Canine Behavior Consultant Finds Pit Bull to be “Fear-Aggressive”—and Willing to “Attack and Fight”

This was originally published on the SGR Blog.

Alan and Lisa Johnson, husband and wife, sued for injuries Alan Johnson suffered when a dog owned by Kalpano Rao and Narayan Raj attacked Alan in an elevator in a residential condominium owned by Element Condominium and managed by Elliman Property Management. Rao and Raj owned and resided in condominium units in the building.

On May 30, 2011, Johnson, Raj, and his dog Ibiza boarded a public passenger elevator inside the building. Once inside, Johnson asked if he might pet Ibiza, to which Raj assented. Johnson lowered his hand to Ibiza to allow the dog to sniff him, and, after the dog appeared to accept Johnson’s hand, Johnson knelt down to face and pet the dog. After Johnson pet Ibiza, as Johnson was standing up, the dog barked at him, lunged at him, and bit his face, tearing off pieces of his nose and lip. Raj immediately pulled the dog away from Johnson, but not before he had suffered severe facial injuries that required plastic surgery.

After the incident, Element Condominium and Douglas Elliman Property Management sent Rao and Raj a letter requesting that they muzzle Ibiza until the condominium concluded an investigation. The condominium also sent a letter to all residents of the building notifying them of the attack and of the requirement that Rao and Raj muzzle the dog in the building’s common areas and transport the dog only in the building’s service elevators. Despite these letters, Johnson testified at his deposition that, after the attack, he encountered Ibiza in the passenger elevator and elsewhere in the building’s common areas without a muzzle on multiple occasions.

The Johnsons  sued and claimed strict liability and negligence, including negligent infliction of emotional distress, and sought damages for Johnson’s personal injuries and his wife’s loss of his services and society. They also claimed that the condominium breached the rules incorporated in the condominium by-laws by allowing Rao and Raj to keep a vicious dog and bring it into the building’s common areas both before and after the attack.

Rao and Raj cross-claimed against the condominium for contribution and implied indemnification, alleging that any negligence of Rao or Raj was derivative of the condominium’s negligence. The condominium cross-claimed against Rao and Raj for contribution, implied indemnification, contractual indemnification, and breach of a contract to procure insurance naming the condominium as insureds on the policy, but discontinued the cross-claim for contractual indemnification. Rao and Raj and, separately, the condominium  moved for summary judgment dismissing the complaint and all cross-claims.

Since Johnsons’ injuries were caused by a domestic animal, they could not claim ordinary negligence and had to rely solely on their’ strict liability claims. Rao and Raj, as Ibiza’s owners, and the condominium were strictly liable for harm caused by Ibiza if they knew or had reason to know of the dog’s vicious propensity.

“Vicious propensity” is defined as the propensity to endanger the safety of persons or property. To establish a dog’s vicious propensity, the Johnsons were not required to show that the dog has bitten anyone previously. They could establish the dog’s vicious propensity through evidence that the owner restrained the dog and of the type of the restraint, as well as the dog’s history of growling, snapping, or baring its teeth. A dog’s breed, alone, could not establish its vicious propensity.

Rao and Raj and the condominium established that they neither knew nor had reason to know of Ibiza’s vicious propensity before the attack on Johnson. Raj testified at his deposition about Ibiza’s “sweet” temperament and lack of aggressive behavior before the attack. Raj had never seen Ibiza growl, snap, snarl, show her teeth, or bite at any person before the attack. Other strangers previously had approached and pet Ibiza similarly to Johnson, without incident. Raj explained that he did not muzzle Ibiza because he had no reason to, as she was a friendly dog.

Rao’s deposition testimony corroborated Raj’s testimony. Rao testified that Ibiza was a calm, affectionate, and happy dog and exhibited no threatening behavior before the dog’s attack. Rao confirmed that Ibiza had never growled, snarled, or even barked at other dogs, their owners, or their walkers and did not wear or need a muzzle before the attack.

Finally, James Xanthos, the condominium account executive managing the condominium, and Nicholaus Williamson, a doorman for the building, each testified at his deposition that he was unaware of any complaints or incidents involving Ibiza or any other dog in the building. Alan Johnson specifically testified that he had observed Ibiza in the building before May 30, 2011, but had not observed or heard her growl, snap, show her teeth, or lunge.

