United States: "Dogfight" In The Court Of Appeals

You may have noticed that I am inexplicably captivated and fascinated by the constant stream of trial court proceedings and appeals involving cats, dogs and other animals.  [See, The Bark Goes On (2/2/14); and Legal "Horse" And Other Tales (2/1/15)].

In recent months there has been an outburst of decisions relating to animals from both the Court of Appeals and several Appellate Divisions:

Doeer v. Goldsmith, 2015 NY Slip Op 04752 (Court of Appeals) [decided on June 9, 2015] was a summary (four-judge) decision with a three-judge concurring opinion and two dissents (by three judges).

Doeer was the fourth time in recent years that the Court of Appeals has addressed the duty of care with respect to pets and animals.

Summarizing the three prior decisions:

In Collier v. Zambito, 2004 NY Slip Op 00960 [1 NY3d 444] [decided on February 17, 2004], the Court of Appeals held that:

For at least 188 years..., the law of this state has been that the 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....Vicious propensities include the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation"[.]

Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice...In addition, a triable issue of fact as to knowledge of a dog's vicious propensities might be raised—even in the absence of proof that the dog had actually bitten someone—by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained...The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog's vicious propensities[.]

In addition, 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—albeit only when such proclivity results in the injury giving rise to the lawsuit. But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether it had vicious propensities.

In Bard v. Jahnke, 2006 NY Slip Op 03440 [6 NY3d 592], [decided on May 2, 2006], the Court of Appeals expanded upon Collier:

[A]n animal's propensity to cause injury may be proven by something other than prior comparably vicious acts. As a result, a common shorthand name for our traditional rule—the "one-bite rule"—is a misnomer. We have never, however, held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, we have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class. We decline to do so now, or otherwise to dilute our traditional rule under the guise of a companion common-law cause of action for negligence. In sum, when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier.

And, in Hastings v. Sauve, 2013 NY Slip Op 03120 [21NY3d 122], [decided on May 2, 2013], the Court of Appeals held that "the rule of Bard v. Jahnke (6 NY3d 592 [2006]) does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept."

This case...does not involve aggressive or threatening behavior by any animal. The claim here is fundamentally distinct from the claim made in Bard and similar cases: It is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard that "when harm is caused by a domestic animal, its owner's liability is determined solely" by the vicious propensity rule...in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal...is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.

Reverting to Doeer, in a single-page memorandum, the majority summarily held that:

Under the circumstances of these cases and in light of the arguments advanced by the parties, [Bard] constrains us to reject plaintiffs' negligence causes of action against defendants arising from injuries caused by defendants' dogs...Furthermore, our holding in Hastings v Sauve (21 NY3d 122 [2013]) does not allow plaintiffs to recover based on defendants' purported negligence in the handling of their dogs, which were not domestic farm animals subject to an owner's duty to prevent such animals from wandering unsupervised off the farm[.]

[T]he Appellate Division properly granted summary judgment to defendants with respect to plaintiff's strict liability cause of action. Defendants carried their initial burden on summary judgment of establishing that they did not know of any vicious propensities on the part of their dogs. In response, plaintiff failed to demonstrate the existence of a triable issue of fact as to whether defendants had notice of the animals' harmful proclivities, and consequently, defendants were entitled to summary judgment on plaintiff's strict liability claim[.]

In a 21-page concurring opinion, Judge Abdus-Salaam concluded that:

In these two cases, we consider whether an individual injured by a domestic animal other than a farm animal may institute a negligence cause of action against the owner of the animal based on the owner's alleged misfeasance in supervising or directing the animal. Like the majority...I conclude that a negligence cause of action does not lie under our longstanding precedent, and I reject the specific grounds advanced by plaintiffs here for declining to apply the controlling principles of law set forth in [Bard]. Therefore, I join the majority's opinion in full. I write separately to provide additional background on these cases, suggest further guidance for future cases, and respond to the particular contentions of the plaintiffs and my dissenting colleagues.

