Last week, at a class I was teaching for real estate brokers at the Real Estate Board of New York, a young lady asked the following question:
"Aren't dog owners entitled to 'one free bite?'"
Taken aback by the phrasing of that inquiry, I responded rather sardonically, "Well, that would depend on who or what you're going to bite."
After some additional prodding, the student clarified that she was of the belief that New York State courts afforded dog owners a "free pass" the first time their animals attacked a human being.
Unfortunately, that perception, which is shared by many, is not accurate.
According to our state's highest court, the issue is not "how many bites," but whether an animal's owner (or custodian) is aware or should have been aware of the creature's "vicious propensities."
While a prior attack would certainly be an indication of such a propensity, other behaviors which would place people "at risk of harm" may also trigger liability when injury occurs.
Here's a recent case that demonstrates the point.
In Marek v. Burmester , Glenn Marek was bicycling to work one October morning (up in Kent, New York), when two dogs -- owned by Leo Burmester -- allegedly attacked Marek. One dog reportedly ran in front of the bike, while another grabbed Marek by the leg, causing Market to fly over the bike's handle bars and fall to the ground.
In a personal injury lawsuit filed against Burmester in the Putnam County Supreme Court, Burmester moved to dismiss the case on the grounds that there was no evidence that he had prior knowledge of the animals' "vicious propensities." The Supreme Court agreed and ended the litigation.
On appeal, the Appellate Division, Second Department, reversed. Apparently, Marek's deposition testimony established that the dogs had demonstrated overly aggressive behavior "on at least 10 occasions" prior to the accident, and that they "sometimes" came within a few feet of his bicycle.
According to the appellate court, this history of behavior raised a question as to whether Burmester had "constructive notice of the dogs' proclivity to chase bicyclists on the roadway and as to whether those actions put others at risk of harm." As a result, the case will to proceed to trial and Burmester could be found liable for Marek's injuries -- even in the absence of a prior "bite."
Although we have not had the opportunity to review the appellate record, we are not convinced that the mere number of encounters should have been the operative factor in this case. The question should have been whether Marek (or others) made any of these prior "attacks" known to the owner. In the absence of knowledge, or blind indifference, we fail to see why the multiple encounters were relevant.
We would have been much more comfortable with the outcome of the appeal if testimony from Burmester's neighbors buttressed Marek's contentions that the animals attacked passersby and/or that Burmester was aware of his animals' behavioral patterns.
Not to blame the victim here, but you would figure that -- after one of those 10 earlier attacks -- Marek would have mentioned something to the owner or local police officials.
Besides, since he clearly had knowledge of the "peril," why didn't Marek try a different route?
(Was that too biting?)
For a copy of the Appellate Division's decision, please use this link: Marek v. Burmester
For our other posts on this topic, please use this link: Dog Bites