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Defendants Move for Summary Judgment in Dog Bite Case, NY Appellate Court Denies


Plaintiff was employed by a Parcel Service. On 12 August 2003, upon completion of his route, plaintiff was given an additional ten (10) stops and one of which was the home of defendants (defendant-man and defendant-woman). While plaintiff was at defendants’ premises, he heard the defendants’ dog barking and scratching the door as he dropped the package on the stoop and rang the doorbell. As plaintiff approached his van, he heard someone behind him instructing him not to move. As he turned around, the dog, a Rhodesian Ridgeback, bit his right elbow. He then ran into his truck, where the dog followed him, and bit him once again on his right hand.

Thereafter, on 22 October 2004, plaintiff commenced a personal injury action against defendants as a result of the dog bite incident. The complaint alleges that the defendants’ dog had vicious propensities and that defendants negligently supervised, controlled and maintained the subject dog.

Defendants move for a summary judgment and a dismissal of plaintiff’s complaint.

The Ruling:

Under the rules, in determining a motion for summary judgment, the court must ascertain whether there are any triable issues of fact in the proof laid bare by the parties’ submissions of affidavits based on personal knowledge and documentary evidence, rather than in conclusory or speculative affidavits. When a plaintiff seeks to recover in strict liability in tort for a dog bite, the plaintiff must prove vicious propensities and that the dog owner or person in control of the dog should have known of such propensities. The vicious propensities which go to establish liability include a propensity to do any act which might endanger another. 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. Such behaviors can include the animal being territorial, aggressively barking when her area was invaded, attacking another animal (animal attack), or growling and biting at another dog (dog attack). Moreover, courts have held that, even in the absence of a prior bite, a triable issue of fact regarding knowledge of vicious propensities may be raised by other evidence of the dog’s aggressive behaviors.

Here, defendants admit that their dog would occasionally bark at other dogs as well as people on bikes, skateboards or walking near the house. Defendants were aware of incidents in which their dog jumped up on guests visiting their house. Furthermore, Rhodesian Ridgebacks, as a breed, are known to protect their territory against other animals and strangers. While defendants have testified that they were unaware of their dog ever biting or acting aggressively towards anyone prior to the incident with plaintiff, plaintiff has presented sufficient evidence that may or may not show that the dog did in fact have vicious propensities.

First, the neighbor across the street from the home of defendants claims to have been previously attacked by the subject dog. He states that the subject dog jumped on him and scratched his arm while he was at defendant’s home; that defendants were aware of this incident; that he was told by defendant-woman that the subject dog’s reaction to him was because he was protective and did not care for men; that defendant-man characterized the incident as one of his dog “playing” with him.

Second, defendants were also aware of an incident in which their dog jumped on a Long Island Lighting Corporation (LILCO) employee who was reading the gas meter in defendants’ backyard, although defendants claim that this does not constitute aggressive behavior because the LILCO employee was not knocked down or injured.

Lastly, the postman for defendants claims that the subject dog chased him down the street to a neighbor’s home; that, on one occasion, the dog lunged and barked so violently at him that the dog broke a window in the house.

Clearly, there are issues of fact with regard to the subject dog’s behavior on the aforementioned occasions. Whether the dog’s behavior should be considered territorial, aggressive, or vicious is an issue for a jury to decide.

In the instant case, defendant-woman admits to asking plaintiff not to move as their dog was running towards him. Plaintiff claims that such is evidence that defendant-woman knew of their dog’s dangerous propensities and realized that if he moved he would be attacked by the dog. Defendant-woman contends that she only yelled out to him because their dog had been known to run at children and knock them over in a playful manner. However, the meaning behind such warning is an issue of fact for the jury to decide.

As a rule, evidence of knowledge of propensities may be found in an owner’s precautions to restrain the dog. In this case, defendants admit to restraining the dog in their front yard with two (2) leashes tied to a tree. Defendants claim this restraint was not to prevent injury to others, but only to prevent their dog from running into the street and injuring himself. Nonetheless, whether this restraint gives rise to an inference that the subject dog had vicious propensities is a triable issue of fact.

It is well settled that a claim of injury caused by a domestic animal may also be based upon a theory of negligence. For a plaintiff to recover based on a negligence theory, there must be both a breach of some distinct duty required by the particular circumstances and the injuries sustained by the plaintiff must be reasonably foreseeable.

Notably, defendant-woman concedes that she was aware that her front door did not close completely. Thus, the court finds that issues of fact exist as to whether the defendants were negligent in their supervision and control of their dog.

Accordingly, defendants’ motion for an order granting summary judgment and a dismissal of plaintiff’s complaint is denied; the trial is ordered to proceed.

Taking dogs or any animal under one’s care doesn’t just mean feeding, giving shelter, or taking them to veterinarians for their checkups, etc. Taking an animal into one’s home comes with great responsibility, that is, the safety of everyone around. If you have been a victim of a dog bite, consult a Nassau County Dog Bite Lawyer straight away. A Nassau County Animal Attack Lawyer at Stephen Bilkis & Associates can help you. Contact us for a free consultation.

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