Chasing Ball Was “Normal Canine Behavior”, Not Evidence of “Vicious Propensities”

In DeCollibus v. Schimmel, 2023 NY Slip Op 00372 (N.Y. App. Div. 1st Dept. Ja. 26, 2023), the court affirmed the lower court’s order dismissing plaintiff’s negligence claim, arising from injuries sustained when defendant’s dog (Lola) chased a ball onto a road in Central Park and collided with plaintiff while she was riding her bike.

From the decision:

An owner is liable for the harm a domestic animal causes if the owner knew or should have known of its vicious propensities (see Collier v Zambito, 1 NY3d 444, 446 [2004]). Vicious propensities include any act that might endanger the safety of others and includes nondangerous proclivity but only if such proclivity results in the injury claimed (id. at 446-447; Scavetta, 149 AD3d at 206). Here, the record is devoid of any evidence that defendant knew or should have known that Lola had a propensity to enter roadways, chase cyclists, or otherwise interfere with traffic (see Smith v Reilly, 17 NY3d 895, 896 [2011] [finding no issue of fact existed where defendant testified the dog had never chased cars, bicycles, or pedestrians, or otherwise interfered with traffic]).

Plaintiff failed to raise an issue of fact in opposition, since Lola’s history of barking at other dogs, pulling on her leash, inability to follow commands when distracted, and “stalking” other animals, are not behaviors that would put defendant on notice that Lola would collide with a cyclist during a game of fetch. A dog chasing a ball during a game of fetch is consistent with normal canine behavior.

So, in sum, while Lola’s prior behavior might very well render her a “bad dog,” it did not support a finding that she had “vicious propensities” sufficient to support a liability claim.

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