Full Case Name:  Laura M. Bermudez, Plaintiff, v. Joseph Hanan, Defendant.

This opinion is uncorrected and will not be published in the printed Official Reports.

*1 Laura M. Bermudez, Plaintiff,
v.
Joseph Hanan, Defendant.

38/12

Civil Court of the City of New York, Kings County

Decided on September 13, 2013

Decided on September 13, 2013

CITE TITLE AS: Bermudez v Hanan

ABSTRACT
Animals
Liability for Animal Bite
Knowledge of Vicious Propensity

Bermudez v Hanan, 2013 NY Slip Op 51610(U). Animals—Liability for Animal Bite—Knowledge of Vicious Propensity. (Civ Ct, Kings County, Sept. 13, 2013, Thompson, J.)

APPEARANCES OF COUNSEL
Plaintiff Pro-Se
Defendant Pro-Se

OPINION OF THE COURT

Harriet L. Thompson, J.

In this Small Claims action, the Claimant asserts the right to recover monetary damages for medical bills and related expenses that she incurred as a result of personal injuries sustained from a dog bite by a dog named Chino owned by the Defendant.

At a non-jury trial, both parties and their respective witnesses testified about the surrounding facts that precipitated the dog bite and introduced into evidence both photographic and documentary evidence as well as testimonial evidence.

The underlying facts, as presented at trial, disclosed that the Claimant's personal injuries took place at a small social event at the home of the Defendant. On February 10, 2010, the Claimant, along with more than 15 other people, were invited to the home of the Defendant for a social gathering. The event took place on the first floor of a Brooklyn brownstone. Both parties testified that the music was not too loud and none of the guests were required to shout over each other indicating a relatively relaxed atmosphere.

The Claimant testified that she mingled with other guests for a while and then entered into what appeared to be the living room area on the first floor. She observed that a large dog was sitting on the couch alone and she decided to walk over to the couch. She testified that as she walked over to the dog, she had no food in her hand with the exception of a beverage. She claimed that after she reached the couch, as she leaned over to talk to the dog, he jumped up and bit her on her face causing serious injuries to the left side and right side of her chin.

The Claimant testified that her lacerations required 30 stitches in her chin. She also testified that she underwent treatment for the wound and after it healed, she had restorative treatment in the form of plastic surgery to correct the scars on her chin. She testified that her primary doctor, Dr. Meehan treated her wounds and the plastic surgery was performed by Dr. Pittman to eradicate the scars.

The court admitted into evidence as Claimant's Exhibit “1”, twenty-one (21) photographs that depict the face of the Claimant on the date of the incident and her face about one week after the *2 incident; the photographs show deep and gaping lacerations to the right and left side of the chin of the Claimant. The Claimant subsequently had admitted into evidence as Exhibit “2” an itemized statement of the total costs and expenses that she incurred as a result of the dog bite.

Additionally, she gave this court a file that contained the supporting doctor bills, invoices, receipts and correspondence between her and an attorney about the case. The itemized list and the aforementioned documents demonstrate that the following sums where incurred by the Claimant:

ł Kings County hospital bill-$1002.43 ł Bill from Dr. Meehan-$165.00 ł Bill from Dr. Pittman-$450.00 ł Prescription Medication-$106.90 ł Miscellaneous medical supplies-$102.46 ł Transportation-$63.17 ł Loss Wages-$4500.00

The Claimant demands restitution in the sum of $6,390.04 which exceeded the jurisdictional limits of the Small Claims Part. After a court conference, the Claimant elected to continue the trial instead of commencing a new action in the Civil Court and waived the rights to recovery of any sum exceeding $5000.00.

The Claimant further testified that she was a freelance editor for films and for some commercial projects from August 2009 to the present. She stated that Dr. Meecham, her treating physician, stated that she could not work for a period of two weeks. She claimed that since she was unable to speak to her clients, she lost significant income in the of sum of $4500.00.

The Claimant also testified that at the time of the incident, she was uninsured and had no medical coverage for the medical services that she incurred from the dog bite.

