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Supreme Court, Appellate Division, Second Department, New York

Jacobsen v. Schwarz
New York
50 A.D.3d 964 (N.Y.A.D. 2 Dept., 2008)


Case Details
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Summary:   Plaintiff appeals an order granting defendant's motion for summary judgment that dismissed her personal injury case. The plaintiff commenced this action after she was bitten by defendant's dog while working on a computer at defendant's house. Defendant's dog was lying on the floor next to the plaintiff's chair playing “tug of war” with her dog and a ball. The plaintiff maintains that when she put her hand down on the side of the chair she was bitten by the dog. This court found that summary judgment was not appropriate because the defendant warned plaintiff that the dog was possessive about her ball and not to touch it. The dog also growled during the tug of war game. These warnings along with the dog's actions with the ball may give rise to a finding that the defendant knew or should have known that the dog possessed a vicious propensity or a proclivity to act in a way that puts others at risk of harm.

Judge PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ. delivered the opinion of the court.


Opinion of the Court:

   *1 In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 14, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

   ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

   The plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she was bitten by a dog owned by the defendant. At the time of the incident, the plaintiff was working on a computer at the defendant's house. The defendant was lying on the floor next to the plaintiff's chair playing “tug of war” with her dog and a ball. The plaintiff maintains that when she put her hand down on the side of the chair she was bitten by the dog. The defendant moved for summary judgment arguing that there was no evidence that the defendant knew or should have known of the dog's vicious propensities.

    An “owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities” ( Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). A vicious propensity is the “propensity to do any act that might endanger the safety of the persons and property of others in a given situation” ( id., quoting Dickson v. McCoy, 39 N.Y. 400, 403). Accordingly, in order to recover in strict liability the plaintiff must prove that the owner knew or should have known of the vicious propensities of the animal ( see Claps v. Animal Haven Inc., 34 AD3d 715,716). This knowledge may be established with evidence of “prior acts of a similar kind of which the owner had notice” ( Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). It is not necessary to prove a prior bite ( see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463). Proof may consist of evidence that the animal had been known to “growl, snap or bare its teeth” or evidence showing whether and how the animal was restrained ( see Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254). However, restraining of the animal or barking, in and of itself, is insufficient ( see Collier v. Zambito, 1 N.Y.3d 444, 775 N.Y.S.2d 205, 807 N.E.2d 254).

   Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law. The defendant acknowledged at her deposition that she advised the plaintiff that the dog was possessive about her ball and not to touch it. The defendant's son testified at his deposition that he was told the same. The plaintiff testified at her deposition that while she was at the defendant's house the dog would growl as she carried the ball in her mouth and as she played “tug of war” with the defendant. These warnings along with the dog's actions with the ball may give rise to a finding that the defendant knew or should have known that the dog possessed a vicious propensity or a proclivity to act in a way that puts others at risk of harm ( see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463; Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; Parente v. Chavez, 17 A.D.3d 648, 649, 793 N.Y.S.2d 517).

   *2 Moreover, the plaintiff's sons submitted affidavits in which they stated that on a prior occasion they observed the dog growling and baring its teeth when they came near it ( see Miller v. Isacoff, 39 A.D.3d 718, 833 N.Y.S.2d 246). The deposition testimony along with the affidavits raised triable issues of fact as to whether the defendant knew or should have known of the dog's vicious propensities ( see Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; Miller v. Isacoff, 39 A.D.3d at 719, 833 N.Y.S.2d 246).

   Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

N.Y.A.D. 2 Dept.,2008.

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