“Dangerous Dogs”Understanding Proceedings Under Agriculture and Markets Law §123

Jonathan G. Schopf, Esq.21 Everett Road ExtensionAlbany, New York 12205

518 489-1098 x 13www.theanimalattorney.com

www.theanimalattorney.blogspot.comwww.vincelettelaw.com

The Statute

• Amended and renumbered effective 1/1/2011• Formerly Ag and Markets §121• Many municipal forms still incorrectly refer to §121.• This may be a jurisdictional issue…..we will wait and

see.• May be expanded upon by local law• KNOW THE LOCAL LAW!• Sample local laws for the Town of Guilderland and City

of Albany at page 24 and 43 of the materials. For many other local laws see www.generalcode.com.

Important Definitions §108

• 108(7) – “Domestic animal”, remember this is not a cat or dog. No definition of companion animal is given. For further confusion, see also Public Health Law sec. 2140(13) and Environmental Conservation Law sec. 11-0103(5)(e) and Ag and Markets Law sec. 350(5).

• 108(10) “Harbor” – to provide food or shelter• 108(24) “Dangerous Dog”• 108(28) “Physical Injury”• 108 (29) “ Serious Physical Injury”• 108 (5) “Dog”• 108(15) “Owner”

Important terms that are not defined by Article 7

• Attack (we will define this later)• Companion Animal (but see Ag and Markets Law sec. 350(5)

“Companion animal” or “pet” means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section.

• Farm Animal (but see Ag and Markets Law sec.350(4) “Farm animal”, as used in this article, means any ungulate, poultry, species of cattle, sheep, swine, goats, llamas, horses or fur-bearing animals, as defined in section 11-1907 of the environmental conservation law, which are raised for commercial or subsistence purposes. Fur-bearing animal shall not include dogs or cats.

• Negligence

Who may initiate the complaint - § 123(1)

1. Any person who witnesses an attack or threatened attack, or in the case

of a minor, an adult acting on behalf of such minor, may make a complaint of

an attack or threatened attack upon a person, companion animal as defined

in section three hundred fifty of this chapter, farm animal as defined in such

section three hundred fifty, or a domestic animal as defined in subdivision

seven of section one hundred eight of this article to a dog control officer or

police officer of the appropriate municipality. Such officer shall immediately

inform the complainant of his or her right to commence a proceeding as

provided in subdivision two of this section and, if there is reason to believe

the dog is a dangerous dog, the officer shall forthwith commence such

proceeding himself or herself.

Seizure and hearing - §123(2)

•DCO may seize dog

•Must hold a hearing within 5 days

• At least 2 days notice

“Determination” §123(3)• 3. Upon a finding that a dog is dangerous, the judge or justice may order humane euthanasia

or permanent confinement of the dog if one of the following aggravating circumstances is established at the judicial hearing held pursuant to subdivision two of this section:

•(a) the dog, without justification, attacked a person causing serious physical injury or death; or

•(b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death; or

•(c) the dog, without justification, caused serious physical injury or death to a companion animal, farm animal or domestic animal, and has, in the past two years, caused unjustified physical injury or death to a companion or farm animal as evidenced by a “dangerous dog” finding pursuant to the provisions of this section. An order of humane euthanasia shall not be carried out until expiration of the thirty day period provided for in subdivision five of this section for filing a notice of appeal, unless the owner of the dog has indicated to the judge in writing, his or her intention to waive his or her right to appeal. Upon filing of a notice of appeal, the order shall be automatically stayed pending the outcome of the appeal.

Serious Physical Injury

• Serious physical injury must be “serious” as in a motor vehicle threshold issue. Bite wounds and a torn hamstring with a 8 week PT prescription is not “serious”, People v. Jornoz, 881 NYS2d 776 (4th Dep’t 2009).

Affirmative Defenses §123(4)• 4. A dog shall not be declared dangerous if the court determines the conduct of

the dog (a) was justified because the threat, injury or damage was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog or upon the property of the owner or custodian of the dog; (b) was justified because the injured, threatened or killed person was tormenting, abusing, assaulting or physically threatening the dog or its offspring, or has in the past tormented, abused, assaulted or physically threatened the dog or its offspring; (c) was justified because the dog was responding to pain or injury, or was protecting itself, its owner, custodian, or a member of its household, its kennels or its offspring; or was justified because the injured, threatened or killed companion animal, farm animal or domestic animal was attacking or threatening to attack the dog or its offspring. Testimony of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert shall be relevant to the court's determination as to whether the dog's behavior was justified pursuant to the provisions of this subdivision.

