“Beware of the Dog”: Did Pet Have Known Vicious Propensities?

This was originally posted on the SGR Blog.

“Every dog is entitled to one bite” is shorthand for the principle that a dog owner may not be liable for an attack or bite by a pet without known vicious propensities. But, as a recent case illustrates, a determination of whether or not the vicious propensities were known to the owner is both circumstance specific and fact-intensive.

Kathleen Stack, a home health aide, alleged that she was injured on June 14, 2017, on-premises owned by Frank Manfredi and Lillian Manfredi premises at 115 Quinby Avenue, City of White Plains. Stack alleged that she was attacked by a dog who charged at her causing her to brace herself against the Manfredis’ door to prevent from being bitten and attacked. In doing so, she claimed injuries to her neck, back, shoulders, wrists, hands, and ankles. And that the Manfredi’s had knowledge of the vicious propensity of the dog– and were strictly liable in tort, as well as negligence.

The Manfredi’s moved for summary judgment on the basis that Stack was never bitten by the dog, nor was there any evidence that the dog had a propensity for violence.

According to the Manfredi’s, their dog lacked vicious propensity, was friendly, and had never growled at, chased, bitten, or attacked anyone, and that they were unaware of any prior complaints about their dog’s behavior. And there can be no strict liability where a dog had not actually bitten anyone and there was no evidence of actual or constructive knowledge of the dog’s propensity for viciousness.

As to Stack’s negligence claim, the Manfredi’s argued that there was no common law negligence liability for cases involving dogs.

In anticipation that Stack would rely on their “Beware of Dog” sign, the Manfredi’s assert that, in the absence of further corroborative evidence of a vicious propensity, the sign was insufficient to preclude summary judgment.

And, in turn, Stack argued that there were triable issues of fact as to whether the Manfredi’s had prior notice of the dog’s vicious propensities and were negligent in allowing the doors to the property to remain open while the dog was on the premises.

Stack asserted that she suffered from over 40 serious and permanent injuries as a result of the incident during which the dog charged at the door with a loud bark and a growl. But Stack’s injuries were not relevant if there was no theory upon which the Manfredi’s were are liable.

Stack contended that the deposition testimony of the Manfredi’s and their daughter clearly showed that they knew or should have known of the dog’s vicious propensities before the incident. Both Manfredi’s testified that: 1) the dog would bark at all unfamiliar individuals either coming to the property or coming near the property; 2) would daily bark at the mail delivery person; 3) the dog was territorial and sensitive to noise; (4) the dog would already be at the front door barking when an individual came to the front door; and 5) the dog would not stop barking and leave an individual until a member of the family said: “it’s okay.” Additionally, their daughter testified that the dog would charge in a “playful way”, that it did have some issues biting hands and ankles when she was teething, and that the property did have a “Beware of the Dog” sign in the front yard prior to and at the time of the incident the purpose of which she did not know. Stack asserted that, together with the “Beware of Dog” sign, those behaviors raised an issue of fact regarding 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 or 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. In contrast, normal canine behavior, such as barking and running around, does not amount to vicious propensities. The vicious propensity doctrine, which provides for strict liability against an owner of a domestic animal that causes harm, where the owner knows or should have known of the animal’s vicious propensities, has been the law in New York since at least 1816.

Stack’s testimony that the dog was a “pit bull” was immaterial. The Court of Appeals has never held that particular breeds of domestic animals are dangerous, and therefore when any breed or type of dog causes harm, its owner is charged with knowledge of vicious propensities.

The Manfredi’s made out a prima facie case of entitlement to summary judgment by showing that they had no knowledge of the dog’s vicious propensities; the dog, in fact, had no vicious propensities; and the dog’s alleged conduct that resulted in Stack’s injuries were not vicious. Stack failed to raise a genuine issue of fact about the Manfredis’ actual or constructive knowledge of the dog’s vicious propensities.

On the issue of negligence, Stack simply asserted that none of the Manfredi’s can state whether the front door or the storm door was closed at the time of the incident, thus leaving the dog the opportunity to attack her and forcing her to brace the door to prevent the attack. Even assuming that the front door was slightly open, the Manfredi’s owed no duty to Stack under a common negligence standard. In New York, a negligence claim may not be asserted against a dog owner, even if there is negligence on the part of the owner unless the dog has a propensity to be vicious.

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