Despite the Claimant's testimony that she approached the dog while he was sitting on the couch alone, she stated that she did nothing to provoke the dog's attack. In her opinion, she did not think that the dog felt comfortable' at the party. The Claimant asserts that she is now deathly afraid of dogs as a result of this incident and feels that such a fear of dogs will be a part of her life for the rest of her life.

The Claimant called William Rick as a corroborating witness. Mr. Rick stated that the incident occurred very quickly. He was near the Claimant and then suddenly the dog acted so quickly that it was like “a burst of air”; he stated that he never heard the dog growl or even bark. He acknowledged that he was not an eye witness to the facts immediately before the incident but saw the lacerations on his friend's face from the dog bite. Once he observed the blood streaming from the Claimant's face, he ran toward the kitchen for help.

After this witness testified, the Claimant rested on her case-in-chief and claims the rights to recovery of all of the above medical expenses and income.

The Defendant, JOSEPH HANAN, testified in his case-in-chief. It is undisputed that the incident took place in the Defendant's brownstone and that the Defendant was not present in the livingroom area at the time of the incident. He stated that he was in the kitchen preparing food and speaking to other guests.

The Defendant testified that he trained Chino, a part German Shepherd, for nearly ten years, *3 and he has never had any incident in which the dog bit or injured any person or property.

In his opinion, that is substantiated by other individuals, Chino is a “special dog”.

In or about 2008, Chino was certified by the Good Dog Foundation to visit healthcare facilities as a therapy dog. He testified that the dog is a visiting volunteer for several not-for-profit agencies and participates in animal assisted therapy. He testified that Chino visits these various centers at least three to four times a week. Although the dog belonged to the Defendant's partner, Kara McEneany, he was the primary trainer of the dog.

The Defendant introduced into evidence eleven photographs (Defendant's Exhibits “1” through “11”) which depict Chino with various men on the men's medical unit at the Brooklyn Development Center for Disabled Men. The photographs depict these various men holding, petting, laughing and playing with Chino at the Brooklyn Development Center.

Furthermore, the Defendant introduced into evidence Defendant's Exhibit “2,” a letter, dated July 1, 2008, from Annie Angell, Executive Trainer and Program Coordinator of the Good Dog Foundation, which certifies that Chino had successfully completed the “Good Dog Foundation Therapy Dog Training and Evaluation Course” and was “certified to visit healthcare facilities as part of a therapy dog team”.

The dog was first certified on July 1, 2008; the certification at that time was valid for six (6) months. Subsequently, the volunteer team including Chino was re-certified on an annual basis. This court admitted into evidence additional proof that the certification was valid from August 13, 2011 through July 31, 2012.

The Defendant further testified that the dog goes to hospitals throughout the city of New York. He also visits and comforts senior citizens that are frail and have Alzheimer's disease. More significant, when the dog is brought to these facilities, he is always allowed to roam freely from patient room to room and other public areas, and freely interacts with the residents in the senior citizens centers as well as the Adult Development Center for the disabled.

Lastly, this court granted the Defendant leave to submit copies of various email(s) dated April 30, 2012 and May 1, 2012 in which various individuals, 15 in total, attest to the quiet and obedient nature of Chino and attest to his exemplary behavior at other gatherings at the home of the Defendant. These statements specifically describe the friendly and gentle demeanor of the dog at those parties where various guests interacted with the dog by petting his head and allowing the dog to lick them on their faces and their hands. Most of the statements attest to the nature of the dog as “well-mannered, well-trained, patient and a kind-hearted dog”. He was called a “sweet nature” and a “sweet temperament” dog particularly since he is an older dog.

The Defendant and his witness, Ms. McEneany, the owner of Chino, both asserted that the dog had a calm demeanor, never aggressively approached any strangers and never demonstrated any anxiety or aggression.One of the corroborating statements claimed that they never observed the dog even bark. Moreover, one of the statements, namely from Christopher Chuang, stated that he used Chino in three production films. He states that the dog is obedient and had never disobeyed one single command from the Defendant at the film locations. He never observed the dog in a single act of aggression. Nearly everyone agreed, including the Defendant and his witness, that Chino is incredibly gentle around children, smaller dogs and other animals.