In opposition, the Johnsons raised factual issues regarding Rao’s and Raj’s knowledge of Ibiza’s vicious propensity, relying in part on the affidavit of Ron Berman, a canine behavioral consultant and trainer. Berman concluded that, based on authenticated photographs of Ibiza’s physical characteristics, Ibiza is a pit bull mix and that pit bulls are willing to attack and fight. When a pit bull is aggressive, it is more likely to bite a stranger without provocation. Based on the undisputed facts that Ibiza attacked Johnson as he backed away from petting her and was in a non-threatening position and that Ibiza escalated her attack on Johnson as he moved away, Berman concluded that Ibiza was a fear-aggressive dog, which is fearful and manifests this fearfulness through aggression. A fear-aggressive dog will attack offensively and increase its aggression as the victim moves away, despite the decreasing threat, rather than attack defensively when the victim is close or threatening the dog. Berman also concluded that Ibiza’s sensitive intestinal tract, diarrhea, and uncontrolled or frequent urination, to which her owners testified, were medical conditions consistent with a fearful dog.

According to Berman, Raj’s testimony that Raj cautiously directed strangers to allow Ibiza to smell their hand before they pet Ibiza demonstrated that Raj was anxious about Ibiza’s negative reaction to strangers and suggested that Raj feared Ibiza would react aggressively toward a stranger. Raj’s testimony that Ibiza barked and growled at other dogs in a confined area gave Raj notice that Ibiza was aggressive, particularly if deep, guttural barks, which were especially indicative of aggression, accompanied her growling. On these grounds Berman concluded that Rao and Raj either knew, or had reason to know, of Ibiza’s aggression and thus her vicious propensity.

Berman recounted that, to arrive at his conclusions, he interviewed Joan Roney, a dog trainer and behavioral therapist, whom Rao and Raj admitted they hired to provide obedience training to Ibiza for behavioral therapeutic purposes. They further admitted that they maintained an ongoing relationship with Roney to train Ibiza’s walkers in handling Ibiza. Roney corroborated that Rao and Raj hired her to help with Ibiza’s behavior and informed Berman that Ibiza demonstrated behavioral problems related to fearfulness and was nervous and scared when meeting new persons.

While the information from Roney was inadmissible hearsay, Rao and Raj did not challenge Berman’s qualifications as an expert, nor suggest, let alone demonstrate through an expert of their own, that Berman’s interview with Ibiza’s trainer was unaccepted data to be used by a canine behavioral consultant and trainer to formulate or validate his opinions. And, even if Berman disregarded the confirmatory data from Roney, the testimony by Raj, Rao, and Johnson independently provided Berman similar data. Evidence independent of Roney’s statements thus supported Berman’s conclusions.

Berman explained that Roney’s observations of Ibiza’s behavioral problems related to fearfulness, her nervousness and fear when leaving the building and meeting new persons, and her negative reaction to persons coming close to interact with her, simply provided corroborating evidence of Ibiza’s fearfulness. Berman concluded that Ibiza was fearful, with a fear-aggressive temperament, and demonstrated aggressive behavior because of this temperament, based on other admissible evidence: Raj’s testimony regarding Ibiza barking and growling at other dogs, as well as Johnson’s testimony regarding the circumstances of Ibiza’s attack on Johnson. Excising Roney’s hearsay statements and any conclusions based only on those statements still left intact Berman’s ultimate conclusion that Ibiza was fear-aggressive and behaved aggressively because of this temperament.

Berman’s conclusions that Ibiza is part pit bull and thus likely to exhibit pit bull traits, with a history of medical conditions consistent with a fearful dog, was based in part on inadmissible veterinary records, but also on authenticated photographs and her owners’ testimony. Again Raj and Rao did not claim that veterinary records were an unaccepted basis to be used by a canine behavioral consultant and trainer to arrive at or confirm his conclusions.

Finally, Berman based his conclusion that Rao and Raj knew or were on notice of Ibiza’s vicious propensity solely on Raj’s testimony. Raj testified regarding Ibiza’s barking and growling, his cautious direction to strangers to offer their hand to Ibiza before petting her, and his discomfort with the interaction between Ibiza and Johnson when Johnson asked permission and crouched down to pet the dog, yet Raj did nothing to discourage that interaction. Raj’s caution and discomfort must have derived from his knowledge of Ibiza’s behavioral problems, as no other explanation was offered. Considering Roney’s findings not for their truth, but just for the fact that she imparted them to Berman, a stranger albeit a professional in her field, raised the inference that she imparted similar findings to the owners of the dog who had hired Roney to train the dog.

Consequently, Berman’s opinion that Ibiza was a fear-aggressive pit bull mix and that this fearful-aggressiveness manifested itself both in Ibiza’s barking and growling at other dogs and when Ibiza attacked Johnson raised a factual issue as to Ibiza’s vicious propensity. Although neither Ibiza’s breed, nor her barking and growling at other dogs, nor the brutality and circumstances of her attack singly was enough to evidence her vicious propensity, these factors together, when construed in a light most favorable to the Johnsons, were enough  to raise the issue of her vicious propensity. Berman’s opinion that Rao and Raj knew or had reason to know of Ibiza’s vicious propensity, because Raj witnessed Ibiza bark and growl at other dogs, cautiously directed strangers to allow Ibiza to sniff their hand before they pet her, and admitted his discomfort when Ibiza interacted with another person, was unchallenged. At minimum, Berman’s opinion likewise raised an issue whether Rao and Raj were on notice of Ibiza’s vicious propensity. Therefore the court granted summary  judgment to Rao and Raj on their negligence, but denies them summary judgment on their strict liability.

