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New York Appellate Court Discusses Assumption of Risk in Dog Bite Case


A couple entered into a gas station to purchase tires and they were directed by an attendant to look along the back bay area of an enclosed garage. The gas station kept a chained dog in the rear bay area of the garage where the tires were located. While standing in the back bay area, the dog attacked the man causing injuries. There was a testimony that other persons were known to have been previously bitten by the said animal. The couple filed a complaint against the gasoline station for the alleged dog attack.

Under the common law, the owner of an animal or inanimate object was absolutely liable for any harm caused thereby. Those who kept cruel animals for their own purposes were required to protect the community, at their own risk, against any danger involved. However, under the modern tort law, the complainant must prove that there was a dog bite, that the animal had cruel tendencies and that the owner or person responsible for the animal had or should have had knowledge of the animal’s cruel tendencies.

An examination reveals that it is not limited to causative negligence or assumption of risk, but includes liable conduct in general. The court holds that the defense of harm’s way is within the scope of such liable conduct. The law applies despite the labeling of the defense as assumption of risk or other liable conduct.

Base on records, the court holds that the law does not expand the substantive law so as to add the defense of comparative negligence. The tort complained of not allowing for a defense of contributory negligence, the adoption of it will not be the instrument of its creation.

The court must consider whether the couple fully understood the risk involved and whether he appreciated the circumstances. Except where expressly agreed, that the couple does not assume the risk unless he is aware of the facts, he appreciated the danger, nature, character, and extent which made the act unreasonable.

The gas station bears the burden of proof as to the risk that the couple allegedly assumed. The station must prove either that the couple, knowing of the animal’s cruel tendency, placed his self in harm’s way, or wantonly excited the animal.

In the instant case, no evidence was adduced at the proceeding to indicate that the couple knew or should have known that any dog was on the premises and by not knowing of any risk, he could not have assumed such a risk, or its consequences.

The contributory and comparative negligence are not bars to recovery for injuries sustained from a dog bite. Further, the act of placing oneself in harm’s way becomes a comparative defense in reduction, rather than an absolute bar to recovery.

The court further holds that a dog bite case is similar to assault cases and must be tried in a unified manner. The court states that in all negligence actions to recover damages for personal injury, the issues of liability and damages shall be served and the issue of liability shall be tried first. In exceptional situation and for reasons to be stated in the record in the discretion of the judge presiding over the calendar part, good reason exists as to why such a severance should not be granted, he may order a single trial on the issues of liability and damages.

Further, the court holds that the absent of the determination of the issue by the calendar judge, the trial judge may determine the issue of division if it should arise at the time of trial. The court further holds that in the case at bar circumstances dictated that the trial be conducted as a unified whole.

We must consider the fact that not all dogs are protected with vaccines and not all of them receive a regular care from veterinaries. If you’ve been a dog bite victim, seek immediately a doctor for your health and a NY Dog Bite Attorney for your legal needs. However, if you obtained injuries due to other people’s negligence, the NY Injury Attorneys at Stephen Bilkis and Associates can offer you better understanding of your lawsuit.

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