Human encounters with overly aggressive or unfriendly canines are a common occurrence throughout our great state.
Generally, a dog's custodian may be subject to "strict liability" for injuries inflicted by the animal if the victim can establish that the dog is "vicious" and that the caretaker knew or should have known of the animal's propensities. In one reported case, for example, the court accepted evidence of a prior history of attacks on other victims as proof of these elements. In another instance, when a caretaker was able to prove that his dog had no prior record of attacking humans and that the animal had never bared its teeth or growled at anyone, the lawsuit was dismissed.
When there is conflicting evidence as to the the dog's viciousness and/or a custodian's knowledge, these issues will typically be decided by the judge or jury. Interestingly, the caselaw has discouraged courts from operating under certain assumptions (or presumptions). By way of example, proof that certain dogs have been bred to be "high strung," "aggressive," and/or "territorial" will not automatically trigger the "vicious" element, nor has the presence of a "Beware of Dog" sign (in and of itself) established that the animal's custodian possessed the requisite knowledge. And, finally, an animal's mere agitation and barking when people approach have also been found to be insufficient to trigger liability.
Yet, a recent appellate case may be signaling that the governing standards are loosening just a bit. In McLane v. Jones, the Appellate Division, Fourth Department, allowed a victim's case to survive dismissal despite an owner's demonstration that she lacked "actual or constructive notice" of the animal's "vicious propensities," noting as follows:
We conclude, however, that plaintiff raised an issue of fact whether defendant knew or should have known of her dog's alleged vicious propensities by submitting evidence that, prior to the incident herein, defendant's dog would run along defendant's side-yard fence and would behave in an aggressive manner by jumping on the fence, casting her paws over the fence, and barking and growling as pedestrians passed by the house ....
So dawg, it looks like you're no longer permitted to do what comes naturally.
To view a copy of the Appellate Division's decision in McLane v. Jones, please click on the following link:
To view Collier v. Zambito, a 2004 decision issued by the New York State Court of Appeals on this topic, please click on the following link: