This was originally posted on the SGR Blog.
Is every dog entitled to one bite? As a recent case illustrates, proof of prior canine misconduct is required to show vicious propensity.
Suzanne Castelluccio was bitten on May 12, 2016, by a dog named “Charlie” in the driveway of 13 Kent Street in Rock Hill, New York, owned by Karen Hudson and Phillip Hudson.
According to Karen Hudson, she and Castelluccio were traveling to Middletown when they stopped by the Hudson house in Rock Hill. Hudson exited the van and approached the chain-linked pen, which contained her Siberian husky, Charlie. The fence of the pen was approximately five feet high and extended to her garage. Hudson approached the gated pen, and Charlie jumped up with his front paws on the fence; she then went back toward the vehicle to retrieve her house keys. Castellucio saw Hudson pet the husky who asked for and was granted permission to pet Charlie. Hudson then proceeded from the van to her front door.
According to Castellucio, she had never met Charlie before the date of the incident. Castellucio approached Charlie, who jumped up on the fence with his front paws. She extended her hand through the fence toward Charlie, which he smelled for approximately 15 seconds. Castellucio then reached over the fence to pet Charlie on the back of his neck with both hands. Immediately after placing her hands over the fence, Charlie lunged at her and bit her face.
According to Karen Hudson, she was putting her key in the door of her house when she heard Charlie bark and turned to see the injured Castellucio backing away from the gate. As she was walking up the stairs to her door, immediately prior to the bite, she observed Castellucio rubbing Charlie’s hack. After the bite, Castellucio immediately got back into the van and traveled to Catskill Regional Hospital.
Phillip Hudson testified that other than the May 12, 2016 incident, Charlie had never bitten or lunged at another person; had never growled at another person; nor had he received any complaints about Charlie before or after May of 2016.
Christian Gonzales testified that she has delivered the mail to 13 Kent Street in Rock Hill, the Hudsons’ residence, for the past twelve years and was familiar with Charlie. When she got close to Charlie’s enclosure, he would start barking. Gonzales was afraid of Charlie and described him as “very aggressive.” And Phillip Hudson had observed Charlie growl and show his teeth when she approached the house. Due to Charlie’s barking, Phillip Hudson had permitted Gonzales to leave packages away from the door. And she told him that she was afraid of Charlie and would not approach the house to deliver packages.
The Hudsons sought summary judgment dismissing Castellucio’s complaint on the assertion that Charlie did not exhibit any vicious propensities on or before on May 12, 2016; they had no notice of Charlie’s vicious propensities; Castellucio requested and was granted permission to pet Charlie, and Castellucio unilaterally initiating contact with Charlie was the sole proximate cause of her injuries. And because Castellucio approached Charlie of her own accord and hugged Charlie with both hands, she assumed the risk by partaking in an activity she knew to be potentially dangerous.
Castellucio asserted that Charlie had vicious propensities, as demonstrated by the testimony of Gonzales, and that the Hudsons either had knowledge of Charlie’s propensities or reasonably should have had such knowledge. And that Castellucio was not aware of the risks; had no appreciation of the nature of the risks, and did not voluntarily assume the risk—based upon the assertion that Castellucio had never met Charlie before and had never been told that the dog was vicious or aggressive.
The Hudsons stated that, because Castellucio had been bitten by a dog before, she had the necessary knowledge and experience to be aware of and appreciate the risk of approaching an unfamiliar dog.
The law imposes strict liability on the owner of a dog who inflicts injuries on others if the owner knew or should have known that the dog had the propensity to be vicious. 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.
Evidence of a dog’s vicious propensity can include whether the dog had previously bitten someone, the manner in which the dog was restrained, whether the dog had been known to growl, snap, or bear its teeth, or the dog’s proclivity to put others at risk of harm. For dog owners to be entitled to judgment as a matter of law, they must establish that they were not aware, nor should they have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior.
In order to consider the assumption of the risk in a dog bite case brought under a strict liability theory, it must first be established that the dog had the propensity to be vicious. Once that has been established, the owners have the burden of proving that the injured plaintiff had full knowledge of the dog’s character and voluntarily brought the injury upon himself.
The Hudsons asserted that, on or before May 12, 2016, they were unaware that their dog, Charlie, was prone to any vicious propensities. Phillip Hudson testified that, other than the alleged bite on May 12, 2016. Charlie has never bitten or lunged at another person and never growled at another person. Hudson claimed to have never received complaints about Charlie before or after the May of 2016 incident.
Where, in the review of a motion for summary judgment, triable issues of fact are raised as to whether a dog had vicious propensities or whether the dog’s owner knew or should have had knowledge of these propensities, the case cannot be disposed of through summary judgment. Summary judgment is not appropriate based on the owners’ sole claim that they lacked knowledge of a dog’s vicious propensity where the evidence raises triable issues of material facts. In this case, the Hudsons’ only support that Charlie lacked vicious propensities was the testimony of Karen Hudson and Phillip Hudson, who claimed to have lacked knowledge of Charlie’s vicious propensity at the time of the alleged incident.
While it may be that Charlie has not previously bitten anyone prior to May 12, 2016, there was a triable issue of material fact regarding whether Charlie had exhibited any aggressive behavior prior to biting Castellucio. Gonzales testified that Charlie was “very aggressive” and that Phillip Hudson had observed Charlie growl and show his teeth when she approached the house. Gonzales also testified that Charlie was kept in a fenced-in enclosure. There was also a dispute as to whether the Hudsons had a “beware of dog” sign on the premises. Gonzales testified that they always had such a sign. Karen Hudson testified that, in May of 2016, there was no such sign on the premises.
The deposition testimony did not establish conclusively that Charlie was prone to vicious propensities. But Charlie’s enclosure in a chain-linked fence, the presence of a “beware of dog” sign, and Gonzales’ testimony might support such an inference. Thus, while Gonzales’ testimony did not prove Charlie was prone to a vicious propensity, it did raise an issue of fact of whether Charlie had a vicious propensity and whether the Hudsons were aware that Charlie could exhibit aggressive behavior. Because that issue could not be resolved at this stage in the litigation, that was is an issue to be resolved by a jury.
The Hudsons failed to demonstrate that they were entitled to judgment as a matter of law because they failed to provide sufficient evidence that Charlie did not have any vicious propensities. Looking at the evidence in a light most favorable to Castellucio, there was an issue of material fact with respect to whether Charlie had any vicious propensities. As it had not been established that Charlie had a vicious propensity, the Court did not address the assumption of the risk.
The ultimate outcome will turn solely on whether Charlie exhibited any evidence of vicious propensities either on or before May 12, 2016, the date Castellucio was allegedly bitten. The function of the Court was issue finding and not issue determination. Accepting Castellucio’s argument and the testimony of the Hudsons as well as Gonzales’ as true, the Court found that the Hudsons failed to demonstrate a prima facie entitlement to judgment as a matter of law. The question of whether Charlie had a vicious propensity at the time he allegedly bit Castellucia on May 12, 2016, was a triable issue of fact that must be determined by a jury.