WHAT HAPPENED TO "VICIOUS PROPENSITY?"

On this blog, we have previously examined the law as it relates to animal attacks. And, generally speaking, when the incident involves a dog, cat, or "domestic animal,"* the injuries are usually not compensable unless the victim can establish that the animal has a "vicious propensity;" that is, a prior history of aggressiveness or other comparable behavior which would have triggered a duty on behalf of the animal's custodian to take appropriate safety precautions.
Without some irregularity in the animal's behavioral record, negligence cases involving dogs, cats and domestic animals (including a hornless dairy bull, named "Fred") have been dismissed. In addition, as we have reported, in the matter of Bard v. Jahnke, the state's highest court has made it clear that an injured party is also foreclosed from bringing a "common-law" or "ordinary" negligence case. (Some twenty states allow an owner to be found guilty of ordinary negligence, even in the absence of an animal's vicious propensity, when the custodian "intentionally causes the animal to do harm, or is negligent in failing to prevent harm." Thus far, the New York State Court of Appeals has declined to follow that rule.)
We came across a recent Appellate Division, Second Department, case which suggests that exceptions may exist. In Arbanil v. Flannery, Ernesto Arbanil was riding his mountain bike and was injured while making a sudden stop to avoid a dog, belonging to Charles and Annmarie Flannery, that had run into the street. At the time of the accident, it was unlawful in the Town of East Hampton for dogs to be "at large" or to "chase or otherwise harass any person in such a manner as to cause reasonable intimidation or to put such person in reasonable apprehension of bodily harm or injury." Apparently, this particular animal frequently roamed within two blocks of the Flannerys' residence.
Mr. Arbanil claimed that the Flannerys violated local law and were negligent in the manner in which they kept their dog and filed a lawsuit in the Nassau County Supreme Court to recover damages for personal injuries he sustained. The Supreme Court dismissed the case finding, that in the absence of any evidence as to the dog's vicious propensity, Arbanil's claims stated no legal basis for recovery. On appeal, the Appellate Division reversed (and reinstated Arbanil's case) finding as follows:

Where, as here, a plaintiff alleges a cause of action sounding in ordinary negligence, the salient issue is not whether the defendant had prior notice of the dog's vicious propensities. Rather, the issue is whether the defendant breached a duty of care owed to the plaintiff by negligently failing to prevent a foreseeable injury....