In Gervais v. Laino, plaintiff sought to recover for injuries inflicted by defendant’s dog. The court held that plaintiff’s complaint should have been dismissed.
Plaintiff stated that while walking in Central Park, she saw the dog, whose hind paw was caught in a fence and who was wailing in pain. The parties apparently disputed whether plaintiff was “leaning over the dog and deciding what to do”, or whether she was attempting to free the dog, when the dog lunged at her.
New York law provides that “[i]n order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident.”
In support of her motion for summary judgment,
defendant submitted evidence of her dog’s gentle disposition and her lack of knowledge of any vicious propensities, including four affidavits from neighbors and other dog owners who know defendant’s dog, as well as test results indicating that the dog was awarded the American Kennel Club’s Good Citizen certification. The latter demonstrates that defendant’s dog is cooperative, and does not have a history of attacking or injuring people.
In response, plaintiff submitted testimony from defendant’s neighbor that the defendant’s dog and the neighbor’s two dogs had a history of growling at each other and were involved in two scuffles.
This, according to the court, was insufficient:
No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and [one court] has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities. Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities.