Full Case Name:  Shirley CARTER, Plaintiff-Respondent, v. METRO NORTH ASSOCIATES, etc., et al., Defendants-Appellants

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Country of Origin:  United States Court Name:  Supreme Court, Appellate Division, First Department, New York Primary Citation:  255 A.D.2d 251, 1998 N.Y. Slip Op. 10266 (N.Y.A.D. 1 Dept.,1998) Date of Decision:  Tuesday, November 24, 1998 Judge Name:  MEMORANDUM DECISION Jurisdiction Level:  New York Alternate Citation:  255 A.D.2d 251, 1998 N.Y. Slip Op. 10266 (N.Y.A.D. 1 Dept.,1998) Judges:  JJ. J.P. MAZZARELLI ANDRIAS and SAXE TOM Attorneys:  Steve Weissman, for Plaintiff-Respondent. Edward J. O'Gorman, for Defendants-Appellants Docket Num:  Slip Op. 10266

In this New York case, a tenant sued his landlords for injuries after he was bitten on face by pit bull owned by another tenant. The lower court denied the landlords' motion for summary judgment and granted partial summary judgment for tenant on issue of liability. On appeal, the Supreme Court, Appellate Division held that the trial court erroneously took judicial notice of vicious nature of breed of pit bulls as a whole. In fact, the court found that the IAS court "erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole." Thus, the landlords were not strictly liable for the tenant's injuries where there was no evidence indicating that the dog had ever attacked any other person or previously displayed any vicious behavior.

*251 Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 17, 1998, denying defendants' motion for summary judgment, and, upon searching the record, granting summary judgment to the plaintiff on the issue of liability, reversed, on the law, without costs, judgment in favor of plaintiff vacated, defendants' motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Before a pet owner, or the landlord of the building in which the pet lives, may be held strictly liable for an injury inflicted by the animal, the plaintiff must establish both (1) that the animal had vicious propensities and (2) that the defendant knew or should have known of the animal's propensities ( see, Vavosa v. Stiles, 220 A.D.2d 363, 632 N.Y.S.2d 791; Gibbs v. Grenadier Realty Corp., 173 A.D.2d 171, 569 N.Y.S.2d 76). Here, although it was established that plaintiff, a resident of a building owned and managed by the defendants, was attacked and bitten on the face by a pit bull owned by another tenant, there was no evidence indicating that the dog had ever attacked any other individual, or previously displayed any vicious behavior. The IAS court erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole.

“A court may only apply judicial notice to matters ‘of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof’ ” ( Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 320, 639 N.Y.S.2d 323, quoting Ecco High Frequency Corp. v. Amtorg Trading Corp., 81 N.Y.S.2d 610, 617, affd. 274 App.Div. 982, 85 N.Y.S.2d 304). The fact at issue must be “generalized knowledge as [is] so notorious as not to be the subject of reasonable dispute” ( Abrevaya v. Palace Theatre & Realty Co., 25 Misc.2d 600, 603, 197 N.Y.S.2d 27, citing Model Code of Evidence, Rule 801).

On the subject of the propensities of pit bull terriers as a breed there are alternative opinions that preclude judicial notice such as was taken by the Court. While many sources, including the authorities relied upon by the IAS court, assert *252 the viciousness of pit bulls in general, numerous other experts suggest that, at most, pit bulls possess the potential to be trained to behave viciously ( see, e.g., Green, “It's Unfair to Categorize Any Dog Breed As A Biter,” The Seattle Times, August 17, 1997, p.G5; Kuntz, “Word for Word/ Rover Rage,” New York Times, June 7, 1998, sec. 4, p. 7, col.1; Foote, “That is Not A Bad Dog-That's a Splendid Dog”, 23 Smithsonian Magazine 60-71 [1992] ).

Furthermore, scientific evidence more definitive than articles discussing the dogs' breeding history is necessary before it is **241 established that pit bulls, merely by virtue of their genetic inheritance, are inherently vicious or unsuited for domestic living, such as, for instance, wolves and leopards would be ( but see, Plue by Plue v. Lent, 146 A.D.2d 968, 969, 537 N.Y.S.2d 90). No statistical analysis is offered to demonstrate that a high percentage of the total number of pit bulls has engaged in violent incidents.

