If you are bitten by a dog and sue, will you win?
If you are bitten by a dog, can you sue? Many people do.
If you are bitten by a dog and you sue, will you win? It depends.
Here are the facts
Here are the facts from the case in the highest court in New York that, in 2004, set down the law which remains in effect today. Cecil, which was a beagle-collie-rottweiler mixed breed dog and owned by the defendants, was kept as a family pet. The defendants customarily confined Cecil to the kitchen area, behind a gate, when they were away from home and when visitors came, because he would bark. One night, 12 year old Matthew was a guest of the defendants’ son. Matthew had been to the defendants’ home on several previous occasions and on that evening had been upstairs with the son and several other children. When Matthew came downstairs to use the bathroom, the dog began to bark. The defendant placed Cecil on a leash and, when Matthew emerged from the bathroom, the defendant invited Matthew to allow the dog to smell him as the dog knew him from prior visits. As the boy approached, Cecil lunged and bit Matthew’s face. There was no question that the dog’s attack was unprovoked. The parties testified that, to their knowledge, Cecil had never previously threatened or bitten anyone.
So, on those facts, does the 12 year-old plaintiff, victim of an unprovoked attack and who was bitten on his face, win his case? The answer is no. The court wrote that since at least 1816, 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 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. The court continued that once such knowledge is established an owner faces strict liability for the harm the animal causes as a result of those propensities.
In this case the mere fact that Cecil was kept enclosed or chained or that a dog previously barked at people was insufficient to raise a jury question as to whether it had vicious propensities and therefore, the court ruled, the case was properly dismissed. Cecil was kept as a family pet, not a guard dog (the keeping of a dog as a guard dog would give rise to an inference that an owner had knowledge of the dog’s vicious propensities). The uncontroverted testimony was that Cecil was restricted to the kitchen area because he would bark when guests were at the house. There was no evidence that Cecil was confined because the owners feared he would do any harm to the visitors. The court wrote that “the dog’s actions – barking and running around – are consistent with normal canine behavior. Barking and running around are what dogs do.”
Common Law Negligence
To put it another way, New York does not recognize a common law negligence action to recover for injuries and damages caused by a domestic animal. (Negligence is an easier burden for a plaintiff to carry). The only theory is to demonstrate strict liability based upon vicious propensities. The courts have written that to recover upon a theory of strict liability 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 is restrained and a proclivity to act in a way that puts others at risk of harm.
What if a dog is off a leash?
In a case from 2009, the State’s highest court was presented with a plaintiff, this time a postal worker, who observed a 9 year old rottweiler dog lying on the lawn in front of the owners house unleashed. She turned to walk back to her mail delivery truck and as she went, the dog proceeded to run at her and had come to within approximately 6 feet of her. She tried to jump into the mail truck and injured her right middle finger. The dog, according to the testimony of the plaintiff, did not bite or threaten or apparently make any contact whatsoever with the plaintiff. The only injuries sustained was as a result of the plaintiff trying to climb into her mail truck.
In bringing her lawsuit, not only did she allege defendant’s supposed knowledge of the dog’s prior history of vicious propensities but brought a second cause of action for not having the dog on a leash pursuant to New York City Health Code. The particular provision of the code provides that a person who owns, possesses or controls a dog shall not permit it to be in a public place or in an open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than 6 feet long.
The State’s highest court affirmed a dismissal of the entire case noting, again, that an owner’s liability is determined solely by application of 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 (there was no proof of vicious propensities). With reference to the local leash law, any violation of the leash law was irrelevant because such a violation was only some evidence of negligence and negligence is no longer a basis for imposing liability.
Since February, 2004, the case involving Cecil has been the law in New York State. Demonstrating vicious propensities together with knowledge of such propensities is necessary in order to bring a successful dog bite case.
Robert M. Lefland is Senior Counsel with the firm and practices Personal Injury and Appellate Practice. He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.