According to the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, 4.7 million Americans are bitten by dogs each year. Of that number, 800,000 Americans seek medical attention and about a dozen die. With those odds, it's no wonder that dog bites receive a lot a play in our case law.
In Malpezzi v. Ryan, on the evening of September 14, 2001, a pit bull named "Oreo" bit 6-year-old Casey L. Malpezzi on the arm. Casey's mom later started a lawsuit on her daughter's behalf in the Schenectady County Supreme Court seeking monetary damages for the injuries Casey sustained. After motion practice, the Supreme Court refused to dismiss the case citing a "question of fact" as to whether Oreo's caretakers were aware of the canine's "vicious propensities." On appeal, the Appellate Division, Third Department, reversed noting as follows:
As this Court consistently has held, "a plaintiff may not recover for injuries sustained in an attack by a dog unless he or she establishes that the dog had vicious propensities and that its owner knew or should have known of such propensities"...Here, defendant and his girlfriend testified, without contradiction, that they did not experience any problems with the dog prior to the incident with Malpezzi. Specifically, each testified that Oreo did not display any act of aggression prior to biting Malpezzi; Oreo did not bark, growl, bare his teeth or snap at, jump on or chase any person or animal, nor did they receive any complaints from anyone in the neighborhood. Such proof, in our view, is more than adequate to discharge defendant's initial burden on the motion for summary judgment, thereby compelling plaintiff to come forward with sufficient admissible proof to raise a question of fact in this regard. This plaintiff failed to do.This outcome stands in stark contrast to what transpired in yet another dispute involving a canine with the identical name. In this later case, the twenty-five pound, 9-year-old "cockapoo" (part spaniel, part poodle) is a companion to local celebs, Jerry Della Femina and Judy Licht. At a party held at their Hampton's home on August 4, 2003, this Oreo bit Delores Marsh, in the leg, causing a four-inch laceration which led to a bone infection, nerve damage and permanent scarring. Apparently, Oreo's caretakers were aware of the animal's "vicious propensities," but failed to take appropriate precautions. As a result of their "grossly negligent and reckless" conduct and "wanton or reckless disregard" of Ms. Marsh's safety, the New York County Supreme Court permitted Ms. Marsh to pursue a punitive damage claim against Della Femina and Licht.
While we believe Ms. Marsh should be compensated for her pain and suffering and any expenses she incurred, we are not convinced that the defendants' exposure to a potential multi-million dollar punitive-damage recovery is entirely appropriate under the circumstances. For starters, despite Oreo's prior history of attacks, we are not certain that Della Femina and Licht were engaged in "morally culpable conduct" or guilty of other acts or omissions which trigger this rarely granted type of relief. (After all, in the scheme of things, it was only a dog bite.) We are also concerned that the court has "opened the door" for a needlessly excessive and arbitrary punishment; an outcome which could be clouded by the wealth and celebrity status of the individuals involved.
Maybe, just maybe, having one Oreo is more than enough.
For a copy of the Appellate Division's decision in Malpezzi v. Ryan, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03138.htm
For a copy of the Supreme Court's decision in Marsh v. Della Femina, please click on the following link: Marsh v. Della Femina or http://www.nycourts.gov/reporter/3dseries/2006/2006_50943.htm
For the Centers for Disease Control and Prevention's website, please click on the following link:
http://www.cdc.gov/ncipc/duip/biteprevention.htm