial was conducted and the jury specifically found that the defendants’ dog did not have vicious propensities. On 23 April 1990, the Supreme Court of Nassau County issued an order against the plaintiff and in favor of the defendants. Thus, the plaintiff filed an appeal from the said order of the court. The plaintiff contends that she was denied a fair trial based on the trial court’s refusal to conduct a unified trial on liability and damages.
The court finds that the judgment must be affirmed, without costs or disbursements.
As a general rule, questions of liability and damages for an injury sustained in a personal injury action represent distinct and severable issues which should be tried and determined separately. However, separate trials should not be held where the nature, extent, and gravity of the injuries has an important bearing on the question of liability insofar as it is relevant to the jury’s assessment of the dog’s propensities. Here, the court finds that any error by the trial court was harmless. Plaintiff was given the option to have a unified trial before the trial began; however, it was not until after a jury was selected, opening statements were made, and testimony was elicited, that the plaintiff chose to withdraw the original application and request a unified trial. Moreover, the court permitted the plaintiff to introduce photographs in order to show the nature, extent, and gravity of the injuries sustained by her. Thus, any prejudice to her was nullified by the admission of the photographs. The opinion of the defendants’ expert that the defendants’ dog was not vicious was based upon facts personally known to him as a result of his evaluation of the dog, and, thus, his testimony was both relevant and admissible. The facts with respect to what occurred during the encounter were in dispute. Nonetheless, the defendants produced sufficient evidence to permit the jury to conclude that the dog was not vicious, and, therefore, the court finds it proper to adhere to the jury’s assessment of the witnesses’ credibility and decline to grant a new trial. On the plaintiff’s remaining contentions regarding the court’s jury charge, the court finds them either unpreserved for appellate review or bereft of merit.
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