The Rogak Report: 31 Jan 2006 ** Premises Liability - Dog Bites **
- WITHOUT PROOF OF VICIOUS PROPENSITIES, STRICT LIABILITY CLAIM FOR DOG
ATTACK IS DISMISSED BUT NEGLIGENCE CLAIM SURVIVES
Semensohn v. Ozkan, NYLJ 1/31/06 (Supreme Court, Nassau County)
On September 19, 2001, plaintiff alleged that she was walking her
Shitzu on South Oaks Boulevard in Plainview, New York, across the
street from the defendants' premises, when she noticed a "large"
unleashed dog coming towards her. The plaintiff testified that she
bent down to pick up her Shitzu when the defendants' dog knocked her
to the ground, jumping, barking and growling at the plaintiff and the
plaintiff's dog. The plaintiff claimed that the defendants' daughter
Mary appeared and started shouting at the defendants' dog, "Chewy",
and that after a little time, the dog seemed to back away, and then
started barking, growling, jumping and scratching again. The
plaintiff also stated that Mary did not restrain her dog, just waved
her hand, and shouted to Chewy, who eventually ran away to the
defendants' open garage.
The defendants claimed that their daughter, Mary, came home with a
friend on the date of the incident, and that after opening the garage
door, the friend opened the second door leading from the inside of
the house to the garage, and failed to close the second door,
whereby, the defendants' dog, Chewy, ran out of the house. The
defendant, Bella Ozkan, testified that from the balcony, she saw her
daughter run after the dog, and grab the dog before the dog reached
the opposite sidewalk. Ms. Ozkan testified that "the dog never got
near her [plaintiff]".
Ms. Ozkan testified that her dog, Chewy, had never run out of the
house prior to this incident, had never jumped on, bitten, or
scratched anyone, including the immediate family, and had never
growled prior to the incident. The plaintiff testified that she had
never seen the defendants' dog prior to the incident.
"In order to recover in strict liability in tort for a dog bite or
attack," ruled the Court, "a plaintiff must prove that the owner of a
domestic animal either knew, or should have known of that animal's
vicious propensities. (Collier v. Zambito, 1 NY3d 444). Knowledge of
a domestic animal's vicious propensities may be established by proof
of prior acts of a similar kind of which the owner had notice, or
even by evidence that it had been known to growl, snap or bare its
teeth. Here, the defendants have made a prima facie showing of
entitlement to summary judgment as a matter of law with respect to
plaintiff's strict liability claim. In opposition to the motion,
plaintiffs have failed to raise a triable issue of fact as to whether
the defendants' dog had vicious propensities."
"However, where conduct, although not vicious, results in a
reasonably foreseeable injury, a right to recover for common-law
negligence may be found. (Faller v. Schwartz, 303 AD2d 624; Colarusso
v. Dunne, 286 AD2d 37). Here, it is undisputed that the defendants'
dog was unleashed at the time of the alleged attack. The pertinent
provision of the Code of the Town of Oyster Bay, §103-2, provides
that no owner of any dog shall allow such a dog off the premises of
such person without being restrained by an adequate leash, and under
the immediate and full control of the owner or person in charge of."
"While the defendants submit that their dog never got near the
plaintiff, the plaintiff avers that the unleashed dog attacked her
and that the defendant was unable to control their dog. On a motion
for summary judgment the court must accept as true the evidence
presented by the non-moving party. (Bershaw v. Altman, 100 Ad2d 642).
Here, there is a question of fact as to whether the defendants
violated the local ordinance, and whether the violation was a
proximate cause of the plaintiff's injuries."
"Therefore, in light of the foregoing, the defendants' motion for
summary judgment is partially granted in that the plaintiff's claim
seeking to recover damages on the theory that the defendants are
strictly liable because they were aware of their dog's vicious
propensities is dismissed. Plaintiff's causes of action with respect
to the defendants' negligence and the defendants' violation of the
Code of the Town of Oyster Bay are not dismissed."
Comment: The significance of the dismissal of the strict liability
claim is that the plaintiff will have to prove that the defendant was
actually negligent in the way she handled and kept her dog in order
to recover damages. With strict liability, the attack itself would
prove the case.