Even accepting that the evidentiary submissions created an issue of fact as to whether this particular animal had vicious propensities, none of the evidence supports a finding that the landlord had, or should have had, knowledge of any such propensities. In particular, the claimed admission of the dog's owner to the plaintiff immediately before the incident, that the dog had become aggravated due to children playing in the vicinity, provides no support for an inference that the landlord knew of such propensities. Nor does evidence that the landlord's agents knew of the dog's existence and presence in the building support the inferential leap to knowledge on the part of the landlord that the dog had vicious propensities.

The defendants' failure to enforce the “No Pets” provision of the lease cannot be characterized as a proximate cause of plaintiff's injuries. There is no causal connection between the lease violation and plaintiff's injuries, particularly in the absence of any demonstrated reliance on the lease clause by the plaintiff.

In response to defendants' motion, it was incumbent upon plaintiff to submit evidentiary proof sufficient to raise an issue of fact ( see, Machinery Funding Corp. v. Stan Loman Enterprises, 91 A.D.2d 528, 456 N.Y.S.2d 401). In the absence of sufficient evidence to support plaintiff's claim, defendants' motion for summary judgment dismissing the complaint should have been granted.

All concur except MAZZARELLI, J. who dissents in a memorandum as follows:

MAZZARELLI, Justice (dissenting).

Plaintiff, a 72 year-old resident of defendants' apartment complex, seeks to hold defendants liable for personal injuries sustained during an attack by a pit bull owned by another tenant. *253 The standard leases issued by defendants prohibited tenants from keeping pets on the premises. Despite defendants' knowledge of this dog's presence, the lease provision was not enforced and the dog was permitted to remain.

The majority holds that summary judgment should have been granted to defendants because no evidence was produced by the plaintiff showing that this pit bull had vicious propensities, and because the IAS court improperly took judicial notice of the alleged vicious propensities of pit bulls as a breed. While I agree that judicial notice was inappropriate under these circumstances, I believe that triable issues of fact exist as to whether this particular breed of dog has innate vicious propensities, and whether the defendants knew or should have known of this propensity so as to give rise to a duty to protect other residents from a dangerous animal on the premises. Accordingly, I would modify to deny summary judgment to both parties and remand for further proceedings.

Plaintiff was attacked on August 8, 1995, as she was walking along a path leading to one of the exit gates of defendants' apartment complex. As she neared the gate, she heard a dog's “vicious” barking, and then observed another tenant with a dog (a pit bull) on a leash. According to plaintiff's deposition testimony, the tenant told her that the dog was only behaving in this manner because the children playing in the immediate vicinity were “aggravating” it. Moments later, the pit bull leaped onto the plaintiff's body, biting her left cheek and cutting her left side. Plaintiff remembered feeling a heavy, muscular presence on her that knocked her into the security cabin. Plaintiff went to the emergency room, where she was treated for her injuries.

On the issue of defendants' knowledge, one of defendants' employees testified at his deposition that he had seen the dog being walked by the tenant's son on some five prior occasions, that the dog appeared to be “strong” from the manner in which it pulled on its leash and that he thought the dog had big teeth. Both this employee and another **242 testified that they were aware that tenants were prohibited from keeping pets on the premises.