Noting that:

Acknowledging that Bard and its progeny would otherwise preclude them from bringing negligence causes of action against defendants in these cases based on the injuries caused by defendants' animals, plaintiffs in the cases at bar propose two potential bases on which they might avoid Bard's prohibition against negligence liability. Plaintiffs' theories are: (1) our holding in Hastings logically extends to cover domestic pets, such that the failure to properly restrain a dog or confine it on the owner's property may create negligence liability; and (2) defendants' affirmative negligent acts in using their dogs as instrumentalities of harm created negligence liability because, unlike in Bard and similar cases involving animals instinctively harming others without the direct control of their owners, such affirmative acts constitute the negligence of the owners rather than of their pets. In their briefs, plaintiffs do not ask us to overrule Bard, though they complain about some of its purported shortcomings[.]

Discussing Hastings and Bard:

Contrary to plaintiffs' suggestion, our decision to impose liability on the owner of a farm animal in Hastings, based on the owner's failure to keep the animal from wandering off his or her property, does not logically create a negligence cause of action for the failure to restrain a dog on one's premises or in other locations. As we noted in Hastings itself, there is a "fundamental[ ] distinct[ion]"...between a domestic animal owner's failure to prevent his or her animal from behaving dangerously, which is generally not an actionable form of negligence, and a farm owner's decision to allow his or her farm animals to wander freely onto a public road or someone else's property, which as a commonsense matter violates societal expectations in a manner that gives rise to negligence liability. And, Hastings's treatment of the failure to keep farm animals on the owner's property as distinct from the negligent supervision of other types of domestic animals makes sense. In that regard, domestic farm animals — horses, cows, goats, sheep, swine, ducks and the like...— either are difficult to train to remain on one's premises of their own accord (e.g., cows, goats, sheep, fowl), have a proclivity to bolt without confinement (e.g., horses) or have a particularly hazardous combination of a large size and a habit of extremely aggressive behavior related to establishing dominance with respect to humans and other animals (e.g., bulls, pigs). In recognition of the unique peril that arises from allowing farm animals to wander off a farm unsupervised and unconfined, the Legislature requires such animals, by statutory definition, to be "raised in confinement" and under state license[.]

In other words, in New York, society has long recognized that the owners of farm animals have a duty to exercise reasonable care in keeping such exceptionally dangerous or errant creatures on the owners' premises, and in Hastings, we recognized that duty in holding the defendant farm owner liable for his negligent failure to confine his cow on his property. Indeed, it is a matter of common expectation among people in general that a 1,500-pound cow, a 400-pound pig or an unruly goat will not be permitted to wander freely into traffic or onto a neighbor's yard, mangling people and property alike.

By contrast, the ownership of most domesticated non-farm animals does not naturally necessitate such a duty of care and restraint on the part of their owners because non-farm animals pose different risks than farm animals. Domestic pets are more apt to stay on their owners' premises of their own volition as a result of the domestication and training that have been reinforced over the centuries of humanity's near-familial relationship with its pets. And, few lawfully kept domestic animals reach the levels of size, aggressiveness and desire to wander that many farm animals do.

Furthermore, at least since our decision in Bard, New York society has had no reasonable expectation that all domestic pets will be perpetually confined in their homes or physically restrained at all times. Pet owners often take their pets to public places in close proximity to other people, both on leashes and off of them depending on the location, and the people in those areas have come to expect this phenomenon and to approach such situations with caution. The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner's premises and may harm others depending on the disposition of the pet and the degree of training it has received. In public parks, one regularly encounters dog owners with their unrestrained canine companions, whereas one almost never sees, and certainly never expects to see, someone taking his or her cow for a walk in the neighborhood. As Bard effectively holds, New York society has learned to adequately mitigate the perils of unrestrained pets by a combination of strict liability, statutory regulation and the prudence of those who approach these animals, without adopting a negligence cause of action based on the failure to supervise or restrain a domestic pet. Given the clear differences in the risks posed by farm animals and pets, there is no reason to extend the rule of Hastingsto authorize negligence liability resulting from faulty supervision of a pet.