Both testified that Chino stayed with others when the Defendant and her were absent and *4 thus, unsupervised by him, and was never informed of any incident with Chino. The Defendant further testified that he also boarded the dog from time to time when he traveled and he has never been notified of any problems with the dog.

The Defendant's sister, also a claimed co-owner of Chino, indicated that the dog resided with her from June 2006 to October 2006. She lived in an apartment building that is filled with “rambunctious children, elderly tenants, wild college kids and everything in between.” During the time that he co-occupied the apartment with her, she never had any incident in which he acted out of character; many of her friends begged to take the dog for a walk, neighbors stopped by to say “hi” to the dog and other dog owners set play dates with Chino and their dogs. He was quite a popular dog in her apartment complex.

In fact, other witnesses confirmed that they wrestled with the dog, chased the dog, played tug-of-war with the dog as well as played with dog toys with the dog. At no time was the dog not gentle, sweet-spirited and well-behaved. In some instances, even with provocation, the dog maintained his composure and never acted openly aggressive and never harmed any individual. Most notably of all of the statements, nearly all individuals were in accord, that even when the dog was around a lot of people, he stayed calm and stayed near the Defendant or stayed where he had one of his toys.

The Defendant also indicated that he has had many parties at his home and there were never any incidents with Chino. During the time that there were parties at the house, music was playing, the lights were often dim and the dog was permitted to roam freely among his guests. The Defendant as well as his corroborating witness also testified that despite the presence of many people going in and out of the first floor of the building, they never observed the dog bark or even jump up on any of the guests entering and leaving their home.

Lastly, the corroborating statements from the various witnesses further supported the Defendant's testimony that the Defendant was a very responsible dog owner who, not only cared for and trained Chino, but their dogs as well.

The Defendant argues that based on the above testimony and statements of others, he should not be held liable for the medical expenses and other related expenses of the Plaintiff.

In rebuttal, the Claimant states that the dog “nipped at her feet” and other guests as he roamed through the apartment. The Defendant vehemently denied that allegation.

After submission of all of the evidence from both parties, this court reserved decision.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The legal research conducted by this court revealed a startling number of cases involving dog bites and domestic animal attacks in the State of New York. The case authority, as discussed below, unveils a rule of law in animal attacks and injuries which spans the time of over 188 years. A brief history of those major cases is important for both litigants in this case to understand the rule of law in this state.

This court is mindful of the fact that this is a Small Claims case involving parties that are not represented by counsel. However, it is the obligation of the undersigned as a member of the judiciary to provide the cases that formulate the basis for the determination in this case. To that end, the discussion below sets the stage for a determination in this case.*5

For more than 188 years, the law of this state has been that the owner of a domesticated animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm that the animal causes as a result of those propensities (see e.g. Vrooman v. Lawyer, 13 Johns 339 [1816]; see also Hosmer v. Carney, 228 NY 73, 75, 126 N.E. 650 [1920]; see also Restatement of Torts, Sec. 509 [Second].

According to our highest appellate court, the Court of Appeals, there are two elements which must be established to hold the pet owner liable for damages. First, the animal must have “vicious propensities” which the court first defined as the “propensity to do any act that might endanger the safety of the persons and properties of others in a given situation” (Dickson v. McCoy, 39 NY 400, 403 [1868]). Second, the owner must have knowledge of the “vicious propensities” which may be established by proof of a prior act of a similar kind of which the owner had notice (see Benoit v. Troy and Lansingburgh R.R. Co., 154 NY 223, 225, 48 NY 523 [1897]). To establish knowledge of “vicious propensities” -- even in the absence of proof that the dog had actually bitten someone -- the claimant must show that the animal had been known to growl, snap or bear its teeth. In addition, the courts have found it relevant and significant whether the owner chose to restrain the dog, and the manner in which the dog is restrained (see Hahnke v. Friederich, 140 NY 224, 226, 35 N.E. 487 [1893]; see also Rider v. White, 65 NY 54, 55-56 [1875]).