Berman’s affidavit did not address whether the condominium defendants knew or had reason to know of Ibiza’s vicious propensity, nor did the Johnsons present any other evidence demonstrating notice. The condominium’s rules permitted Rao and Raj to keep a dog.

Neither Ibiza nor any other dog had been involved in any prior complaint or incident that gave the condominium notice of dogs in the building being a safety concern, let alone of Ibiza’s vicious propensity. Therefore, to the extent that the complaint included claims for strict liability against the condominium, they were entitled to summary judgment dismissing the claims for strict liability as well as negligence.

To succeed at trial on their claims for negligent infliction of emotional distress, the Johnsons had to show that a breached a duty owed to them, that such breach unreasonably endangered or caused them to fear for their physical safety, and that this conduct was outrageous and extreme beyond all possible bounds of decency. Real property owners owe persons on their property a duty of reasonable care to maintain the property in a safe condition.

The Johnsons claimed that they we’re negligently caused emotional distress by Ibiza being allowed to attack Johnson, a claim duplicative of their other claims, and then by allowing Rao and Raj to transport Ibiza in the passenger elevators and around the building without a muzzle after the attack. Even if Rao and Raj callously flouted the condominium’s directive to keep Ibiza muzzled and out of the passenger elevators after the attack, and the condominium allowed such conduct, it was not so extreme or outrageous as to exceed beyond all possible bounds of decency and satisfy the high standards for a claim of negligent infliction of emotional distress. Therefore the court granted summary judgment dismissing claims for negligent infliction of emotional distress.

The Johnsons claimed that the condominium breached the condominium’s rules incorporated in its by-laws by allowing Rao and Raj to transport Ibiza in the passenger elevator before and after the attack. The rules governing the residential apartments in the building provided that:

No pets other than dogs, caged birds, cats and fish (which do not cause a nuisance, health hazard or unsanitary condition), shall be permitted, kept or harbored in a Residential Unit without the same in each instance having been expressly permitted in writing by the Residential Board or the managing agent of the Residential section…. In no event shall any Unit Owner maintain more than two (2) pets in a Unit without the consent of the Residential Board nor shall any bird, reptile, or animal be permitted in any public elevator in the Residential Section, other than the elevators designated by the Residential Board or the managing agent of the Residential Section for that purpose, or in any public portions of the Residential Section, unless carried or on a leash.

This rule expressly permitted owners to keep dogs as pets without prior consent, if they did not cause a nuisance, health hazard, or unsanitary condition. Since the condominium established the absence of any complaints, incidents, or other notice indicating Ibiza caused a nuisance, hazard, or unsanitary condition before her attack on Johnson, they did not violate the rule by permitting Rao and Raj to keep Ibiza before the attack. The second clause of the second sentence only bars animals in any public elevator or public portion of the Residential Section without a leash or without being carried. The Johnsons did not claim that Ibiza was in any public elevator or public portion of the condominium without a leash.

The Johnsons also claimed that the condominium breached a duty to maintain safe premises by not inquiring whether Rao and Raj owned a pet that caused a nuisance or hazard when they moved into their unit. If the condominium did not receive notice that Ibiza was causing a nuisance or hazard over her years in the building before the attack, the Johnsons failed to show how in an initial inquiry the condominium and managing agent  would have learned more than they learned over the years of observing Ibiza that would have raised a concern. Therefore the condominium and managing agent were entitled to summary judgment dismissing the breach of contract claim based on allowing Rao and Raj to keep Ibiza in the condominium before the attack.

Once Ibiza attacked Johnson, however, the condominium and managing agent were aware that Ibiza was a nuisance and health hazard. Therefore they failed to establish that they did not breach the first sentence of  the rule by allowing Rao and Raj to keep a dog that was a nuisance and health hazard or that the Johnsons did not suffer any compensable injury from such an attack.

The condominium also moved for summary judgment dismissing the Johnsons’ claims for punitive damages. They sought punitive damages from the condominium for their strict liability, negligence, and negligent infliction of emotional distress, but not for their breach of the condominium rules or by-laws. Since the court dismissed the claims seeking punitive damages, and there was. no independent cause of action for punitive damages under New York law, the Johnsons had no claim for punitive damages.

To the extent that the Johnsons asserted a claim under New York Agriculture and Markets Law , they could not recover medical expenses for Alan’s injuries because Ibiza was never declared a dangerous dog.

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