More fundamentally, plaintiffs' proposed expansion of liability under Hastingswould run directly counter to our precedents, including Petrone and Smith. After all, in Petrone we rejected a claim that negligence should lie where a dog owner allowed his dog to stray from his property and chase a mail carrier...And inSmith, we concluded that a dog owner's failure to restrain her dog from running into the street and hitting a bicyclist did not give rise to a negligence cause of action...An extension of Hastings would clearly contradict those decisions because, under Hastings, the owner of a farm animal may be held liable for his or her negligence in permitting an animal to wander unrestrained and injure people, whereas in Petrone and Smith, we concluded that the defendants were relieved of negligence liability for engaging in essentially the same behavior with respect to their dogs, which were permitted to roam about and harm others. Rather than extending Hastings to create an inherent contradiction in our case law, I choose to harmonize PetroneSmith and  Hastings by finding that the Hastings rule is limited to cases involving farm animals. Thus, as the majority observes...theHastings rule does not render defendants liable in the instant cases, both of which involve claims of negligence in the handling of domestic pets rather than the failure to keep farm animals from wandering off the farm.

Adding that:

Stated differently, neither the calling of a dog across the road nor the release of a dog near the road can cause injury without the volitional conduct of the dog, thereby making the two actions comparable for purposes of negligence law. Where the owner calls the dog across the road, the dog still will not cross the road and into the path of a bicyclist without instinctively and willfully choosing to do so. If the dog ignores the owner's call, as dogs are sometimes wont to do, no injury occurs. Likewise, if a dog is released from restraint at the side of a road, the dog may instinctively choose to wander into the way of a cyclist, to do nothing, or to wander away from the road, but only its choice, rather than the owner's act of releasing it from its bonds, will result in any injury. In both scenarios, then, the dog's volitional behavior ultimately creates the harm, and the owner's act or omission does not cause the injury.

As to the distinctions proffered by plaintiffs:

Not only does plaintiffs' proposed distinction between an omission of restraint and an act of control defy the practical realities of pet behavior, but it is also inconsistent with basic negligence principles. In that regard, the existence of liability for negligence generally does not depend on whether the negligent conduct of the tortfeasor is deemed an act or an omission, but rather on whether the individual violates a common-law duty to exercise reasonable care to prevent certain harms...Because Bard does not impose a duty on a pet owner to exercise reasonable care in the control of a pet that has no known vicious propensity, the owner's failure to exercise such care, whether by act or omission, does not furnish a basis for liability. It is presumably for this reason that we have never drawn the illusory act/omission distinction now urged by plaintiffs[.]

And reverting to Bard:

Abandoning or eroding Bard's bright line rule would harm pet owners and alter societal expectations. Pet owners and their insurers are currently entitled to rely on the Bard rule to plan their future conduct and their insurance needs, and changing the rule now would risk unfairly disrupting their expectations. Additionally, if Bard were overruled and negligence suits were permitted to proceed against pet owners, a violation of a local leash law may be proof of a pet owner's negligent failure to control his or her pet, and thus negligence suits might create a de facto private cause of action under local leash laws, effectively ignoring the will of any local legislature that has decided not to provide for such actions. While I acknowledge that out-of-state courts that have addressed the issue have nearly uniformly recognized a negligence cause of action arising from the handling of all domestic animals, the same was true at the time Bard was decided...,and that is not a sufficient reason to overrule our longstanding and recently reaffirmed precedent.

Chief Judge Lippman dissented in one case and concurred in the other:

I would continue to adhere to the vicious propensities rule where it appropriately applies, which would appear to be the great majority of cases involving injuries caused by domestic animals. Indeed, as noted above, we have reaffirmed that holding several times in the recent past. The rule reflects a policy decision that a pet owner is not required to anticipate and take steps to prevent aberrational, dangerous behavior from an apparently benign animal. For example, an owner will not be liable the first time a rambunctious dog welcoming a guest knocks him down the steps. Thus, in Dobinski, the absence of evidence that the defendants were aware their dogs had a penchant for running into the road dooms the plaintiff's case.

