Who’s a Bad Boy? “Vicious Propensities” and New York Dog Bite Law

Dog-bite injuries can be serious and in some cases deadly. If it happens to you, can you (successfully) sue under New York law for damages?

It depends.

Unlike in other types of personal injury cases, a person injured by a domestic animal (e.g., a dog) may not proceed on a theory of negligence. Rather, under New York law, they must show that the dog had “vicious propensities” of which the dog’s owner knew or should have known.

As explained by the court in Ostrovsky v Stern, 2015 NY Slip Op 05654 [130 AD3d 596] (App. Div. 2nd Dept. July 1, 2015):

Aside from the limited exception … regarding a farm animal that strays from the place where it is kept … New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal. Thus, [t]o recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog … knew or should have known of such propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.

In the Ostrovsky case, the court held that plaintiff was not entitled to summary judgment because there were “triable issues of fact as to whether the dog displayed vicious propensities prior to the plaintiff’s attack, or if it did, whether the defendant was aware of such propensities.”

It pointed to evidence that (among other things) “prior to the attack on the plaintiff, the dog had never attacked any person or any other dog, and had never acted threateningly toward anyone” and that “although the dog might have barked at times, no one had ever complained to her about the dog or reported to her that they felt threatened by the dog.”

In Rodgers v. Horizons at Monticello LLP, 2015 NY Slip Op 06189 [130 AD3d 1285] (App. Div. 3d Dept. July 16, 2015), the plaintiff sued a landlord after he was attacked and bitten by a tenant’s pit bull while visiting their apartment for a Halloween party.

The court cited the general rule that “[a] landlord may be liable for the attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined.”

Although defendant submitted proof sufficient to satisfy its “threshold burden of demonstrating that [it] had no actual or constructive knowledge of the dog’s vicious propensities”, the plaintiffs came forward with sufficient evidence to overcome summary judgment:

Plaintiffs responded with evidence that included affidavits by plaintiff and two residents of the complex who were familiar with the behavior of the pit bull. Plaintiff averred that he had previously watched the Martins’ eldest son walk the dog, who permitted the dog to chase children and growl, bark and jump against its leash at them. One of the neighbors observed similar behavior when Lisa Martin was walking the dog, and pointed out that Martin kept the dog muzzled during walks. Indeed, the same neighbor was attacked by the dog in the summer of 2012, and only escaped injuries because the dog was muzzled. Both neighbors also stated that the Martins would often tie the dog up near the entrance to their apartment, where it would growl, bark and lunge at individuals who walked by. The neighbors further contradicted the claim of the site manager that he had no awareness of the animal’s vicious propensities, stating that they had repeatedly complained to him about the problem. Given this proof, we agree with Supreme Court that plaintiffs raised triable issues of fact regarding [the dog’s] vicious propensities and defendant[‘s] notice of same.

A contrary example is Smedley v. Ellinwood, 21 A.D.3d 676, 799 N.Y.S.2d 682 (App. Div. 3d Dept. 2005), where the court affirmed summary judgment in favor of defendant landlord in a dog bite case. There, plaintiff’s daughter suffered personal injuries when she was bitten by a pit bull owned by defendant dog owner Lamberty.

Plaintiff alleged that dog owner Lamberty and defendant Ellinwood (the landlord/owner of the premises where Lamberty lived) “had either actual or constructive notice of the dog’s vicious propensities.”

The court held that landlord/owner Ellinwood was properly awarded summary judgment:

In support of his motion for summary judgment, [defendant owner/landlord] Ellinwood submitted proof establishing, inter alia, that he rarely came to the residence, did not know that this particular dog was present at the premises and, additionally, had no knowledge of this dog’s vicious propensities. [Dog owner] Lamberty’s deposition corroborated Ellinwood’s statements. In response, plaintiff maintains that Ellinwood should have had notice of the dog’s propensities inasmuch as Lamberty’s neighbors had such knowledge. Furthermore, plaintiff asserts that the fact that Lamberty placed a “Beware of Dog” sign in her window should have been sufficient to constitute constructive notice to Ellinwood. The fact that others may have been on notice of the dog’s allegedly vicious nature does not establish that Ellinwood, who, at most, visited the premises once a year and received no complaints from the neighbors, was similarly on notice. Additionally, the presence of a “Beware of Dog” sign, standing alone, is insufficient to impute notice of a dog’s viciousness.

The above decisions illustrate that dog bite cases, like all cases, are heavily fact-dependent.

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