FAILED TO SHOW THAT ANIMAL HAD A VICIOUS PROPENSITY
While RMF was delivering a package, the defendants’ dog is said to have escaped from the house, jumped on RMF and bit her on the shoulder. When she later filed a personal-injury action with the Onondaga County Supreme Court, defendants moved -- via a motion for summary judgment -- for pre-trial dismissal of the litigation in their favor and the judge granted that request.
On appeal, the Appellate Division, Fourth Department, noted that under New York law liability for an animal attack will only attach when the creature's custodian “knows or should have known of that animal's vicious propensities.”
Stripped down to its core, vicious propensity can be shown when there have been “prior acts of a similar kind,” of which the custodian had notice, and can include any behavior which shows a “proclivity … that puts others at risk of harm.” Such behavior can include “the animal being territorial, aggressively barking when [their] area [is] invaded, attacking another animal, growling and biting at another dog and jumping on individuals.”
Because this incident was apparently an outlier, and the defendants satisfactorily demonstrated that there were no prior incidents of aggression or misconduct, the AD4 thought that they had “met their burden” and were entitled to dismissal of the litigation, particularly since RMF “failed to raise a triable issue of fact in opposition.”
We hope this outcome didn’t dog her.
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DECISION