Dog Bite Law

Strict liability for medical costs

Agriculture & Markets Law, Section 121, subdivision 10, makes the "owner or lawful custodian" of a "dangerous dog" "strictly liable" for medical costs resulting from "injury" caused by such dog to a person, "companion animal," farm animal or "domestic animal." Section 121 contains a number of definitions:

• The "owner" is a person who harbors or keeps the dog. (Sec. 108, subd. 15.)

• A "dangerous dog" is one that "without justification" either (a) attacks and injures or kills a person, "companion animal," farm animal or "domestic animal" or (b) "behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death" to one or more of the foregoing. (Sec. 108, subd. 24(a).) There is an exception for dogs assisting the police. (Sec. 108, subd. 24(b).) The conduct of the victim, either on the day of the attack or at a much earlier time, also can exempt a dog from "dangerous" status. (Sec. 121, subd. 4.)

In addition to liability for medical costs, the owner of a dangerous dog may be required to pay a fine if his negligence results in a dog bite to a person, service dog, guide dog or hearing dog. The amount of the fine depends on whether the injury was to a person or animal, the seriousness of the injury, and whether the dog previously was adjudicated to be a dangerous dog. Agriculture & Markets Law, Section 121, subdivisions 6, 7 and 8.)

Criminal penalties

If a dog owner negligently permits his dog to bite a person, the dog previously was declared to be dangerous, and the injury is a "serious injury," the dog owner can be convicted of a misdemeanor ($1000 file and 90 days in jail). Agriculture & Markets Law, Section 121, subdivision 8.) A "serious injury" is one that causes death or presents the risk of death, or causes "serious or protracted" disfigurement, "protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Agriculture & Markets Law, Section 108, subdivision 29.)

If a dog previously declared dangerous escapes or otherwise gets to a person and kills him, the owner can be convicted of a class A misdemeanor, in addition to other penalties and civil liability. Agriculture & Markets Law, Section 121, subdivision 9.)

New York is a "one-bite state " for damages other than medical costs

New York courts have long recognized a cause of action that imposes strict liability on the owner for injuries inflicted by his dog if the victim can establish that the dog is vicious and that the owner knew or should have known about such vicious propensities. The state's highest court ruled "that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation." Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006), citation omitted.

Evidence of vicious propensity

The state's highest court has ruled that a jury is entitled to consider any evidence of a dangerous propensity, and that a prior bite is only one such type of evidence:

[W]hile knowledge of vicious propensities "may of course be established by proof of prior acts of a similar kind of which the owner had notice," a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less (Collier, 1 NY3d at 446). In Collier, a case in which a dog bit a child, we gave the example of evidence that a dog had, for example, "been known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained" (id. at 447). "In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities albeit only when such proclivity results in the injury giving rise to the lawsuit" (id.). [Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006).]

Presence of "Beware of Dog" signs standing alone are not enough to imply that dog owner knew of his dog's vicious propensities.  Altmann vs Emigrant Savings Bank, 249 AD2d 67, 68 (First Dept, 1998); Frantz vs McGonagle, 242 AD2d 888 (Fourth Dept, 1997); Arcara vs Whytas, 219 AD2d 871, 872 (Fourth Dept, 1995).

A defendant who establishes by undisputed proof that his dog had never bitten anyone before and had never bared its teeth or growled at anyone before is entitled to summary judgment.  Arcara vs Whytas, 219 AD2d 871, 872 (Fourth Dept, 1995).

The fact that a dog was chained and strained on its chain and barked when people approached was held insufficient to create an inference that the dog was vicious.  Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).

In determining whether an animal has vicious propensities, a jury may consider the nature and the result of the attack on the victim. Lynch vs Nacewicz, 126 AD2d 708, 709 (Second Dept, 1987).

Evidence of the severity of injuries by prior victims of same dog is admissible as probative of the dog's vicious propensities and the owner's knowledge of same. Lynch vs Nacewicz, 126 AD2d 708, 709 (Second Dept, 1987). 

No cause of action for negligence

New York refuses to recognize the negligence cause of action when it comes to any domestic animal. Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006). Cases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence Bard v. Jahnke, supra, citing Collier v Zambito, 1 NY3d 444 (2004). The Bard court stated emphatically, "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier." Id.

Summary Judgment

If a defendant fails to submit admissible evidence his summary judgment motion must be denied.  Pringle vs New York City Housing Authority, ___AD2d____; 689 NYS2d 181, 182(Second Dept, 1999).

If there is conflicting evidence regarding the dog's vicious propensities, that issue must be given to the jury to decide.  Frantz vs McGonagle, 242 AD2d 888 (Fourth Dept, 1997).

Proof that dog was bred to be aggressive and was high strung and territorial not enough to raise issue of fact re: dog's vicious propensities or owner's knowledge of same.  Wilson vs Whiteman, 237 AD2d 814, 815 (Third Dept, 1997).

Damages

Damages of $310,000.00 were held excessive where evidence indicated that the victim was able to perform most of her household duties and work full time, and was coping with phobia of dogs by seeking counseling.  Fontecchio vs Esposito, 108 AD2d 780, 781-782 (Second Dept, 1985).

For more information

The following websites have additional information about New York State dog bite laws:

• ASPCA Law Manual

• The text of the dangerous dog law, provided by the State of New York Department of Agriculture and Markets. (This is a .pdf file that will be downloaded to your computer from the state website. You will need Adobe Reader to view it.)

For attorneys who are researching the law of this state

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