For a landlord to be held liable for an attack by a domestic animal kept by a tenant on its leased premises, it must be shown that the landlord had knowledge of the vicious propensities of the animal, and had control of the premises or other capability to remove or confine it ( Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13). “Vicious propensity” has been defined as “a natural inclination or habitual tendency to act in a manner that might *254 endanger the person or property of others” (1A PJI 2:220 at 876; see also, Dickson v. McCoy, 39 N.Y. 400; Appel v. Charles Heinsohn, 91 A.D.2d 1029, 1030, 458 N.Y.S.2d 619, affd. 59 N.Y.2d 741, 463 N.Y.S.2d 441, 450 N.E.2d 247; Shuffian v. Garfola, 9 A.D.2d 910, 195 N.Y.S.2d 45). Whether the animal that caused the plaintiff's injuries had vicious propensities is a question for the jury ( Rider v. White, 65 N.Y. 54; 1A PJI 2:220, supra at 876; 3 N.Y. Jur 2d Animals § 156, at 635). In deciding this question, the jury may consider the nature and results of the attack on the plaintiff ( Lynch v. Nacewicz, 126 A.D.2d 708, 709, 511 N.Y.S.2d 121; Ford v. Steindon, 35 Misc.2d 339, 340, 232 N.Y.S.2d 473), whether the animal had previously attacked other persons ( Lynch v. Nacewicz, supra ), and the disposition of the animal toward persons coming near it ( Rider v. White, supra; 1A PJI 2:220 supra ). “Proof of a previous attack is unnecessary where other factors are indicative of knowledge [of an animal's vicious propensities]( see, Perrotta v. Picciano, 186 App.Div. 781, 783, 175 N.Y.S. 16).” ( Brophy v. Columbia County Agric. Soc., 116 A.D.2d 873, 874, 498 N.Y.S.2d 193).

In the case at bar, the unprovoked and brutal nature of the attack on the plaintiff strongly suggests that this animal had vicious tendencies. This conclusion is supported by the owner's admission to the plaintiff, immediately before the attack, that the dog had become “aggravated” due to children playing in the vicinity. From these facts, it may be reasonably inferred that this dog posed an unreasonable risk of danger to other residents and passersby, and that defendants should have known of this risk ( see, Brophy v. Columbia County Agric. Soc., supra at 875, 498 N.Y.S.2d 193 [defendants' knowledge of horse's vicious propensities may be inferred from fact of defendants' maintenance and inspection of leased premises] ).

Additionally, while the taking of judicial notice of the vicious propensities of pit bulls as a breed was improper ( see, Sorel v. Iacobucci, 221 A.D.2d 852, 853-854, 633 N.Y.S.2d 688; DeVaul v. Carvigo, 138 A.D.2d 669, 526 N.Y.S.2d 483, lv. denied 72 N.Y.2d 806; , 532 N.Y.S.2d 847, 529 N.E.2d 177 3 N.Y. Jur 2d Animals § 149, at 625), there is authority to support the proposition that a degree of viciousness may be implied solely by virtue of the specific breed involved ( see, Sorel v. Iacobucci, supra [while judicial notice is inappropriate, some degree of viciousness may be implied in case of German Shepherd]; Carlisle v. Cassasa, 234 App.Div. 112, 254 N.Y.S. 221 [court can almost take judicial knowledge of the fact that police dogs are, by nature, vicious, inheriting their wild and untamed characteristics from their wolf ancestors]; see also, Strunk v. Zoltanski, supra at 578, 479 N.Y.S.2d 175, 468 N.E.2d 13, n1 [Kaye, J., dissenting]; Plue v. Lent, 146 A.D.2d 968, 537 N.Y.S.2d 90).

As noted by the IAS court, there is also case authority from other jurisdictions, as well as from non-legal sources, from *255 which the viciousness of pit bulls may be inferred. For example, several commentators have discussed how the selective breeding of pit bulls, including their long history of being bred for participation in the sport of dogfighting, have resulted in a “breed which is much more easily aroused than most dogs, incredibly tenacious, insensitive to pain, and that attacks without warning” ( Kensington Square II Ltd. Ptn. v. Perez, 1995 WL 670102,1995 Conn. Super. LEXIS 3463, citing Killer Genes Ate My Dog, Economist (U.K.) June 1, 1991, p.83; see also, Comment, The New Breed of Municipal Dog Control Laws: Are They Constitutional?, 53 U. Cin L. Rev. 1067 [1984] ). Further, the physical characteristics of the breed ( see, Ohio v. Anderson, 57 Ohio St.3d 168, 171-172, 566 N.E.2d 1224, cert. denied **243 501 U.S. 1257, 111 S.Ct. 2904, 115 L.Ed.2d 1067, citing Hearn v. Overland Park, 244 Kan. 638, 643, 772 P.2d 758, cert. denied 493 U.S. 976, 110 S.Ct. 500, 107 L.Ed.2d 503 [“short, squatty body with developed chest, shoulders and legs ... muscular neck and protruding jaw”] ), including their exceptionally strong bite ( see, Kensington Square II Ltd. Ptn. v Perez, supra at *11, citing Sullivan, Banning the Pit Bull: Why Breed-Specific Legislation is Constitutional, 13 U. Dayton L. Rev. 279, 282 [pit bulls can bite with a force of 1800 to 2000 pounds per square inch, or twice the force of the average Doberman Pinscher or German Shepherd] ), have only reinforced their dangerous reputation.