In reviewing the cases of Hahnke v. Friederich, supra, the court also stated that keeping a guard dog may give rise to an inference that the owner had knowledge of the dog's vicious propensities (Hahnke, 140 NY at 227, 35 N.E. 487).

The Court of Appeals, in the well known case of Collier v. Gambito, et al., 1 NY3d 444, 803 N.E.2d 254, 775 N.Y.S.2d 205, presented the long history of this rule of law in our courts and held for the pet owner. The facts in that famous case were somewhat simple. The Defendant's had a mixed breed dog that was a family pet. The dog was normally confined in the kitchen area behind a gate when the Defendants were away and when visitors came, the dog would bark. On the night in question, a guest, a child around 12 years old, a friend of the Defendant's son, came to celebrate the New Year. The evidence revealed that the child had been to the house on several occasions and was familiar with the dog and the dog was familiar with him. On this night, the child, named Matthew, came downstairs to use the bathroom and the dog began to bark. The Defendant put the dog on a leash and when the child came from the bathroom, she invited him to approach the dog to allow the dog to smell him as the dog knew him from previous visits. As the boy approached, the dog lunged and bit Matthew's face. There was no dispute that the dog's attack was unprovoked.

The parties testified that the Defendants had no knowledge that Cecile, the dog, had ever previously threatened or bitten anyone. As the case proceeded through the Appellate process, the Supreme Court found that the Defendant's implied knowledge of the dog's vicious propensities could be inferred from the Defendant's confinement of the dog in the kitchen. The Appellate Division found that the Plaintiff failed to prove that Defendant was aware or should have been aware of their dog's alleged vicious propensity relying on well-established case authority. The court further found that there was no evidence that Cecile actually had vicious propensities of the type that resulted in the child's injury.

The majority specifically stated that “in addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious but nonetheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities -- albeit only *6 when such proclivity results in the injury given rise to the law suit.” The majority firmly asserted that there was nothing in our case law that suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to infer that the dog had vicious propensities. In the opinion of the majority, the only reason that the dog was confined was that he barked when guests came and there was no evidence that the dog's behavior was ever threatening or menacing. “Indeed, the dog's actions -- barking and running around -- are consistent with normal canine behavior. Barking and running around are what dogs do.”

As equally important, “the fact that the owner invited Matthew to approach the dog which seemed to demonstrate that she did not conceive of the possibility that the dog would attack the boy” is evidence that the owner did not have knowledge that the dog had vicious propensities. “Plaintiffs are not unduly burdened by the requirement of proof that a Defendant knew or should have known of an animal's vicious propensities. When such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities (Struck v. Zoltanski, 62 NY2d 572, 575-576, 497 N.Y.S.2d 175, 468 N.E.2d 13 [1984])”.

The majority made it clear that the decision in that case does not entitle dog owners to an automatic “one free bite”. There could certainly be circumstances where, although a dog has not yet bitten a person, its vicious nature is apparent. In that situation, the owner's success in keeping the dog confined or restrained in the past would not insulate the owner from liability.“ The court's ultimate finding was that the behavior exhibited by Cecile in this particular case simply did not rise to that level and dismissed the complaint.

Two Justices dissented and would have voted to affirm the finding that Plaintiff raised an issue of fact as to ”whether Defendant knew or should have known of Cecile's dangerous propensities and, if so, whether the Defendant was negligent in initiating the contact between Plaintiff's son and Cecile“.