Appeal §123(5)

We will cover this later, in detail.

Owner’s liability- §123(6) and(7)• 6. The owner of a dog who, through any act or omission, negligently

permits his or her dog to bite a person, service dog, guide dog or hearing dog causing physical injury shall be subject to a civil penalty not to exceed four hundred dollars in addition to any other applicable penalties.

•7. The owner of a dog who, through any act or omission, negligently permits his or her dog to bite a person causing serious physical injury shall be subject to a civil penalty not to exceed one thousand five hundred dollars in addition to any other applicable penalties. Any such penalty may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.

Misdemeanor Penalty- §123(8)8. The owner of a dog who, through any act or omission, negligently permits his or her dog, which had previously been determined to be dangerous pursuant to this article, to bite a person causing serious physical injury, shall be guilty of a misdemeanor punishable by a fine of not more than three thousand dollars, or by a period of imprisonment not to exceed ninety days, or by both such fine and imprisonment in addition to any other applicable penalties. Any such fine may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.9. If any dog, which had previously been determined by a judge or justice to be a dangerous dog, as defined in section one hundred eight of this article, shall without justification kill or cause the death of any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, regardless of whether such dog escapes without fault of the owner, the owner shall be guilty of a class A misdemeanor in addition to any other penalties.

Strict Liability - §123(10) – (13)10. The owner or lawful custodian of a dangerous dog shall, except in the circumstances enumerated in subdivisions four and eleven of this section, be strictly liable for medical costs resulting from injury caused by such dog to a person, companion animal, farm animal or domestic animal.

11. The owner shall not be liable pursuant to subdivision six, seven, eight, nine or ten of this section if the dog was coming to the aid or defense of a person during the commission or attempted commission of a murder, robbery, burglary, arson, rape in the first degree as defined in subdivision one or two of section 130.35 of the penal law, criminal sexual act in the first degree as defined in subdivision one or two of section 130.50 of the penal law or kidnapping within the dwelling or upon the real property of the owner of the dog and the dog injured or killed the person committing such criminal activity.

12. Nothing contained in this section shall limit or abrogate any claim or cause of action any person who is injured by a dog with a vicious disposition or a vicious propensity may have under common law or by statute. The provisions of this section shall be in addition to such common law and statutory remedies.

13. Nothing contained in this section shall restrict the rights and powers derived from the provisions of title four of article twenty-one of the public health law relating to rabies and any rule and regulation adopted pursuant thereto.

Strict Liability

• Strict liability may attach for medical expenses where petition pleads sufficient cause and dog owner is given a chance to appear (DON’T Default!!) Christensen v. Lundsten, 863 NYS2d 886 (2008). Local court can order judgment for medical expenses in an unlimited amount arising from a dangerous dog attack (Id.)

• The possibility exists that one does not have to have a previous determination that a dog is dangerous for strict liability for medical expenses to attach, Budway v. McKee, 27 Misc3d 316 (2010).

Reporting Requirement §123(14)

14. Persons owning, possessing or harboring dangerous dogs shall report the presence of such dangerous dogs pursuant to section two hundred nine-cc of the general municipal law.

• MANY LOCAL MUNICIPALITIES ALSO HAVE SIMILAR REQUIREMENTS.

• IF SO, THE COURT MAY ONLY ENFORCE WITHIN COURT’S JURISDICTIONAL / GEOGRAPHIC LIMITS.

