For nearly 200 years, the law of New York 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 responsible for any harm the animal causes as a result of those propensities. See e.g. Vrooman v Lawyer, 13 Johns 339 [1816]; Hosmer v Carney, 228 NY 73, 75 [1920]; see also, Agriculture & Markets Law, Section 121, Subdivision 10. Significantly, the owner will be held strictly liable for the damages caused by the animal. Collier v. Zambito, 1 NY3d 444 (Ct of Appeals 2004).
This rule was confimed recently by the Court of Appeals in Petrone v. McCloy, 2009 NY Slip Opinion 04694, Decided June 9, 2009: “[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier– . . . i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities (see Collier, 1 NY3d at 446-447).
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” (Dickson v McCoy, 39 NY 400, 403 [1868]). The burden, of course, will be upon the plaintiff to establish that the defendant owner of the dog knew or should have known of the animal’s vicious propensities. But, importantly, the dog IS NOT given “one free bite” as the law of our state is frequently mistook. As the Court of Appeals has acknowledged in Collier v. Zambito:
“Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice (see Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223, 225 [1897] . . . 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 (see Hahnke v Friederich, 140 NY 224, 226 [1893]; see also Rider v White, 65 NY 54, 55-56 [1875]). 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. See, Hahnke, 140 NY at 227 . . . Finally, plaintiffs are not unduly burdened by the requirement of proof that a defendant know or should know of an animal’s vicious propensities. Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities (see Strunk v Zoltanski, 62 NY2d 572, 575-576 [1984]). This disposition does not entitle dog owners to an automatic ‘one free bite.’ There could certainly be circumstances where, although a dog has not yet bitten a person, its vicious nature is apparent. In that situation, the owner’s success in keeping the dog confined or restrained in the past would not insulate the owner from liability.”
Thus, “a vicious propensity is not limited to a bite or other attack, but ‘includes a propensity to act in a manner that may endanger the safety of another, whether playful or not.” Provorse v Curtis, 288 AD2d 832; Mitura v Roy, 174 AD2d 1020; Anderson v Carduner, 279 AD2d 369, 369-370); Marquardt v Milewski, 288 AD2d 928, 732 NYS2d 801. (Any ‘known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act.’).
As such, there is a growing body of case law which has permitted plaintiffs to establish a dog’s “vicious propensity” without an actual showing of a prior attack by the animal. See, e.g., Anderson v Carduner, 279 AD2d 369, 720 NYS2d 18 (dog’s tendency to jump up and greet people causes risk of injury); Moriano v Schmidt, 133 AD2d 72, 518 NYS2d 416 (dog growling and pulling at chain); Fontecchio v Esposito, 108 AD2d 780, 485 NYS2d 113 (dog’s tendency to bite, snap, bark and bare teeth); Lagoda v Dorr, 28 AD2d 208, 284 NYS2d 130 (dog’s tendency to jump up on people). Further, the damages recoverable from a strictly liable owner are not limited to those suffered as a result of direct contact with the animal. see Pollard v United Parcel Service, 302 AD2d 884, 754 NYS2d 473 (plaintiff who escaped the bite of the defendant’s dog may recover damages sustained as a result of being struck by a motor vehicle while attempting to evade the dog).
Very often, cases without a prior bite will turn on the specific facts related to the dog in question and the manner in which it was handled by the owner. The jury may consider whether the owner chose to restrain the animal and the manner in which the animal was restrained, see Brice v Bauer, 108 NY 428; Morse v Colombo, 8 AD3d 808; or that “Beware of Dog” signs were posted, Parente v Chavez, supra; Shaw v Burgesss, 303 AD2d 857, 756 NYS 2d; Arcara v Whytas, 219 AD2d 871; But, see, Altmann vs Emigrant Savings Bank, 249 AD2d 67, 68 (First Dep’t 1998) (Presence of “Beware of Dog” signs standing alone are not enough to imply that dog owner knew of his dog’s vicious propensities); Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997); Arcara v.Whytas, 219 AD2d 871, 872 (Fourth Dep’t 1995). The fact that a dog was chained and strained on its chain and barked when people approached was held insufficient to create an inference that the dog was vicious. Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).
IF a defendant can establish that his dog has not previously exhibited any vicious propensity, he may be entitled to summary judgment. Arcara, 219 AD2d at 871, 872 (undisputed proof that dog had never bitten anyone before and had never bared its teeth or growled at anyone before entitled summary judgment). If the defendant moves for summary judgment and introduces admissible evidence that he had no knowledge of the dog’s vicious propensities, the burden shifts to plaintiff to submit rebuttal evidence of risk having his complaint dismissed. Althoff v. Lefebvre, 240 AD2d 604 (Second Dep’t 1997). If there is conflicting evidence as to the dog’s vicious propensities, the issue must be given to a jury to decide. Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997).
As for damages, a plaintiff may recover for all out-of-pocket costs, medical costs, lost wages, pain and suffering and even Punitive Damages in certain circumstance. See, e.g., Nardi v. Gonzalez, 165 Misc.2d 336, 339 (1995). Given the vicious nature of an animal attack and the physical as well as psychological injuries it can wreak, the damages in such cases may be very significant. IF the dog owner had knowledge that his dog presented a risk, or if he should have known based upon prior actions of the dog, he or she will be strictly liable for all the damages caused.