One of those Justices, Judge Bundy Smith, specifically stated that notwithstanding the fact that Cecile did not bite or threaten anyone, the nature of the attack, in and of itself, was significant. He relied on the fact that it was an unprovoked attack and even with the Defendant beside him, Cecile lunged straight for Matthew's face after barking at him causing a serious injury. Moreover, according to Bundy Smith, the manner in which Defendant confined Cecile could reflect an awareness that Cecile posed a threat to visitors. ”Of course animals run around and bark but not all dogs are kept away from visitors simply because they run around and bark. One could reasonably conclude that Defendant simply did not want visitors to feel uncomfortable. But one could also reasonably conclude that the Defendant confined Cecile to the kitchen because they were aware of a potential danger.“ Notwithstanding the fact that Cecile never bit or threatened anyone, he stated that since Cecile was confined, she was never given an opportunity to do so. ”But on the one occasion when the Defendant did let Cecile out of the kitchen so that he could smell Matthew, Cecile attacked.“ Lastly, Judge Bundy Smith wanted the court to assess the level of threat posed by the dog due considerations must be given to the age of the victim. He wanted the case to go to the jury because he felt that the Defendant exposed a twelve year old to a dog who was kept away from him and visitors and constantly barked. He felt that the jury could also reasonably conclude that ”it was ill-considered in light of the attended risk of injury“.

In furtherance of our analysis, in the case of Czarneck v. Welsh, 13 AD3d 952, 786 N.Y.S.2d 659, our high court, once again reaffirmed the longstanding rule of law in this state which provides *7 that in the absence of actual or constructive knowledge of a dog's vicious propensities, a dog owner is not liable when it bites someone (Collier v. Zambito, supra;   Hagadorn-Garmely v. Jones, 295 AD2d 801 [2002].

In Czarneck, supra, the Defendant's 200 lb. Great Dane bit the Plaintiff. The court reversed the lower courts finding that since a witness indicated that the Defendant had bragged about the dog's protective conduct including one incident where the dog allegedly attacked one of his son's friends and ripped the coat right off him while pinning him against the car and another where the dog chased away someone who was near Defendant's vacation trailer, that the case should go the jury for deliberations. The court found that there was sufficient evidence to raise the triable issue of fact regarding the Defendant's knowledge of the dog's vicious propensities'.

In Campo v. Holland, 32 AD3d 630, 820 N.Y.S.2d 354 (App. Div., 3d Dept.), the Plaintiff was attacked and bitten on his right forearm by the Defendant's Labrador Retriever, Misty, while working on Defendant's property installing a water line. Although testimony provided that the dog jumped on visitors, barked at strangers and chased squirrels and birds in the yard, the court found such evidence insufficient to establish knowledge of vicious propensities. Moreover, although there were claims that ”Misty jumped on visitors due to her excitement and would then settle down“, the court found these acts insufficient evidence that such behavior establishes knowledge of vicious propensities and dismissed the underlying complaint.

In a very interesting case involving a hornless Dairy Bull, which fractured the ribs, lacerated the liver and exacerbated a pre-existing surgical spine condition of the Plaintiff, our high court, explicitly rejected the Plaintiff's and her animal expert contentions that bulls, by their very nature, are vicious and thus, any injury caused by bulls like the Defendant's, should be liable. Unlike other states which have established animal-owner liability and/or a common law cause of action for negligence, New York has completely rejected any negligent cause of action. Negligence can be stated as follows: the owner of a domesticated animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm or is negligent in failing to prevent the harm.

The court specifically stated that ”we have never, however, held that a particular breed or kind of domesticated animals are dangerous, and therefore when an individual animal of a breed or kind causes harm, its owner is charged with knowledge of its vicious propensities. Similarly, we have never held that the male domestic animals kept for breeding of female domesticated animals caring for their young are dangerous as a class. We decline to do so now or otherwise to dilute our traditional rule under the guise of a companion common law cause of action for negligence. In sum, when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier. Although there were extensive injuries to the Plaintiff in that case, the court declined to hold the Defendants liable and dismissed the complaint.