Proposed legislation!6. The owner of a dog who, through any act or omission, negligently permits his or her dog to bite a person, service dog, guide dog or hearing dog causing physical injury shall be subject to a civil penalty not to exceed four hundred ONE THOUSAND dollars in addition to any other applicable penalties.7. The owner of a dog who, through any act or omission, negligently permits his or her dog to bite a person causing serious physical injury shall be subject to a civil penalty UP TO A CLASS E FELONY PUNISHABLE BY A FINE OF not to exceed one FIVE thousand five hundred dollars in addition to any other applicable penalties. Any such penalty may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.8. The owner of a dog who, through any act or omission, negligently permits his or her dog, which had previously been determined to be dangerous pursuant to this article, to bite a person causing serious physical injury, shall be guilty of a misdemeanor CLASS E FELONY punishable by a fine of not more than three FIVE thousand dollars, or by a period of imprisonment not to exceed ninety days TWO YEARS, or by both such fine and imprisonment in addition to any other applicable penalties. Any such fine may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.15. ANY PERSON FOUND TO BE IN VIOLATION OF SUBDIVISION SIX, SEVEN OR EIGHT OF THIS SECTION AND WHO HAS EVER BEEN CONVICTED OF ANY FELONY OFFENSE UNDER TITLE H OF PART THREE OF THE PENAL LAW SHALL BE SUBJECT TO FURTHER INVESTIGATION, INCLUDING, BUT NOT LIMITED TO A SEARCH OF SUCH PERSON'S PERSONAL AND REAL PROPERTY AND THE SEIZURE OF ANY ILLEGAL MATERIALS.

Related Statutes

• §123-a Exemption from civil liability for destruction of dog during an attack.

• §123-b Creates an enhanced civil penalty for owners where their dog attacks a service animal.

Sample municipal provisions

• See handout page 43 for the Albany City code provisions for animals kept within the City limits.

• www.generalcode.com• Your local municipal office or law library.• Municipal websites often have updated codes.

Local Law Preemption§ 122. Local laws or ordinances

1. Any municipality may enact a local law or ordinance upon the keeping or running at large of dogs and the seizure thereof, provided no municipality shall vary, modify, enlarge or restrict the provisions of this article relating to rabies vaccination and euthanization.

2. Such local law or ordinance may:

(a) impose penalties for violation of such restrictions to be recovered in a civil action in the name of such municipality;

(b) provide for enforcement by fine or imprisonment for any such violation; or

(c) provide for the issuance pursuant to the criminal procedure law ? of an appearance ticket, or in lieu thereof, a uniform appearance ticket, or in lieu thereof, a uniform appearance ticket and simplified information, as provided in section one hundred fourteen of this article, by any dog control officer, peace officer, acting pursuant to his special duties, or police officer, who is authorized by any municipality to assist in the enforcement of this article for any such violation.

Due Process – Property Interest

• City denied dog owner due process in reaching a decision to euthanize dog, and carrying out the euthanization prior to owner receiving notice of decision. Court held that the owner had a significant property interest in the dog as the dog provided love, companionship and friendship. The Court also found that there was a significant risk for an erroneous depravation of property as the hearing was not held before a judge and the hearing officer’s decision did not include a written decision which would have allowed the owner to appeal. Van Patten v. City of Binghamton, 137 F.Supp.2d 98 (2001).

The Client• Retainer Agreement• Clearly define role (will retainer encompass appeal or

trial or just a “plea”).• Manage client expectations.• Detail the risks of the “dangerous dog” label, both for

future civil liability and a future dangerous dog hearing.• It is a court of law, not a court of justice.• How much justice can you afford.– In a he said / she said with no witnesses, you WILL need

(should have) an expert. In all other cases its not a bad idea….

The “plea bargain”What to expect when you get to court.

• Sign in with the clerk, ask who is prosecuting the dog cases. (Town Attorney, DCO, Local Police, etc.)

• Meet with client, explain the process, court room protocol, how long they will be there, where you will be, etc.

• Meet with opposing counsel, attempt to reduce the charges out of §123 to a local ordinance or get the charges dismissed.

• Discuss plea with client and submit plea memo to Judge.

Case study – “Mark’s” case• Found at pages 4-14 of the materials• Brought under former 121• Lab mix named “Mia” accused of biting and causing physical

injury on one occasion – June 21st and a fall and broken hip on July 10th

• Both injuries were to the same person• Also charged with three failure to license under local law.• A negotiated disposition of no finding by the court of a “serious

injury”, owner to construct a fence and keep dog on leash at all times.

• No finding of liability for medical expenses and petitioner signed a general release preventing a future civil suit.

Dealing with the Judge• These cases can be “hot button” cases with

local communities.• If a child is bitten, often entire streets or people

will show to the hearing. This puts pressure on the judge.

• Emphasize “owner training” and “victim’s” right to commence a civil action to judge (do this at the bench away from the “victim” of course).

