UPS Driver Injured by Dog in Course of Delivery

This was originally published on the SGR Blog.

Did Canine Have Known Vicious Propensity to Leap?

Thomas Cinguina was bitten by a dog owned by Gayle Berg while delivering a package to Berg in the course of his employment as a United Parcel Service (UPS) delivery driver. He was injured when he then fell while trying to get away from the dog. Cinguina’s complaint alleged strict liability and negligence or reckless disregard.

Berg moved for summary judgment and submitted the deposition testimony of Cinguina, herself, and her husband. She particularly relied on the portions of Cinguina’s testimony in which he stated that at the time of the incident, Berg’s dog was tied to a five-foot leash on the porch— which he first noticed as he was placing the package on her porch—and that he had not had any problem previously in delivering packages to Berg’s house during the more than three years that he drove that route.

Berg also submitted her own, and her husband’s, testimony that the dog had never bitten anyone, or behaved aggressively, prior to the incident. Berg also testified regarding hearsay statements that she said were made about Cinguina by his manager, who came to her house to complete an incident report. Finally, counsel characterized the dog bite as a “scratch” on Cinguina’s calf that could have resulted from his fall.

In opposition, Cinguina pointed to other portions of his own deposition testimony, in which he testified that, prior to the incident, there had been past instances in which he had confrontations with the dog, and the owner had agreed with him to keep the dog indoors. Elaborating that on previous occasions when he had encountered Berg while she was walking the dog, Berg had to restrain the dog on a leash when she was walking with all her might and the dog literally dragged her and if the dog was not on a leash, it probably would have bit him. Berg had a very hard time holding the dog back on the leash multiple times. When Cinguina saw Berg without the dog after those incidents, he I said: “Gayle, please, if I’m making a delivery on your property, please keep the dog inside.”

Cinguina argued that, because UPS package deliveries could be tracked online, Berg knew or should have known when her package was going to be delivered, and kept the dog inside.

When harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the vicious propensities. Negligence is no longer a basis for imposing liability.

Berg asserted that there was insufficient evidence that her dog had “vicious propensities,” arguing that Cinguina did not testify that the dog exhibited vicious behavior such as growling or showing its teeth. However, the term “vicious propensities” does not require that the animal be vicious. The term includes the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. 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-only when such proclivity results in the injury giving rise to the lawsuit. A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the owner liable for damages resulting from such an act.

Here, the Court found evidence that Berg’s dog, regardless of whether it was well-behaved generally, had shown a propensity to lunge violently at Cinguina in particular, and that Berg was aware of that propensity. Accordingly, questions of fact were present as to the existence, and Berg’s knowledge of her dog’s vicious propensity.

Berg’s motion for summary judgment dismissing Cinguina’s complaint was denied.

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