The situation presented by Doerr, however, is distinct. Defendant did in fact control her dog, but allegedly was negligent in directing it into the path of the oncoming bicycle. The concurring opinion emphasizes a dog's "volitional behavior"...and I think we can all agree that a dog is not analogous to an inanimate object, as it has agency of its own. But people expend significant amounts of time and effort, and sometimes go to great expense, in an effort to train their dogs to be obedient. When those efforts are successful and the dog acts according to the owner's command, that is not a vicious propensity, but should not necessarily result in the owner's immunity from liability. As we recognized in Hastings, the vicious propensity rule does not cover every situation. By contrast to the above example of nonactionable canine greeting, were the owner to throw a ball towards the steps as the guest ascends and the dog's inevitable chase propels the guest downward, it is clear to me that the owner's far greater culpability in the latter disaster should compel the availability of a recovery in negligence. I would place Doerr squarely in that category as well.

Stating that:

I would hold that, where a plaintiff sustains injury as the direct result of actions that a domestic animal took under the owner's direction and control, a cause of action in negligence should lie. An exception to the vicious propensities rule is warranted under these circumstances. Indeed, a contrary rule automatically immunizing animal owners from the consequences of their own directions is too broad brush, as this situation is plainly distinguishable from our existing vicious propensities jurisprudence and contradicts any sensible logic.

Judge Fahey dissented in both cases because:

[T]he Court now reasserts Bard, and declines to extend Hastings, despite the striking similarities between Hastings and one of the cases before us, Dobinski v. Lockhart. In my view, Dobinski raises the same question whether "a landowner or the owner of an animal may be liable under ordinary tort-law principles" when his animal, usually kept on his farm, "is negligently allowed to stray from the property on which the animal is kept"...In Dobinski, just as in Hastings, to invokeBard's restrictive rule is "to immunize defendants who take little or no care to keep their [animals] out of the roadway"...Applying Bard gives dog owners no incentive under the tort law to exercise reasonable and cost-effective care over their animals so as to prevent the risk of accidents such as what occurred to plaintiff Dobinski in Franklinville.

The concurring opinion [of Judge Abdus-Salaam] now supplies, for the first time, some discussion of the policy considerations missing from Bard and its immediate progeny, opining that "[a]bsent awareness of a domestic animal's previously demonstrated tendency to harm others, the owner should not bear the costs of the animal's instinctive decisions"[.] This reasoning loses sight of the fact that it is the owners of domestic animals, and only their owners, who have the "expertise and opportunity to foresee and control hazards, and to guard properly against their own negligence and that of their agents and employees"[.] This is as true of the owners of dogs as it is of those who own horses and other farm animals. Fundamentally, just as "a farm owner's decision to allow his or her farm animals to wander freely onto a public road or someone else's property...as a commonsense matter violates societal expectations in a manner that gives rise to negligence liability"...so his or her decision to allow dogs to wander freely onto a public road should give rise to negligence liability. There is no logical difference. Certainly dogs are less "difficult to train to remain on one's premises of their own accord"...than farm animals, which typically must be fenced in, but that only spotlights the nature of the negligence of one who fails to train his or her dogs not to stray.

The concurring opinion argues that "[t]he average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner's premises and may harm others depending on the disposition of the pet and the degree of training it has received"...Perhaps this is a reference to an encounter such as occurred to plaintiff Doerr in Central Park, where the pet that caused injury was in the company of its owner. It is certainly not true, either in Franklinville or in Manhattan, that the average citizen expects to encounter unrestrained and unaccompanied dogs, running loose among traffic, that may either keep to themselves or else "harm others depending on...disposition...and...training"...The ubiquity of "ordinance[s] restricting dogs from running at large...suggest[s] that, whatever may have been the expectation in an earlier, more agricultural age, it is no longer expected that dogs will roam the highways of this State at will"[.]

I would adopt the Restatement doctrine: that even if the owner of a domestic animal has no reason to believe the animal abnormally dangerous, the owner will still be subject to liability for harm done by the animal if he or she is negligent in failing to prevent that harm. This is a clear, reasonable and equitable rule that reflects the law in most states and corresponds to the majority position in New York before Bard.

