Court Addresses Cross-Motions For Summary Judgment
Felicia Low was injured after sustaining a bite caused by Kathryn Trevisan’s dog, Blazer. Low brought suit against Trevisan and Lucas B. Moriera, who was walking the dog, asserting three claims, including negligence, strict liability, and a claim pursuant to New York Agriculture and Markets Law § 123(10). Low moved for summary judgment on the issue of whether Blazer had a violent propensity, creating strict liability. And Trevisan and Moriera moved for summary judgment on the issue of strict liability. The Court addressed the motions together.
It was undisputed that Moriera was walking Blazer and another dog when they encountered Low, who stepped aside to allow Moriera and the dogs to pass. Blazer then bit Low. In dispute, however, was whether Moriera later stated Blazer had bitten him in the past or whether Blazer had ever previously bitten or attempted to bite anyone.
When harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rules articulated by the Court of Appeals that:
[f]or at least 188 years, the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. 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. Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice. In addition, a triable issue of fact as to knowledge of a dog’s vicious propensities might be raised— even in the absence of proof that the dog had actually bitten someone—by evidence that it had been known to growl, snap or bare its teeth. Also, potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained. The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities.
For an owner to have knowledge of their dog’s vicious propensity, the dog must have performed prior acts of a similar kind of which the owner had notice. And 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.
As evidence of Blazer’s “violent propensity,” Low pointed to her testimony that Moriera was walking Blazer close to him, under greater control than the other dog, Low observed Blazer gritting or grinding or gnashing its teeth as Moriera and the dogs approached; Moriera stated he had considered crossing the street to avoid Low; and Moriera stated Blazer had bitten him before.
Trevisan and Moriera opposed the motion, stating that neither of them was aware of Blazer biting a person prior to the incident with Low. They did not dispute that Moriera was walking Blazer on a shorter leash and considered crossing the street. But did take issue with Low’s testimony that Blazer was gritting or grinding or gnashing its teeth, arguing it was not credible that Low could have seen that conduct under the conditions as they were approaching,
Trevisan and Moriera contended that, to establish a vicious propensity as a matter of law, there must be evidence of a prior bite or that the dog had been known to growl, snap, or bare its teeth. Here, there was no undisputed evidence of a prior bite, or that they had any knowledge of prior behavior by Blazer evincing a vicious propensity. Trevisan and Moriera argued that Low had failed to make a prima facie case that Blazer showed a vicious propensity, so the motion should be denied.
But Low also pointed to Blazer’s veterinarian records, which referenced the dog being “excitable and high energy” on a subsequent date. However, the Court found that those records were far from indicating a vicious propensity.
Here, the only undisputed evidence provided was that Moriera was walking Blazer on a fixed (rather than retractable) leash, keeping Blazer close to him, and had considered crossing the street when he saw Low approaching. The impact of those facts was open to interpretation and they were insufficient to establish a violent propensity. For example, in a prior case, the New York Court of Appeals affirmed the Appellate Division’s dismissal of the complaint, finding that the plaintiff had failed to raise a disputed issue of fact regarding knowledge of a dog’s violent propensity to bite, despite evidence “Cecil,” a beagle/collie/rottweiler family pet, barked at visitors on prior occasions and was generally confined behind a gate when visitors came into the home.
The other evidence provided by Low did not change the determination. Low averred that Moriera said Blazer had bitten him before, but that testimony was disputed by Moriera, leaving a question of credibility for the finder of fact. Low’s testimony about the grinding or gnashing of Blazer’s teeth was also disputed. And, even if true, did not go to establish a tendency or prior propensity, since that conduct was allegedly observed at the time of the incident, not before.
There were disputed issues of material fact whether Blazer had a prior vicious propensity and whether strict liability applied to the dog’s conduct. Both motions for summary judgment were denied.