• Conditional pleas are very attractive to Judge, as they stay in control of case. Offer to keep Judge updated every 30 days, etc….

Dealing with the Judge

• Judge in Village and Town Courts are often not lawyers. The are often unfamiliar with the details of the Agriculture and Markets Law.

• Lawyers often don’t appear in Dog cases.• Don’t intimidate the Judge, guide her through the

process at the bench or in chambers (especially if prompted). Never correct her on the law in front of the courtroom. She will appreciate your tact, and you, not the Town attorney become the “expert”.

The Trial• Subpoena witnesses, include the DCO, force

the Town Attorney to prosecute the case, you may get the “plea” you wanted.

• Get your expert.• Prepare a trial brief. (Standard of Proof and

Burden of Proof).• Make the DCO your witness, talk to her before

the hearing.(Did she see the attack? I doubt it). (She probably talked at length with the victim though).

The Trial

• Focus on owner’s knowledge of dog’s propensities (this should match your brief).

• Try to place the dog in one of the Affirmative Defenses under the law, if possible.

• Use your expert (the Town won’t have one).• Close with the law, emphasize the law to the

judge, she may not know it…..and you are the “expert”, remember.

The Trial

• Was the bite a playful “snap”, accidental or spontaneous? Or prolonged, vicious and unprovoked? Application of Fugazy, 82 Misc2d 135 (1974).

• “Attack” is any overt action by the dog tending to cause reasonable apprehension of harm or injury to the person, together with the apparent ability in the dog to inflict the harm”, Univ. Towers Assoc. v. Gibson, 18 Misc3d 349 (2007).

Procedure and Proof• Village justice cannot issue dispositional order (must be a town justice).

People v. Beauvil (Justice Court, Village of Westbury 2008). I recommend that everyone read this case for an excellent overview of the dangerous dog statute from the perspective of a Judge who “gets it”. (materials page 98)

• Although the conduct of the owner most often results in the harm, evidence of a owner’s behavior including allegations of alcohol, drug abuse and his frequent brandishing of weapons was held to be irrelevant and inadmissible in such a case, Morse v. Colombo, 31 AD3d 916 (3rd Dept. 2006).

• A proceeding under §123 (former 117) is neither civil nor criminal, but a special proceeding of a civil nature. In Re: Foote, 129 Misc2 (1927).

• Civil Proceeding and the standard of proof is preponderance of the evidence rather than proof of danger beyond a reasonable doubt. People ex. Re. Laborie v. Habes, 52 Misc2d 768 (1967), see also, Gindalone v. Zepieri, 86 Misc2d 79 (1976).

• “Negligence” as used in dangerous dog statute is defined as a failure to use that degree of care that a reasonable person would have used under the same circumstances, which gives rise to proximate injuries which are reasonable foreseeable. Christensen v. Lundsten, 21 Misc3d 651 (2008).

Remedies• Court cannot order banishment, Town of Huntington v. Mazzone 17

Misc3d 546 (2007).• Breed specific legislation outlawed by Ag and Markets Law §107(5),

however, a dog’s breed while not being sufficient by itself to establish recklessness can be considered in the overall analysis of the dogs viciousness Loper v. Dennie 24 AD3d 1131 (3rd Dep’t 2005).

• An “attack” can be a bite, growls, barred teeth, aggressive running, etc… (DO NOT NEED A BITE!!!) University Towers v. Gibson 18 Misc3d 349 (2007), etc…

• Serious physical injury must be “serious” as in a motor vehicle threshold issue. Bite wounds and a torn hamstring with a 8 week PT prescription is not “serious”, People v. Jornoz, 881 NYS2d 776 (4th Dep’t 2009).

Remedies

• Court cannot resolve issues of negligence as the petition does not plead or assert the prima facia elements of negligence and the petitioners did not request a civil penalty, especially where the owners did not have an opportunity to rebut a negligence claim. Christensen v. Ludsten, 863 NYS2d 886 (2008).

Remedies

• Known vicious propensity to support euthanization was not shown where dogs barked and lunged in plaintiff’s direction. No serious injury existed to support euthanization. People v. Jornov, Id.

Motion to Vacate Judgment

• Can be used when the client retains an attorney after the hearing.