Be reminded that knowledge of the dog's vicious propensities may be established by proof of a prior bite; that the dog was restrained by its owner in a particular manner or that the dog showed other threatening or aggressive behavior, such as growling, snapping or bearing its teeth. In contrast, isolated or minor incidents indicative of “rambunctious behavior [will] show awareness of a vicious propensity only if it was that very behavior that resulted in the Plaintiff's harm”. Evidence of normal “canine behavior” such as barking and chasing small animals is insufficient.

For example, in Seybolt v. Wheeler, 42 AD3d 643, *8 839 N.Y.S.2d 830, (App. Div., 3d Dept., 2007), the court affirmed the Supreme Court's denial of a motion for summary judgment dismissing the complaint based upon an affidavit of the dog's Veterinarian and the Veterinarian's records from a specified time period which said that “patient is aggressive” and “tried to bite -- owner to muzzle!” There were two other instances in which the dog showed aggression towards a neighbor, backed the neighbor into the garage and started growling at him as well as testimony that the owner had actual knowledge of those events who “laughingly told this story to the neighbor.” The court found that only this type of prior knowledge and/or notice by the owner could create a triable issue of fact which would preclude summary judgment. The court wanted the matter to go to the jury for a determination as to whether or not those specific instances constituted notice of the vicious propensities for the owner to be held strictly liable.

In O'Brien v. Amman, 21 Misc 3d 1118 (A), 873 N.Y.S.2d 513 (Sup. Ct., Alleghany County, 2008), the court stated that “the oft-repeated aphorism ” every dog gets a free bite“ is not true. Though a dog may never have bitten anyone, still, if its owner knew it to be vicious, then even its first bite is not free. The reason is that it is the knowledge of the dog's propensities to bite, not just the proof of it, that gives rise to the owner's duty to take precautions, so that the foreseeable injury can be avoided”. In O'Brien, the court made it clear that the fact that a dog previously barked at people was insufficient to raise an issue of fact about the dog's viciousness. Now, the lunging of a dog, that is to thrust or propel as a blow as written in Webster, is sufficient to raise a question of fact as to the dog's vicious propensities.

The court, in citing Sorel v. Iacovucci, 221 AD2d 853 (3d Dept. 1965), determined that the lunging of a dog on many occasions could allow an inference that the dog's behavior was consistently and purposely aggressive. Thus, the court found that the Plaintiff's claim that the dog repeatedly lunged at her while being walked by the Defendant was sufficient to raise a question of fact as to whether the Defendant had actual or constructive knowledge of the dog's vicious propensities. In that case, since there was a question of fact as to the wife's knowledge of the dog's behavior, the Court dismissed the action against the husband but allowed the matter to go to the jury trial as against the wife.

In another recent case before the high court, the matter of Petrone v. Fernandez, 12 NY3d 546, 9110 N.E.2d 993, 883 N.Y.S.2d 164, the Court of Appeals found that the Defendant's violation of the New York City Local Leash Law, by allowing his dog to be unrestrained, did not provide a basis for imposing strict liability in a personal injury action brought by a mail carrier allegedly injured while fleeing from a dog. As the mail carrier came to the Defendant's home, a dog ran from the rear of the house. The mail carrier in an effort to escape harm from the dog, fractured his finger which got caught in the door handle of his vehicle. The violation of a local Leash Law evidenced only some negligence, whereas liability in cases involving harm caused by domestic animals may be established only under the rule of strict liability. The court was crystal clear that “the Defendant's violation of the Lease Law is irrelevant' because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability” after Collier and Bard. Thus, the case was dismissed.

In Meletich v. Kopp, 70 AD3d 1095, 895 N.YS.2d 558 (App. Div., 3d Dept., 2010) the appellate court found that the evidence that the Defendant routinely restrained the dog to keep the dog from running away does not support an inference that the Defendant was aware that the dog might pose a danger; nor does evidence that the dog was “nippy” or “territorial” when he was just *9 several weeks old give raise to a triable issue of fact as to the Defendant's liability. Once again, the court determined that the Chow Chow breed identified as potentially aggressive and the allegations that the owner was well aware of incidents of aggressiveness involving that breed does not, by itself, create an issue of fact regarding Defendant's knowledge of any vicious propensities in their dog. It was further found that the manner in which the Plaintiff was bitten does not support an inference that the dog was aggressive where Plaintiff never saw the dog until immediately before she was bitten and a police officer testified that the dog had been sleeping and was startled by Plaintiff's presence.