Matthew H. v. County of Nassau, 2015 NY Slip Op 05157, Second Department (decided on June 17, 2015)

The issue on appeal was "whether cotenants in leased premises can be held strictly liable for a vicious attack by dogs owned solely by another cotenant"[.]

The Appellate Division summarized the facts:

On April 28, 2006, at approximately 2:00 p.m., the then four-year-old infant plaintiff was seriously injured when he was attacked by three dogs, a female rottweiler named Jasmine, a male rottweiler named Bishop, and an English bulldog named Duke, owned by the defendant Lawrence Kelly, Jr. The incident occurred near premises located in East Meadow which Kelly, a college student, was renting, along with the defendants Dionisios Georgatos, Christopher Scheck, and Jezel Yepez...from the defendant Lawrence Etkind.

The subject property had a fenced-in backyard, and the dogs were allowed to roam freely in the backyard. On the date of the incident, the dogs escaped from the subject property and were roaming the neighborhood unattended. The housemates were aware that some of the dogs had previously escaped the property. None of the housemates knew how the dogs got loose.

The infant plaintiff had been riding his tricycle on the sidewalk outside of his own home, which was near the subject property, when the attack occurred. At the time, he was with his paternal grandparents and 14-month-old sister, who was in her stroller. The plaintiffs allege that the dogs attacked the infant plaintiff in front of the house, then continued the attack as they pursued the infant plaintiff and his grandfather into the backyard of the plaintiffs' home. One of the rottweilers then followed the infant plaintiff and his mother into the kitchen of the house and continued the attack there. The attack only ended when the infant plaintiff's grandfather was able to chase the dog from the home. The infant plaintiff was taken to Nassau University Medical Center, where he was admitted and treated for his injuries.

The pertinent deposition testimony:

At his deposition, Kelly acknowledged sole ownership of the rottweilers and the bulldog. He testified that on January 19, 2004, at a prior leasehold, Jasmine, and another rottweiler belonging to a cotenant who did not reside in the subject premises, attacked and killed a neighbor's pet rabbit. In a proceeding commenced pursuant to Agriculture and Markets Law former § 121, now § 123, in the District Court of Nassau County, Kelly stipulated that Jasmine was dangerous and that he would keep her "permanently and securely confine[d]."He was required to keep Jasmine in a cage when she was unattended and, when he walked her, she had to be on a leash and muzzled. The stipulation was executed by Kelly, the rabbit's owner, and a representative of the Town on January 29, 2004.

When Kelly moved to the subject property in August 2004, he did not bring the muzzle for Jasmine, since the dog did not like it and Kelly did not think she needed it. However, he did erect additional fencing in the backyard so that it was enclosed. After moving to the subject property, Kelly bought Bishop and then Duke.

Kelly testified that the dogs were allowed to roam freely within the confines of the backyard. He testified that, when the dogs were in the backyard, "normally there was supervision." However, he did not indicate that he was the only individual who supervised the dogs. Although he was the dogs' owner, which made him primarily responsible for feeding the dogs and letting them out, when he was not available, he would ask one of his housemates to perform those tasks.

Kelly learned that the dogs got loose from the subject property on the date of the incident when he was awakened by one of his housemates. He knew that the dogs had gotten out on prior occasions and had to be returned to the house. He had no idea how they got loose from the property on the date of the incident since he had been sleeping.

Scheck testified at his deposition that he lived at the subject property from August 2005 to August 2006. At the time he signed the lease, which contained a provision prohibiting dogs from being kept on the leased premises, Jasmine and Bishop were already living there. After he moved in, Kelly bought Duke. While Scheck thought the dogs were nice and he interacted well with them, he was aware that one of the rottweilers had killed a pet rabbit. However, he was unaware of the stipulation that Jasmine had to be muzzled or caged.

Scheck stated at his deposition that Kelly was primarily responsible for the dogs; however, if Kelly "had something going on," one of the housemates would feed the dogs, clean up after them, and put them in their cages. They would also let the dogs out into the backyard. He was aware that, on a few occasions, the dogs had "let themselves out into the backyard" by pushing on the back door until it opened. Nevertheless, no one took any steps to secure the back door. Scheck was also aware that, at least once, the dogs had "gotten loose from the yard and...roam[ed] in the neighborhood." He specifically remembered one prior incident in which Bishop had gotten loose from the backyard and roamed the neighborhood. Only if no one was home would the dogs be put in their cages in the kitchen.

