Juno and Josie Joust in Chatham

This was originally published on the SGR Blog.

Court Patiently Parses Pet Peeves

On October 27, 2018, Julie Hickson was walking her dog, Juno, through a neighborhood in the town of Chatham, Columbia County, when she approached a residence located at 144 Hudson Avenue. The residence was owned by Fredda Brown, who leased a portion of it to her daughter, Leah Brown-Oliva.

Brown-Oliva had just exited the residence with her own dog, Josie, who was secured by a retractable leash. As Brown-Oliva was closing the door behind her, Josie began running toward Hickson and Juno, pulling the retractable leash out of Brown-Oliva’s grasp. Josie and Juno quickly became engaged in a fight, as Hickson and Brown-Oliva attempted to separate the dogs. During the struggle, the retractable leash that was still attached to Josie became wrapped around Hickson’s legs, and she fell to the ground. Eventually, the dogs were separated, and Hickson and Juno walked away. Hickson later went to an urgent care center, where she was found to have fractures in both of her hands.

Hickson sued Brown and Brown-Olivia. Motion practice followed discovery.

A cause of action for ordinary negligence does not lie against the owner of a domestic animal which causes injury. Rather, the sole viable claim is for strict liability, which must be established by evidence that the animal’s owner had notice of its vicious propensities. That principle applies even where it is not alleged that there was any direct animal attack or bite but, rather, it is alleged that the owner failed to restrain or properly handle the animal.

Brown and Brown-Olivia submitted evidence that they had no prior knowledge of any vicious propensities on Josie’s part. They submitted Brown-Oliva’s sworn deposition testimony, who testified that Josie behaved well with her children, was walked regularly without a muzzle, did not act in a protective or fearful manner, and did not growl at or chase other animals. Brown-Oliva also testified that the incident was the first time that something like that had happened. In her deposition, Brown stated that Josie was pleasant to be around. Josie was not excitable, protective, or fearful, and, to her knowledge, had never bitten or fought with another dog before.

Hickson pointed to Brown-Oliva’s testimony that Josie had run away a few times before and that showed that Josie could foreseeably be a danger to others.

An animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit. However, the mere fact that Josie had “[run] away a few times” did not raise a question of fact as to whether such behavior reflected a proclivity to put others at risk of harm. Significantly, the record was devoid of any evidence that Josie, in running away in the past had ever run toward or acted aggressively toward another animal or person.

Based upon all of the foregoing, Brown and Brown-Olivia made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they had no prior notice of any vicious propensities on the part of Josie. Hickson, in turn, failed to raise any triable questions of fact in that regard. As such, the motion for summary judgment is granted, and the cross-motion for summary judgment is denied.

Hickson’s complaint against Brown and Brown-Olivia was dismissed.

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