Last year, we reported on Bernstein v. Penny Whistle Toys, Inc. , an appeal decided by the Appellate Division, First Department.
While in Penny Whistle's Bridgehampton store , 8-year old Danielle Bernstein was mauled by "Scooter," the proprietor's male Labrador mix dog. (Young Danielle incurred a "disfiguring (facial) injury" which required some 50 stitches.)
Because Scooter had not previously exhibited aggressive behavior, the New York County Supreme Court was unreceptive to a personal-injury lawsuit brought on the child's behalf and dismissed the case. On appeal, the Appellate Division, First Department, concurred with the outcome.
A lone dissenter -- Justice David Saxe -- was of the opinion that Penny Whistle may have abrogated an independent duty to maintain its premises in a reasonably safe condition. Since a toy store attracts children, Saxe believed that Penny Whistle was required to protect its young customers from foreseeable harm. Whether Penny Whistle failed to provide adequate safeguards (in light of the animal's presence in the store) was a question which the dissenter believed warranted a formal hearing or trial.
We anticipated that the Court of Appeals wouldn't be receptive to an appeal and were proven right.
Just a few weeks ago -- on March 18, 2008 -- our state's highest court concluded that Danielle's claim was correctly dismissed since there was "no evidence in this case that the dog's owner had any knowledge of the vicious propensities."
As far as Justice Saxe's dissenting analysis was concerned, let's just say the Court of Appeals ... didn't bite.
To download a copy of the Court of Appeals's decision, please use this link: Bernstein v. Penny Whistle Toys, Inc.
To download a copy of the Appellate Division's decision, please use this link: Bernstein v. Penny Whistle Toys, Inc.
To view our original post on this case, please use this link: KID BIT BY SCOOTER
For our other blog posts on this topic, please use this link: Vicious Propensities