See also Smith v. Reilly, 17 NY3d 895, 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149 [2011] [proof that dog barked and ran toward the road is insufficient to raise a question of fact as to the dog's alleged propensity to interfere with traffic.]; Kreiger v. Cougar, 83 AD3d at 1553, 921 N.Y.S.2d 676 [Col's avoidance behavior was neither atypical nor a propensity that puts others at risk of harm]; Alia v. Fiorina, 39 AD3d at 1069, 833 N.Y.S.2d 761 [dog's tendency to run into the road was insufficient to raise a question of fact as to the dog's propensity to interfere with traffic]). Likewise see Vichot v. Day, 80 AD3d 851, 913 N.Y.S.2d 838 [App. Div., 3d Dept., 2011] where the appellate court held that there was no evidence that a domesticated horse which collided with the motorist in the public highways had the propensity to escape as required to subject the owner to strict liability; Rosenbaum v. Lauer, 80 AD3d 686, 915 N.Y.S.2d 136 (App. Div., 2d Dept., 2011) finding that there was a genuine issue of material fact as to whether or not the owner knew or should have known that the dog had vicious propensities in a case in which the dog's forearm became caught in the fence separating two adjoining property owners and the dog bit the Plaintiff while he attempted to free its paw from the fence. The court specifically finding that the dog had frequently trusted its head under the fence and growled, showing its teeth and snapped at the Plaintiff. Such testimony raises a question of fact as to whether or not the dog had vicious propensities that the Defendant knew or should have known. The complaint survived dismissal and would proceed to trial.

The Appellate Division, Third Department in Thurber v. Atmann, 91 AD3d 1257, 936 N.Y.S.2d 789 rejected arguments made by the Plaintiff that the Defendant's off-duty canine handler for the State Police attacked Plaintiff dog, a retired member of the K-9 Unit. The Plaintiff argued that the evidence of the severity of the attack, together with the dog's breed, formal police training and use as a guard dog should have put the Defendant on notice of the dog's vicious propensities and therefore, be held strictly liable. The court found that there was no support in the record for finding that the Defendant kept the dogs as guard dogs and were not convinced that the formal training that the dog received as members of the State Police K-9 Unit equates with the dog being kept as guard dogs. The majority said “ we [do not] find that the formal police training of the dog constitutes either evidence of viciousness or provide the Defendant with notice of such (but see Gannon v. Zonti, 86 AD3d at 705-706, 926 N.Y.S.2d 739). The court went further to find that not only is the evidence of the dog's breed insufficient to demonstrate an issue of fact exists, where, as here, there is no other evidence even suggesting that Defendant knew or should have known of the dog's alleged vicious propensity, consideration of the dog's breed is irrelevant.

The court finding that even viewing the evidence in the light most favorable to the Plaintiff, the attack did not raise an issue of fact as to the dog's vicious propensities and therefore, the court allowed the complaint to be dismissed.

This court must inform both parties that a number of states have statutorily eliminated the requirement that a Plaintiff prove that the dog owner knew or should have known of the dog's vicious *10 propensities. In adopting a strict liability approach, these states decided that dog owners, as opposed to wholly innocent victims, should bear the risk of dog ownership and any injury that is caused by the dog; those states are namely, Arizona, California, Florida, Michigan, Minnesota, Montana, Nebraska and New Jersey. Those states have changed the rule of law there, however, the rule of law here in the State of New York has not changed.

In light of the rule of law in animal attacks and injuries, I turn to the case at hand. It is irrefutable that the Plaintiff was injured by Chino, the Defendant's mixed German Shepherd breed dog.

