100+ Pound Bullmastiff (Dynasty) Knocks Down Woman Walking Chihuahua (Eli)

This was originally published on the SGR Blog.

Were Dynasty’s Owners Liable for Ensuing Injury?

Cathy Orisini sought to recover damages for injuries allegedly sustained on February 14, 2017, when she was knocked down by a dog harbored by Woodrow Cromarty and Danielle Grunert outside their home on Columbus Avenue in West Babylon, New York. Orsini alleged that Cromarty/Grunert were negligent in failing to secure and allowing the dog to attack her, when they knew, or should have known, of the dog’s vicious propensities.

According to her deposition testimony, Orsini was walking her son’s Chihuahua, named Eli, past the property owned by Cromarty on February 14, 2017, when a one-hundred-plus pound Bullmastiff, named Dynasty, allegedly escaped from the fenced yard and knocked her to the ground, causing injury to her head and both wrists.

Cromarty/Grunert moved for summary judgment dismissing the complaint on the basis they had no notice that the dog had vicious propensities. They submitted, in support of the motion, copies of the pleadings, the bill of particulars, and the transcripts of the deposition testimony of Orsini, Cromarty, and Grunert. Orsini opposed the motion, arguing that a triable issue of fact existed as to whether Cromarty and Grunert knew, or should have known, of Dynasty’s alleged vicious propensities. She submitted the bill of particulars, the deposition testimony of herself, Cromarty, and Grunert.

At her deposition, Orsini testified that, on the date of the incident, she was walking her son’s dog on the street of Cromarty/Grunert’s home, when she observed Dynasty barking and jumping up on the fence. She testified that, under the force of Dynasty jumping, the fence came down and Dynasty came out from behind. When she observed Dynasty “trotting” toward her, she turned and began to walk away, at which point Dynasty jumped on her back and knocked her to the ground.

At his deposition, Cromarty testified that Dynasty never bit anyone, or got out of the yard before; no one had ever complained to him about Dynasty’s jumping, and he did not have any signage on the property warning others of Dynasty’s presence. Additionally, he testified that the dog never had any incident with any of the children or employees of the daycare that was operated in his home. He testified that Dynasty “rarely” jumped on anyone, estimating that it happened four or five times, mostly on him and more often when she was smaller.

At her deposition, Grunert testified that, before purchasing the dog, she did extensive research on the breed and chose a Bullmastiff because dogs of that breed were regarded as “gentle giants.” She testified that Dynasty was never involved in any fights; had never bitten or nipped at anyone; didn’t chase anything; never jumped; and was unable to make it down a flight of stairs to the basement. On the day of the incident, the fence enclosing the backyard was not broken or in disrepair and that it had not been broken down. When she came outside after learning that Dynasty had gotten out, she observed Dynasty sitting next to Orsini. She testified that her mother, Irene Shay, offered to drive Orsini home, adding that, during the ride, Orsini stated to Shay that her dog began barking when it saw Dynasty and wrapped its leash around her legs, causing her to trip. Grunert testified that Shay told her that. Orsini also made the same statement to Al Orsini as Shay dropped her off at home.

New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal, Cases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence.

To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities. A plaintiff seeking to recover for damages caused by a dog bite may establish knowledge of vicious propensities with proof of a prior attack. Also relevant to such issue is proof that the dog had a tendency to growl, snap or bare its teeth; the manner in which the dog was restrained; whether the animal was kept as a guard dog; or that the dog had a proclivity to act in a way that put others at risk of harm. A similar act by the dog, such as a prior biting incident, imputes knowledge of vicious propensity,

Cromarty/Grunert established a prima facie entitlement to summary judgment through their submissions that they had no knowledge of Dynasty’s vicious propensities. Cromarty testified that Dynasty never bit anyone, never got out of the yard, never had an incident with the children who were cared for in his home, and she rarely jumped on anyone and that any prior jumping was playful, and occurred when she was a puppy. In her testimony, Grunert described Dynasty as “lazy,” and stated that Dynasty was never involved in fights with other dogs, socialized with people, and never chased anything or jumped.

Accordingly, the burden shifted to Orsini to raise a triable issue of fact as to whether Dynasty had vicious propensities and whether Cromarty/Grunert had knowledge of the dog’s vicious propensities. Orsini offered Woodrow Cromarty’s deposition testimony regarding his observations of Dynasty jumping four or five times in the past. At her deposition, Orsini stated that she had observed Dynasty on previous occasions and that Dynasty was up on the fence, that she was barking, and that she was shaking the fence. Additionally, Orsini submitted an unnotarized affidavit of their son, Eric Orsini, a non-party witness. Eric’s statement alleged that he had seen Dynasty on several occasions and that he had observed her to be loose and unsupervised roaming off Cromarty’s’ property. He also stated that he had observed Dynasty baring her teeth, growling viciously, jumping up on the fence and barking in a “violent” manner.

The Court found that Orsini’s evidentiary showing was insufficient to defeat summary judgment. Evidence that the dog barked was insufficient to raise a triable issue of fact. Evidence that Dynasty would jump up on the fence and bark as pedestrians passed by the house, was insufficient to raise a triable issue of fact as to whether Cromarty/Grunert knew or should have known of Dynasty’s alleged vicious propensities. Normal canine behavior does not establish vicious propensities, and rambunctious behavior will show awareness of a vicious propensity only if it is the very behavior that resulted in the plaintiff’s injury. Here, Dynasty’s alleged behavior of jumping up on the fence at the sight of another dog approaching was typical canine behavior and did not reveal a proclivity to behave in a manner that could cause injury.

Cromarty/Grunert’s motion for summary judgment dismissing Orsini’s complaint was granted.

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