The Rogak Report: 29 June 2006 ** Dog Liability **
- DOG OWNER GETS SUMMARY JUDGMENT DUE TO LACK OF PROOF THAT DOG HAD
PROPENSITY TO JUMP ON PEOPLE
Adelaide Cohen v. Daniel Kretzschmar, (2d Dept 2006) (Index No. 208/03)
In this personal injury action, the plaintiff alleged that she was
injured when the defendant's dog jumped on her. She appealed from an
order of the Supreme Court, Westchester County (Murphy, J.), which
granted the defendants' motion for summary judgment dismissing the
complaint. The Appellate Division affirmed the dismissal.
"The defendants established their entitlement to judgment as a matter
of law by demonstrating that their dog did not have a propensity to
jump up on people and that they did not have prior notice of any such
propensity. Moreover, the defendants demonstrated that they were not
negligent in the manner in which they handled their dog at the time of
the alleged accident. In opposition, the plaintiff failed to submit
evidence sufficient to raise a triable issue of fact."
Comment: Dog liability is a two-pronged test in New York. To be liable
for a dog's vicious act, such as biting, the owner must be proven to
have had prior awareness of the dog's "vicious propensities," or at
least the propensity to do the kind of thing which caused the injury,
such as jumping on people and knocking them down.
But liability can also be premised on the "negligent handling" of a
dog, such as allowing a dog to roam freely and dart into traffic,
causing cars to swerve and bicyclists to fall.