Supreme Court, Appellate Division, Third Department, New York
Gannon v. Conti
86 A.D.3d 704 (N.Y.A.D. 3 Dept.,2011)
In 2008, defendants' dog allegedly left their yard by passing through an underground "invisible" electrical fence system and bit the plaintiff who was sitting on her bike on the adjacent property. Plaintiff filed suit seeking damages for injury based on common-law negligence and strict liability. The lower court granted defendants' motion for summary judgment based on the fact that they had no prior knowledge of the dog's alleged vicious propensities. On appeal, the court found that even defendants' own depositions raised an issue of fact as to notice of their dog's alleged vicious propensities. Specifically, one defendant admitted he used a "bite sleeve" obtained through his employment as a police officer to encourage the dog to bite and hold a perpetrator's arm. This evidence that the dog was encouraged to leap up and bite a human arm created a sufficient issue of fact for the jury despite defendants' claim that this was a "play activity" for the dog.
delivered the opinion of the court.
Opinion of the Court:
*1 Appeal from an order of the Supreme Court (Cahill, J.), entered August 19, 2010 in Ulster County, which granted defendants' motion for summary judgment dismissing the complaint.
In October 2008, a dog owned by defendants allegedly left their yard in the Town of Marlborough, Ulster County by passing through an underground “invisible” electrical fence system, and bit plaintiff Cora–Ann Gannon (hereinafter the child), who was sitting on her bike on the adjacent property. Plaintiffs thereafter commenced this action, seeking damages for the child's injury based upon common-law negligence and strict liability. After issue was joined, defendants moved for summary judgment dismissing the complaint, asserting that they had no prior knowledge of their dog's alleged vicious propensities, and Supreme Court granted the motion. Plaintiffs appeal.
It is well settled “ ‘that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held [strictly] liable for the harm the animal causes as a result of those propensities' ” ( Bard v. Jahnke, 6 N.Y.3d 592, 596, 815 N.Y.S.2d 16, 848 N.E.2d 463 , quoting Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; see Rose v. Heaton, 39 A.D.3d 937, 939, 833 N.Y.S.2d 291  ). To be entitled to summary judgment, an animal-owner defendant bears an initial burden to demonstrate that, prior to the incident giving rise to the lawsuit, he or she was without knowledge that the animal possessed any vicious or dangerous propensities ( see Miletich v. Kopp, 70 A.D.3d 1095, 1095, 895 N.Y.S.2d 557 ; Illian v. Butler, 66 A.D.3d 1312, 1313, 888 N.Y.S.2d 247  ). “Even in the absence of a prior bite, a triable issue of fact regarding knowledge of vicious propensities may be raised by other evidence of the dog's aggressive behaviors” ( Morse v. Colombo, 8 A.D.3d 808, 809, 777 N.Y.S.2d 824  [citations omitted] ).
Here, defendants' own depositions, submitted in support of their motion for summary judgment, raise an issue of fact as to their notice of their dog's allegedly dangerous propensities, precluding summary judgment. Defendants admitted that, on numerous occasions prior to the child's injury, defendant Joseph Conti would put a protective “bite sleeve” on his arm—obtained through his employment as a police officer and regularly used in the formal training of K–9 dogs to teach the animals to bite and hold a perpetrator's arm—and encourage his dog to leap up, bite the sleeve and hold on until commanded to release. We find this evidence of encouraging the dog to jump up and bite the sleeved arm of a human being sufficient to create an issue of the fact for the jury as to whether defendants had notice of the dog's alleged propensity to bite ( see Morse v. Colombo, 8 A.D.3d at 809, 777 N.Y.S.2d 824; Calabro v. Bennett, 291 A.D.2d 616, 616, 737 N.Y.S.2d 406 ; cf. Illian v. Butler, 66 A.D.3d at 1313, 888 N.Y.S.2d 247; Velazquez v. Carns, 244 A.D.2d 620, 620–621, 663 N.Y.S.2d 705  ).
Defendants assert that their dog was not trained to attack and that the use of the bite sleeve was mere “play” in the form of “tug-o-war.” However, even if the activity is interpreted as purely playful from the dog's perspective, “ ‘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’ ” ( Bard v. Jahnke, 6 N.Y.3d at 597, 815 N.Y.S.2d 16, 848 N.E.2d 463, quoting Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; Earl v. Piowaty, 42 A.D.3d 865, 866, 839 N.Y.S.2d 861 ; Marquardt v. Milewski, 288 A.D.2d 928, 928, 732 N.Y.S.2d 801  ). We hold, on the evidence as it exists at this early stage of the action, that a jury could reasonably conclude that the dog's behavior with regard to the bite sleeve was sufficient to put defendants on notice that he might bite someone, as it is alleged he did to the child. Accordingly, summary judgment on the issue of strict liability was unwarranted.
*2 However, because a plaintiff in a case arising out of an attack by a domestic animal may only recover under a theory of strict liability ( see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Bernstein v. Penny Whistle Toys, Inc., 10 N.Y.3d 787, 788, 856 N.Y.S.2d 532, 886 N.E.2d 154 ; Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254), plaintiffs' claims sounding in common-law negligence were properly dismissed.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion for summary judgment dismissing the strict liability causes of action; motion denied to said extent; and, as so modified, affirmed.
MERCURE, J.P., KAVANAGH, GARRY and EGAN JR., JJ., concur.