Most significantly, the IAS court cited authorities that relied on statistical studies to demonstrate that pit bulls have been responsible for a disproportionate number of canine attacks on human beings, and fatalities resulting from such attacks ( see, Kensington Square II Ltd. Partnership v. Perez, supra, citing Pit Bulls-Dangerous or Misunderstood?, 14 Current Mun Probs 497 [1988] [between 1983 and 1988, pit bulls were responsible for 21 of the nation's 29 fatal canine attacks]; see also, Sacks, Dog Bite-Related Fatalities from 1979 through 1988, 262 Journal of the American Medical Assoc. 1489 [1989] [between 1979 and 1988 pit bulls were responsible for 42 of 101 (41.6%) of deaths by dog bites, which was three times the rate of German Shepherds]; Dog Days Indeed, N.Y. Times, Dec. 10, 1997, § B, p.3 [pit bulls constitute only 4% of licensed dogs in New York City but account for one-third of reported dog bites] ). Further, as a result of the alarming increase in fatal attacks by pit bulls, many jurisdictions have passed legislation banning or regulating the ownership of pit bulls ( see e.g., Ohio v. Anderson, supra [upholding the constitutionality of state statute providing that ownership of dog commonly known as “pit bull” is prima facie ownership of a vicious dog]; *256 Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355 [NM App 1988], cert. denied 107 N.M. 785, 765 P.2d 758 [upholding village ban on pit bulls]; Hearn v. Overland Park, supra [unique public hazard created by presence of pit bulls within community justifies city's attempt to regulate this breed of dog] ).

Collectively, the ferocious nature of the pit bull's attack on the plaintiff, the dog's behavior immediately prior to the attack and the historical and statistical evidence adduced with respect to a pit bull's tendency to behave in a vicious and potentially lethal manner, in my view, give rise to triable issues of fact as to this particular dog's vicious propensities and whether the defendants should have had knowledge thereof ( see, Abrevaya v. Palace Theatre & Realty Co., 25 Misc.2d 600, 603, 197 N.Y.S.2d 27 [Sup Ct N.Y. Co 1960][holding whether a rhesus monkey is a wild animal or a mild one, and if the former, whether it may be trained to tameness, is a question of fact]; see also, Donchin v. Guerrero, 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192 [1995]; Rosado-Carrasco v. Wathne, 1997 WL 524170, 1997 Conn Super LEXIS 2193). Expert testimony could be offered at trial to supplement the authorities relied on by the motion court ( Abrevaya v Palace Theatre & Realty Co., supra; Donchin v Guerrero, supra ).

It must also be remembered that the particular setting of this attack was a densely populated apartment complex where numerous infants, children and elderly persons, all of whom are especially unable to defend themselves from a vicious dog attack, reside. Thus, the jury would also have to resolve the questions of whether the defendants took adequate precautions to protect third persons from an unreasonable risk on the premises ( see, Strunk v. Zoltanski, supra at 576, 479 N.Y.S.2d 175, 468 N.E.2d 13 [landlords as others must exercise reasonable care not to expose third persons to an unreasonable risk of harm] ), whether the defendants had “control of the premises or other capability to remove or confine the animal” ( id. at 575, 479 N.Y.S.2d 175, 468 N.E.2d 13), and whether the failure to enforce the lease provision prohibiting animals was the proximate cause of plaintiff's injuries. As none of the aforementioned questions may be answered in defendants' favor as a matter of law, I would modify as indicated and remand for further proceedings.

N.Y.A.D. 1 Dept.,1998.

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