• Difficult to get Judge to agree to reopen case, especially after a hearing has been had with witnesses summoned, etc.

Case study – “Michael’s” case• Found at pages 41-42 of the materials• Dangerous dog determination after client’s dog attacked a goat.• Client, unrepresented at the time, consented to a dangerous dog

determination.• Judge permitted the judgment to be vacated upon oral motion to

allow an amendment to the Order removing the requirement that the dog only be walked by a person over the age of 21 or older, also removed the requirement that the animal be muzzled.

• Argument that the Order was unlawfully issued as it discriminated based upon age, also the Order could not be complied with by the client as he was under 21 years old at the time.

Case study – “Mikhail’s” case

• In materials at pages 15 through 30• Attorney hired post-judgment and in connection with a “at

large” ticket in 2009.• Town attorney was attempting to utilize the at large ticket

as a basis for euthanization due to the prior dangerous determination.

• Dangerous dog finding in 2008 after hearing.• Client who could not read or speak English signed a

consent, after trial, to a dangerous dog determination.• After many court appearances, behavior analysis of the

dog in question and obedience school the charges were dismissed on the consent of the town attorney.

APPEALS

“This would be a nifty argument if there was a procedural basis to raise it, a legal basis to advance it, and a factual basis to support it.”

First Alabama Bank v. First State Insurance Co., 899 F2d 1045 (1990).

The Appeal and Stay - §123(5)5. (a) The owner of a dog found to be a “dangerous dog” pursuant to this section may appeal such determination, and/or the court's order concerning disposition of the dog to the court having jurisdiction to hear civil appeals in the county where the “dangerous dog” finding was made. The owner shall commence such appeal by filing a notice of appeal with the appropriate court within thirty days of the final order pursuant to this section. Court rules governing civil appeals in the appropriate jurisdiction shall govern the appeal of a determination under this section.(b) Upon filing a notice of appeal from an order of humane euthanasia pursuant to this section, such order shall be automatically stayed pending final determination of any appeal. In all other circumstances, the owner of the dog may make application to the court to issue a stay of disposition pending determination of the appeal.

• Take the extra step to get the Order and serve it on opposing counsel, the facility holding the dog and the DCO.

Taking the Appeal

• The rules for appealing from the City, Town and Village Courts are different than those for an appeal from Supreme Court.

• KNOW THE RULES!• Short timelines within which to act.• Consider and know if your local court will follow

the Rules of Criminal Procedure for the appeal! Object! Civil Rules should apply.

• Sample forms starting at page 64 of the materials.

• Civil Appeals from certain lower Courts are taken to the Appellate Term in the First and Second Departments and to the County Courts in the Third and Fourth Departments.

• Other than County Courts, all of the Trial Courts are regulated by a Court Act.

• In New York City Civil Court, it would be the New York City Civil Court Act.

• City Courts outside of New York City, it’s the Uniform City Court Act.

• In District Courts, it’s the Uniform District Court Act and;• For the Town or Village Justice Courts, it’s the Uniform

Justice Court Act.

The Acts in General

• In general, these Acts adopt the practice and procedure pursuant to Article §55 of the CPLR except as may otherwise be specified in the particular Court Act of local rule which applies to your jurisdiction. Essentially, however, the same steps apply as would in perfecting an appeal from a Final Order or Judgment in Supreme Court to the Appellate Division.

Basic Steps in Taking an Appeal

1. Obtaining and filing the transcript.2. Preparing, serving and filing record on

appeal. 3. serving and filing the Appellants and

Respondents respective briefs. 4. Placement of the appeal on the Appellate

calendar. 5. Argument or submission of the appeal.

Perfection

• The procedure for perfecting an appeal to a County Court from a Town or Village Court varies in each of the counties in New York State.

• Its always a good idea to consult with the Clerk of the County Court to determine whatever procedures may be applicable in your county. This is particularly so with respect to the record on appeal.

Perfection con’t

• The City Court Clerk make and files a return with the County Court Clerk pursuant to Section § 1704 of the Uniform City Court Act after the Appellant serves and files a notice of appeal with the City Clerk’s Office.

• At this point the Appellant must order the transcript from the stenographer and pay any required transcription fees.

• Typically, a stenographer will require a deposit advanced against an estimate of time required to produce the transcript.

