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3022The Rogak Report: 25 Feb 2013: Dog Liability - Dobermans - Infants

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  • Lawrence
    Feb 25, 2013

      Nicolette Ferrieri by f/n/g Luigi Ferrieri 
      Paul Sigler and Francine Sigler

      Supreme Court, Nassau County, index 23210/2010
      Feinman, j.

      Edited by Lawrence N. Rogak

      Note: This is a dog bite suit in which we represented the defendants.

      Plaintiffs sued defendants after defendant's dog bit the 9 year old girl on her face.

      The plaintiff, Luigi Ferrieri, and his family were guests at the defendants' Shelter Island home when his daughter, infant plaintiff Nicolette, was bitten about her face and head on August 7, 2010 by "Max," defendants' Doberman Pinscher.

      The plaintiffs, earlier that day, were in the back yard with the defendants, and Max, for a barbecue, whereby the children were in the pool while Max ran around, and the children played ball with Max.  The children went inside at about 9:00 PM to watch television, when, as per the deposition of the infant plaintiff, Max "sat down, like a dog, Erica petting him, when he bit me."

      An owner of a domestic animal who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.  Collier v Zambito, 1 NY3d 444.  A vicious propensity is the propensity to do any act that might endanger the safety of persons and property of others in a given situation.  Dickson v McCoy, 39 NY 400.  Knowledge may be established with evidence of prior acts of a similar kind of which the owner had notice.  While it is not necessary to prove a prior bite, proof constitutes knowledge that the dog had been known to growl, snap or bare its teeth or evidence showing that the animal was restrained.  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.

      [In another case] the owner of a domestic animal made a prima facie showing of entitlement to summary judgment as a matter of law by presenting evidence that they lacked knowledge of the dog's propensities, as they demonstrated that their pet dog had never previously been aggressive, growled, bared his teeth, bitten anyone, or exhibited any other signs of viciousness.  Ayres v Martinez, 74 AD3d 1002.  Notably, plaintiffs argued in their appellate brief that the dog, Nico, a mixed breed pit bull, occasionally wore a muzzle, the defendants posted a beware of dog sign, and Nico was euthanized after the incident.

      Evidence tending to prove that a dog has vicious propensities, for purposes of an owner's liability, include a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.  Hodgson-Romain v Hunter, 72 AD3d 741.  The defendants made a prima facie showing of entitlement to summary judgment by presenting evidence that the defendants' dog was a playful animal, and the defendants had no knowledge that the dog ever growled at, chased, bitten or attacked anyone.

      Summary judgment dismissing the action of an infant victim of a dog attack in Sers v Manasia, 280 AD2d 539 was affirmed as the victim of the dog attack failed to prove that the dog had vicious propensities, or knowledge of the dog's owners thereto, despite the fact that the dog was occasionally confined in a pen on the property, the nature and severity of the attack, evidence of the violent tendencies of the breed, and the use of "beware of dog" signs on the residence where the dog once lived.  The infant plaintiff was a guest at the defendants' property when he was injured by a German Shepard owned by the defendants.  The court reasoned that there was no evidence that the pen was built in response to any vicious attacks by the dog, evidence of this particular breed does not raise an issue of fact as to the propensities of this particular dog, and the posting of a 'beware of dog' sign did not raise an issue of fact as to the vicious propensity of the dog as the defendant testified he posted the signs as a deterrent to intruders.

      And in DeVaul v Carvigo Inc., 138 AD2d 669, the Court held that there is no authority for the proposition that judicial notice should be taken as to the ferocity of any particular type of domestic animal.

      Here, the defendants made a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating that they lacked knowledge of a vicious propensity of the dog, and demonstrated that their dog had never been previously aggressive, growled, bared his teeth or bit anyone before, and did not exhibit any signs of viciousness.  The defendants never saw the dog growl or jump on anyone prior to the incident, testified that the dog's demeanor with children was playful, the dog never snapped at children prior to the incident, and plaintiff infant had been to the defendant's other home on more than five occasions and expressed no fear of Max.

      The defendants submit the sworn affidavit of veterinarian Glenda B. Wexler who avers that in the past two and a half years, Max was seen for office visits, grooming and boarding, and was well behaved, did not growl, snap, bare his teeth or act in a manner that put others at risk of harm.

      The plaintiffs, in opposition, have failed to raise a triable issue of fact to warrant denial of this motion.  Ferreri's opinion that the Doberman breed is "schizophrenic" and could snap at any time, and his prior experience with a pet Doberman, which he kept isolated in his back yard, is unavailing.  Ferreri's opinion about the Doberman breed is irrelevant as there is no authority for the proposition that a particular type of domestic animal is ferocious or has vicious propensities in New York.

      Additionally, the plaintiff has not submitted any evidence that the defendants kept Max in the kitchen, or the back yard, when the infant plaintiff visited, in response to any vicious acts or propensities of Max.

      In light of the foregoing, the defendants' motion is granted and plaintiff's complaint is dismissed.