Should you ever have the misfortune of getting attacked by a dog, your injuries may not be compensable unless you can establish that the animal has a "vicious propensity" -- a history of aggressiveness or other comparable behavior which would have triggered a duty on behalf of the animal's custodian to take appropriate precautions.
Without that record, negligence cases have been dismissed.
In Alia v. Fiorina , Dana Alia was bicycle riding past Brian Fiorina's home and was assaulted by Fiorina's dog. When Alia brought an action alleging negligence and strict liability, the Greene County Supreme Court dismissed the case based on the plaintiff's inability to show that the animal's custodians had notice of the dog's aggressive behavior or tendency to interfere with traffic.
On appeal, the Appellate Division, Third Department, affirmed.
Even though the animal's custodians violated a local leash law by permitting the dog to roam unrestrained that, in and of itself, was insufficient to trigger liability nor served as notice of the dog's "propensity to interfere with traffic."
In the absence of any prior incidents or complaints, the AD3 concluded that the mere fact that the dog was permitted to run freely was insufficient to warrant the dispute's resuscitation.
Interestingly, the AD3's decision is at odds with a relatively recent Appellate Division, Second Department, case. In Arbanil v. Flannery , Mr. Arbanil was riding his mountain bike and was injured while making a sudden stop to avoid a dog -- belonging to Charles & Annmarie Flannery -- that had run into the street.
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 without any evidence of the dog's vicious propensity, Arbanil had no legal basis for a recovery. On appeal, the AD2 reinstated the case and noted 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....
Now don't snap at us, but we're of the opinion that the AD3 got it right.*
For our prior blog posts on this topic, please use this link: Vicious Propensity
---------------------------
*In Bard v. Jahnke , the state's highest court has made it abundantly clear that an injured party will be foreclosed from bringing a "common-law" or "ordinary" negligence case if an animal's vicious propensity can not be established.