• The stenographer is required to furnish the original transcript of the minutes to the City Court Clerk within ten days after payment of the fees.

Bored yet?

Perfection con’t

• On receipt of the transcript the Clerk will then send Notices of Receipt to the attorney for the Appellant fifteen (15) days thereafter. The Appellant must make any proposed amendments and serve those amendments together with a copy of the transcript upon the Respondent. Thereafter, within fifteen (15) days the Respondent has the opportunity to make any proposed amendments or object to the proposed amendments of the Appellant and to serve those on Appellant’s counsel. Thereafter, the Appellant obtains settlement of the case on a written notice of at least four (4) days to the Clerk and to the attorney for the Respondent, which is returnable before the Judge who tried the case.

Case study – “Debra’s” case, or is it “Paul’s” case, or is it “Debra and Paul’s” case?

• Shows the importance of having all the facts before acting.

• Pro Bono case• Client calls shortly before the 30 days runs to appeal a

stipulated disposition where the client was represented by counsel. Client brings only the charging tickets which list her as the owner. Notice of Appeal is hastily prepared and served.

• Actual Order and Judgment are directed at her boyfriend who actually owns the dog. This is received by counsel after the 30 days has run.

• Amended Appeal is filed on consent.• While Appeal is pending, client is alleged to

have not complied with the Court’s Order and a motion is made by the Town Attorney to restore the case to the calendar and to reinstate the local law charges which had been Adjourned in Contemplation of Dismissal (ACOD) for six months.

• Subsequently the charges were able to be reduced to a single charge of failure to license.

• The Appeal is still pending….

"Animals and Negligence" - What every attorney should know.

Types of Negligence Cases

• Vet Malpractice• Property Damage• Premises Liability• Automobile Accidents • Bites (most common)• Negligent Supervision• Failure to Warn• Falls from Horses (second most common)• Kicks

Elements of Negligence

• Duty• Breach of Duty• Proximate Cause between injury and action• Damages

Vicious or Dangerous Propensities

• In New York a cause of action exists in strict liability, with no proof of negligence required on part of the plaintiff, where a person keeps (harbors) an animal with notice of the animal’s vicious propensities and such animal injures a plaintiff.

• This liability is imposed regardless or ownership.• The plaintiff is required to present proof that the

defendant had knowledge of the vicious propensity or that a reasonable person would have discovered it – Palumbo v. Nikirk, 59 AD3d 691 (2nd Dep’t 2009).

Allegations• A complaint should allege:– Facts;– Statement that the defendant knowingly harbored the animal;– Statement that the defendant had knowledge of the propensities;– Statement that the defendant should have had knowledge of the

propensities;– Statement that the animal injured the plaintiff;– Statement that the plaintiff was lawfully on the defendant’s

property, in a public place or lawfully on other property;– Statement that the injury rendered the plaintiff sick, sore, lame,

etc..– Spousal or other derivative claim.

Affirmative Defenses

• An affirmative defense can be asserted which states that the defendant was not keeping or harboring the animal.

• An affirmative defense can be raised that the animal was being tormented, teased or abused – Leiner v. Fist Wythe Ave. Service Station, 121 Misc. 2d 559 (NYC City Ct. 1983), affirmed, 127 Misc. 2d 794.

• An affirmative defense can be raised that the plaintiff himself had knowledge of the animal’s propensities and brought the injury upon himself – Seiden v. A. Silmac Glass Co., 251 AD2d 141 (1st Dep’t 1998).

• Express and implied assumption of the risk should be raised. CPLR 1411 and 3018(b).

Summary Judgment – Owner’s lack of knowledge

• Animal’s breed is not automatically determinative of viciousness – Rivers v. NYC Housing Authority, 264 AD2d 342 (1st Dep’t 1999).

• Behavior which caused injury was not inherently vicious. Horse that was known to be difficult to handle, for example – Timpanaro v. Topping Riding School, 575 NYS2d 933 (1991).

• Animal has never shown vicious propensities or the animal’s past behavior does not amount to a vicious propensity (barking at neighbors)

• Natural reaction on part of animal is not a vicious propensity. Cat will bite when grabbed by the scruff of the neck – Wignes v. Bottger, 518 NYS2d 936 (1987).