Scheck did not know how the dogs got out the day of the subject incident. He was out all night the night before the attack, and he had seen the dogs roaming around the house that morning, when he returned home sometime between 8:00 a.m. and 9:00 a.m. He let them out of the house and into the backyard when he got home, took a shower, and then let the dogs back in the house before he went to bed.

Georgatos testified at his deposition that he resided at the subject property from May 2005 to April 2006. When he moved in, Kelly already owned the two rottweilers. Georgatos testified that he had observed the dogs in the backyard running loose. "Most of the time," someone watched them. He claimed that he "didn't really deal with the animals." However, he admitted that he let the dogs out "once or twice," at Kelly's direction. He testified that the dogs were allowed to walk freely about the house, even when Kelly was not home. When Kelly slept at night, they would be in Kelly's room. At one time there was a cage for the dogs, but at some point Kelly got rid of it.

Georgatos learned of Jasmine's 2004 attack on the pet rabbit on the day of the attack on the infant plaintiff. He was not aware of the dangerous dog proceeding or the requirement that Jasmine be confined. He was aware that Bishop had gotten loose prior to the date of the incident.

Georgatos did not know how the dogs got out on the date of the incident. He was home the entire day sleeping. He did not notice that at some point the dogs were not in the house.

The arguments upon the cross-motions for summary judgment:

Scheck and Georgatos separately moved, inter alia, for summary judgment dismissing the cause of action sounding in strict liability insofar as asserted against each of them.

Scheck argued that he did not own or harbor the dogs and, thus, did not owe a duty to the plaintiffs. He contended that Kelly was solely responsible for the dogs. Further, he asserted that there was no evidence to demonstrate that he had knowledge that any of the dogs had dangerous propensities.

In support of his motion, Scheck presented, inter alia, the lease for the subject property and the transcripts of his deposition testimony and the deposition testimony of Kelly and Georgatos. He also submitted an affidavit in support of the motion in which he averred that while he, on rare occasions, fed the dogs and let them out into the back yard, "at no time did [he] ever allow the dogs to roam free in the neighborhood." Scheck claimed that he never noticed the dogs "attack, bite, growl, snarl or jump up on any individuals in the house or in the neighborhood," although he acknowledged that he was aware of the incident with the pet rabbit.

Georgatos argued that he did not own the subject property, have any control over it, or any responsibilities with respect to the maintenance of it; he just leased a room on the premises. He also contended that he played no role whatsoever in the dogs' escape from the property on the date of the incident, as he was asleep the entire day until the incident occurred.

Like Scheck, Georgatos also argued that he did not own or harbor the dogs. He pointed out that Kelly had already been living at the subject property with Jasmine and Bishop when he moved in, and thus he did not shelter those dogs since he had no say as to whether they would live at the property. With respect to Duke, who was purchased after Georgatos moved into the subject property, he claimed that there was no evidence that he had any control over whether Kelly purchased the dog and kept it at the residence. He contended that, even if he occasionally fed or let the dogs out when Kelly was not home, he never assumed any responsibility for the dogs on a regular basis.

Moreover, Georgatos asserted that he did not have knowledge that any of the dogs had vicious propensities. He noted that he only became aware of Jasmine's attack on the pet rabbit on the date of the subject incident.

In support of his motion, Georgatos submitted exhibits including the transcripts of his deposition testimony and the deposition testimony of Kelly and Scheck. He also provided a copy of the lease for the subject property.

In opposition to the motions of Scheck and Georgatos, the plaintiffs argued that Scheck and Georgatos failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law and, in any event, that triable issues of fact existed as to whether they harbored the dogs. The plaintiffs maintained that, since Scheck and Georgatos admitted to feeding the dogs, cleaning up after them, putting them in their cages, and letting them out into the yard, Scheck and Georgatos harbored the dogs. The plaintiffs also argued that by virtue of the viciousness of the attack, the fact that they lived with the dogs for eight months, and Scheck's awareness of the pet rabbit incident, Scheck and Georgatos knew or should have known that the dogs had vicious propensities.

