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The Rogak Report: 31 Jan 2006 ** Premises Liability - Dog Bites **

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  • Lawrence Rogak
    WITHOUT PROOF OF VICIOUS PROPENSITIES, STRICT LIABILITY CLAIM FOR DOG ATTACK IS DISMISSED BUT NEGLIGENCE CLAIM SURVIVES Semensohn v. Ozkan, NYLJ 1/31/06
    Message 1 of 1 , Jan 31, 2006
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      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)
      (FEINMAN, j)

      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, ยง103-2, 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.

      Larry Rogak
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