• Complaint was dismissed in action to recover for injuries sustained from dog bite since bite alone, without provocation, and breed alone, was not sufficient to raise question of fact as to vicious propensities; defendant and his girlfriend testified that they did not experience any problems with dog prior to biting, and specifically that dog did not display any act of aggression immediately prior., Malpezzi v. Ryan, 28 AD3d 1036 (3rd Dep’t 2006).

• Whether or not the owner knew of the animal’s propensities should be viewed and presented as an issue of fact (especially if you have the plaintiff).

Direct contact with animal not necessary for liability to attach

• Example: Vicious dog is chasing a person who runs into a road to avoid the dog and is struck by a car.

• Polard v. United Parcel Service, 302 AD2d 884.

Can you / should you plead negligence?

• There is a split between the departments as to whether a plaintiff can recover for ordinary negligence .

• First and Second Departments permit recovery. Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t 2000) and Colarusso v Dunne, 286 AD2d 37 (2nd Dep’t 2001)

• Third and Fourth do not.• Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003)

describes these differences.

• Courts have held that in limited circumstances a theory of recovery for ordinary negligence may permit recovery.

• Must be a distinct act that the defendant should have done or not done or a special enhanced duty of care.

• For competing views of claims for injuries caused by agricultural animals compare St. Germain v. Dutchess County Agriculture Society, 274 AD2d 146 (2nd Dep’t 2000) and Bard v. Jahnke, 16 AD3d 896 93rd (3rd Dep’t 2005).

• Colarusso v. Dunne, 286 AD2d 37 (2001). Child bitten by 75lb dog which was permitted to freely wander around owner’s daycare facility. Issue of fact existed as to whether infant’s actions and dog’s response were foreseeable.

• Note, a child under 4 years old is incapable of being responsible for his or her own actions, as a matter of law, and the jury may be so instructed. Smith v. Sapienza, 115 AD2d 723 (2nd Dep’t 1985).

“Beware of Dog” Signs

• Beware of Dog signs without more, or a prior determination, does not establish a propensity for dangerousness, especially in the Third Dept., Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003) and Smedley v. Ellinwood, 21 AD3d 676 (3rd Dep’t 2005).

• Jury may consider the sign, but it is not sufficient by itself to create a propensity. The same applies for animals that are chained or caged on a routine basis.

Premises / Landlord Liability• Landlord who is aware of vicious propensities has a duty to

protect the public from the animal. Bates v. Constable, 4 Misc3d 810 (2004).

• A tenant who harbors a dangerous dog, even for security purposes, will be held strictly liable to third persons for injuries, as will a landlord who has leased the apartment with knowledge of the propensities and does nothing to protect the public. Strunk v. Zoltanski, 62 NY2d 572 (1984).

• If the landlord has no knowledge, actual or constructive, there is no liability imposed. Meyers v. Haskins, 140 AD2d 923.

• Liability will not be imposed on the landlord where the attack occurs off the rented premises. Terrio v. Daggett, 208 AD2d 1163.

Transfer of ownership

• No liability will attach to a prior owner for injuries caused post-transfer IF the owner informed the person of the animal’s dangerous propensities.

• Hosmer v. Carney, 228 NY 73.

Every dog gets one bite theory

• Not in New York• Perrotta v. Picciano, 186 AD 781 (1st Dep’t

1919) and its progeny.

Breed or type “discrimination”

• Evidence of the inherent propensities of one particular breed of animal is inadmissible, Bohm v. Nystrum, 208 AD2d 668 (dog).

• Landes v. H.E. Farms, Inc., 169 AD2d 446 (horse).

• Bard v. Jahnke (bull).

Farm Animal Negligence

• A case of negligence can be made and maintained against the owner of a horse or cow which is unsupervised or uncontrolled on a public road, where the animal causes damage to or collides with a person or vehicle. Johnson v. Waugh, 244 AD2d 594 (3rd Dep’t 1997).

• Theory being that horses do not wander on roadways absent negligence.

• Presumption is rebuttable if it is shown that the animal’s wandering is not caused by the owner’s negligence.

Wild Animals and Negligence

• Owner or keeper of a wild animal has an absolute duty to prevent animal from injuring persons or property.

• Exemptions exist for common carriers and municipalities or society charged by the legislature to maintain a zoo (does not apply to a zoo run for profit).

• Reasonable care is the standard for these exceptions.

Questions