Further, the plaintiffs submitted photographs of the extensive injuries and scarring the injured plaintiff sustained. In addition, they provided an affidavit of Ernest Zeigler, a Village of Rockville Centre police officer who lived on the same street as the subject property, who attested that several times in the six months before the subject incident the dogs had been "loose and at large" in the neighborhood. Zeigler recalled that, on one such occasion, one of the rottweilers entered a school bus.

The plaintiffs also included an affidavit from Karin Kalin, whose former residence abutted the subject property. Kalin recalled that there was a hole in the fence surrounding the subject property which enabled the dogs to escape into the neighborhood.

The decision of Supreme Court:

Applying the rule that "[a] person who harbors or keeps a dog with knowledge of the dog's vicious propensities is liable for injuries caused by the dog," the Supreme Court found that Kelly's admission that the dogs belonged to him and were his responsibility was sufficient to establish, prima facie, that Scheck and Georgatos were entitled to judgment as a matter of law. Moreover, the court reasoned that the fact that Scheck and Georgatos occasionally cared for the dogs as a favor to their friend Kelly when he was not home was insufficient to raise a triable issue of fact as to whether they harbored the dogs.

The applicable law:

Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by the animal...Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensity...However, no liability can be found against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises[.]

Here, to establish their prima facie entitlement to judgment dismissing the strict liability cause of action, Scheck and Georgatos were required to demonstrate, as a matter of law, (1) that they did not harbor, or exercise dominion and control over the dogs, and (2) that they were not aware, nor should they have been aware, of the vicious propensities of the dogs[.]

An owner's strict liability for damages arising from the vicious propensities and vicious acts of a dog "extends to a person who harbors the animal although not its owner"...Liability can be established where the defendant "owned, possessed, harbored, or exercised dominion and control over the dog"..."It is not material in actions of this character whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he [or she] keeps the dog; and...harboring a dog about one's premises, or allowing it to be or resort there, is a sufficient keeping to support the action"[.]

Here, it cannot be said, as a matter of law, that Scheck and Georgatos did not harbor the dogs. Although the term "harboring" lacks a clear singular definition, one harbors a dog by "making it a part of his [or her] household," even if he or she does not assume control over the animal...Thus, while the occasional presence of a dog in a premises does not rise to the level of harboring...where a dog is kept within a home on a consistent enough basis to become part of a household, it can be found that those who do not own the dog, but allow it to reside there and participate in its care, are harboring the dog.

And applied the law to the facts:

Applying these principles to the case at bar, we find that Scheck and Georgatos failed to establish, prima facie, that they did not harbor the dogs. Although they did not own or have primary responsibility for the dogs, both Scheck and Georgatos acknowledged that they were co-lessees of the premises in which the dogs freely roamed, occasionally cleaned up after them, fed them, and let them out into the yard. Both also acknowledged that the dogs were allowed to roam the house freely even when Kelly was not home, and would only be placed in cages if none of the housemates was at home. Accordingly, a jury could find that Scheck and Georgatos allowed the dogs to become part of their household, and participated in their care to a sufficient degree that they can be considered to have harbored the dogs[.]

Concluding as to vicious propensities that:

"Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation...Once this knowledge is established, the owner or anyone harboring the animal 'faces strict liability'...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"[.].

The owner or harborer of a dog with vicious propensities is not entitled to the benefit of the so-called "one free bite" rule...Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent[.]

Knowledge of an animal's vicious propensities may also be discerned, by a jury, from the nature and result of the attack...Here, given the intensity and ferocity of the attack on the infant plaintiff, Scheck and Georgatos failed to eliminate all triable issues of fact as to whether they knew or should have known of the vicious propensities of the dogs...Indeed, the evidence proffered by Scheck demonstrates that he knew of Jasmine's prior attack on a pet rabbit.