As discussed above, this court allowed both parties to introduce into evidence all of their documents; some documents that would have been excluded under traditional evidentiary rules. It is well-settled case precedent that the rules of evidence are more relaxed in the Small Claims Court since many litigants appear without counsel. Therefore, with this general principle at the forefront, the court admitted into evidence the aforementioned emails of various individuals that attested to a well-tempered Chino. Likewise, this court allowed the Claimant to introduce into evidence her entire back up file in support of her expense statement.

Both parties agreed to the ease in movement of the guests throughout the first floor of the building and to the relatively low noise level at the event. The dog was not excited or agitated at the event notwithstanding the claims by the Claimant that she felt that the dog was ”uncomfortable“ around the guests.

The Plaintiff did not submit any evidence to prove that the Defendant knew or should have known of the animal's alleged vicious propensity. As provided above, knowledge of the animal's vicious propensity may be established by proof of prior acts of a similar kind of which the owner had notice. Evidence that the animal was known to growl, snap or bear its teeth as well as evidence that the owner chose to restrain the dog can be evidence that the owner had knowledge of the animal's vicious propensities.

In this case, the fact that the Defendant allowed the animal to roam free on the night of the incident as well as credible testimony that the dog was permitted to roam free among the adults at other parties at the subject building is in and of itself sufficient evidence for this court to infer that the Defendant had absolutely no knowledge of the dog's alleged vicious propensities.

The photographic evidence submitted by the Defendant depicts that this animal had at all times before the incident been found to be passive, mild tempered and non-aggressive.

The Claimant never asserted that the dog had jumped up on guests, barked at anyone, or even followed any of the visitors on the first floor. The Claimant never testified that the dog jumped on visitors due to over excitement, was never chided to settle down or described any other behavior that would show any awareness of any vicious propensity of Chino that could have resulted in the Plaintiff's injury. The Claimant never testified that the dog acted in any manner that the court could infer knowledge or notice by the Defendant of any proclivity for violence or otherwise.

As equally compelling is the evidence that Chino is certified by the Good Dog Foundation to visit healthcare facilities as a therapy dog. The dog has been certified by the Good Dog Foundation since 2008 and was validly certified through and including the date of the trial in this matter. The photographic evidence further demonstrates that the dog had a loving and warm relationship with many types of individuals including the emotionally disabled, and the physically and mentally handicapped. The dog also visits hospitals and nursing homes as a therapy dog. The photographic *11 evidence and testimonial evidence further corroborates the proof submitted by the Defendant that Chino had never attacked or injured any person or other animal and had always demonstrated good temperament. The fact that the dog roams free at these institutions and was held, petted and played with my men and women alike is also ample evidence that the Defendant had no knowledge that the dog posed any danger to anyone.

In rebuttal, the Claimant did not produce any evidence except to assert that the dog ”nipped at her feet“ and at the feet of other guests. No testimonial evidence was presented from any other guests that were present on the night of the incident or in any other form to corroborate this claim; her sole witness did not corroborate this claim.

It is the opinion of this court that this incident could have been precipitated by the ”territorial“ instinct of the dog under these facts. Although this court will not engage in speculation and conjecture, Chino may have perceived the Claimant's attempt to speak to him by approaching him single-handedly and leaning her face into his, as a ”territorial invasion “ which may have provoked the attack.

Although this court may sympathize with the Claimant and acknowledges the serious injuries that she sustained as a result of the dog bite, even the principles of substantial justice do not allow this court to disregard well established case authority from the highest court in this state.

Based on the facts and evidence presented, the court finds that the Claimant failed to demonstrate that the Defendant either knew or should have known of any vicious propensities of Chino sufficient to warrant strict liability for the personal injuries to the Claimant.

Accordingly, this court is precluded from granting any monetary award to the Claimant and is constrained to dismiss the complaint.

This constitutes the Decision and Order of this court.

____________________________________________________________________

Date HON. HARRIET THOMPSON

Judge of the Civil Court

NY.City Civ.Ct. 2013.