While “running and playing” with other dogs, defendants’ 50-pound Labrador Retriever, Delilah, knocked plaintiff down from behind, causing serious injuries.
The Appellate Division, Third Department last week in Bloom v. Van Lenten dismissed plaintiff’s lawsuit.
The lower court allowed plaintiff’s strict liability claim to survive, finding questions of fact as to whether Delilah had “vicious propensities of which defendants were aware.” The Appellate Division disagreed.
First, the court summarized New York law on animal-related injuries:
[T]he owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. … As the movants, it was defendants’ burden to establish that they had no prior knowledge that Delilah had any vicious propensities. … Notably, a vicious propensity does not necessarily have to be “dangerous or ferocious” but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long as such proclivity results in the injury giving rise to the lawsuit. … Nonetheless, “normal canine behavior” is insufficient to establish a vicious propensity.
The lower court “correctly found that defendants met their initial burden of establishing their lack of knowledge of vicious propensities with regard to Delilah”, which shifted the burden to plaintiff to show a triable issue of fact.
Plaintiff attempted to do so by pointing to the fact that the defendants “each told her that Delilah had previously done to them the same thing she had done to plaintiff.”
This, however, was not enough:
Plaintiff’s claim here is that Delilah knocked her down by running into her as the dog was running and playing in the backyard with other dogs. Plaintiff does not allege that the dog jumped on her, bit her or otherwise took any purposeful action that was directed at her. Delilah’s act of running into plaintiff in the course of being playfully chased by other dogs merely consisted of normal canine behavior that does not amount to a vicious propensity.
Therefore, defendants “conclusively demonstrated that they lacked knowledge of a vicious propensity on Delilah’s part, entitling them to summary judgment dismissing the complaint.”