Vallejo v. Ebert, 2014 NY Slip Op 62760(U), 120 A.D.3d 979, Second Department (decided on August 27, 2014)

In this action to recover damages for personal injuries, the Second Department summarily held that:

To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities...Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm[.]

Here, the defendant established her prima facie entitlement to judgment as a matter of law...Evidence submitted in support of the motion, including a transcript of the deposition testimony of the defendant, showed that the dog had been living with the defendant's family, which included a small child, without incident, for approximately four or five years before it bit the plaintiff. Prior to the incident, the defendant had not seen the dog exhibit aggressive behavior. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant was aware, or should have been aware, that her dog had vicious propensities...The mere presence of a "Beware of Dog" sign on the defendant's property, and the fact that the dog might have been confined when there was a celebration at the premises, were insufficient to raise a triable issue of fact[.]

To the extent that the complaint alleged a common-law negligence cause of action, the Supreme Court properly awarded summary judgment to the defendant dismissing the cause of action because "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal"[.]

Henry v. Higgins, 2014 NY Slip Op 03484, 117 A.D.3d 796, Second Department (decided on May 14, 2014)

In this action to recover damages for personal injuries, the Second Department summarily held that:

"To 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"..."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, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm"[.]

The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff's, that they "were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior"...Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident[.]

Rodgers v. Horizons At Monticello, LLP, 2015 NY Slip Op 06189, Third Department (decided on July 16, 2015)

The Third Department summarized the facts:

On October 31, 2012, plaintiff Darius Rodgers...was attending a Halloween party at an apartment complex owned by defendant. Lisa Martin and Leon Martin were the parents of one of plaintiff's friends, and the Martins lived at the complex with their pit bull. Plaintiff was attacked and bitten by the dog when he stopped by the Martins' apartment.

The prior proceedings:

Plaintiff and his mother, plaintiff Jennifer McCoy, commenced this negligence action to recover damages stemming from the attack. Defendant, in turn, commenced a third-party action against the Martins for contribution. Following service of its answer and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court, among other things, found that questions of fact precluded a grant of summary judgment to defendant[.]

The applicable law:

"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"[.]

Defendant's position:

Defendant was empowered to require the Martins to remove the animal and, indeed, its site manager testified that he took steps to do so once he learned of the dog's existence in September 2012. The site manager also testified that he was unaware of any complaints regarding the dog, and that he only endeavored to have it removed because tenants were not allowed to own large dogs such as pit bulls. McCoy herself gave deposition testimony in which she acknowledged that she did not know of any prior incidents where the dog had attempted to bite someone. The foregoing proof was "sufficient to satisfy defendant's threshold burden of demonstrating that [it] had no actual or constructive knowledge of the dog's vicious propensities, thereby shifting the burden to plaintiff[s] to come forward with evidence in admissible form demonstrating a triable issue of fact"[.]

Plaintiff's response:

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"[.]

Defendant's rebuttal:

Defendant further asserts that, if it had actual or constructive notice of the dog's vicious propensities, it did not have a reasonable time in which to correct the problem before the attack at issue. Plaintiffs submitted evidence suggesting that defendant became aware of the dog over a year before the attack occurred but, even assuming without deciding that such evidence could not be considered, the site manager admitted that he was aware of the dog two months before the attack. That awareness prompted the site manager to notify the Martins that they must rid themselves of the dog, as well as to refer the matter to counsel so that eviction proceedings could be commenced. He acknowledged that counsel worked "very slowly" on eviction matters, however, and that counsel's lethargic approach ultimately required defendant to retain new counsel.

And the question of fact to be resolved at trial:

The site manager also easily could have, but did not, contact the Martins and encourage them to take "reasonable precautions for the protection of third persons...with respect to confinement or control of the dog"...Thus, assuming that defendant had actual or constructive notice of the dog's vicious propensities, questions of fact exist as to whether it had notice of the problem "for such a period of time that, in the exercise of reasonable care, it should have been corrected"[.]

Would Matthew H., Vallejo  and Henry now be decided differently?  Has Doeersettled the law with respect to the liability of pet owners?  "Stay tuned."

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