Dangerous Dog: Related Cases

Case name Citationsort ascending Summary
Faraci v. Urban 101 A.D.3d 1753 (N.Y.A.D. 4 Dept.)

In this New York case, the plaintiff sought damages for injuries his son sustained after the child was bitten by a dog in a house owned by defendant Urban, but occupied by Defendant Buil (the dog's owner). Defendant Urban appeals an order denying her motion for summary judgment dismissing the complaint. Defendant Urban failed to demonstrate as a matter of law that the dog did not have vicious tendencies because defendant's own submissions showed that the dog had previously growled at people coming to the door. However, summary judgment was appropriate here because the evidence failed to show that defendant knew or should have known of the dog's alleged vicious propensities.

Yuzon v. Collins 10 Cal.Rptr.3d 18 (Cal.App. 2 Dist.,2004)

In this California case, a dog bite victim sued a landlord, alleging premises liability in landlord's failure to guard or warn against tenants' dangerous dog.  On appeal from an order of summary judgment in favor of the landlords, the Court of Appeal held that the landlord owed no duty of care, as he had no actual knowledge of dog's dangerous propensities and an expert witness's declaration that the landlord should have known of the dog's vicious propensities was insufficient to warrant reconsideration of summary judgment ruling.  The landlord's knowledge that tenants may have a dog because it is allowed through a provision in the lease is insufficient to impute liability where the landlord has no knowledge of any previous attacks or incidents.

Collier v. Zambito 1 N.Y.3d 444 (N.Y. 2004)

Infant child attacked and bit by dog when he was a guest in the owner's home.  After defenses motion for summary judgment was denied, the Appellate Court reversed, and this court affirms.

People v. Berry 1 Cal. App. 4th 778 (1991)

In a prosecution arising out of the killing of a two-year-old child by a pit bulldog owned by a neighbor of the victim, the owner was convicted of involuntary manslaughter (Pen. Code, §   192, subd. (b)), keeping a mischievous animal (Pen. Code, §   399), and keeping a fighting dog (Pen. Code, §   597.5, subd. (a)(1)). The Court of Appeal affirmed, holding that an instruction that a minor under the age of five years is not required to take precautions, was proper. The court further held that the trial court erred in defining "mischievous" in the jury instruction, however, the erroneous definition was not prejudicial error under any standard of review. The court also held that the scope of defendant's duty owed toward the victim was not defined by Civ. Code, §   3342, the dog-bite statute; nothing in the statute suggests it creates a defense in a criminal action based on the victim's status as a trespasser and on the defendant's negligence.

Estis v. Mills --- So.3d ----, 2019 WL 3807048 (La. App. 2 Cir. August 14, 2019) On September 11, 2017, Plaintiffs, Catherine Estis, Samuel Estis, and Thuy Estis brought this action against the Defendants, Clifton and Kimberly Mills, seeking damages for the shooting of the Plaintiff’s ten-month-old German Shepherd puppy, Bella. The Plaintiffs alleged that the Defendants shot Bella, did not disclose to them that Bella had been shot, and dumped her body over ten miles away. Defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of Defendants. The Defendants argued that they fell within the immunity afforded by a Louisiana statute that gives immunity to anyone who kills a dog that is not on the property of the owner and is harassing, wounding, or killing livestock. The Defendants alleged that Bella, the puppy, was harassing their horses. The Plaintiffs argued that the immunity afforded by the statute needed to be affirmatively pled by the Defendants and that the Defendants waived such immunity by failing to assert the affirmative defense in their original answer or any subsequent pleading. The Plaintiffs further argued that the motion for summary judgment would not have been granted if it were not for the immunity protections. The Court ultimately held that the Defendants failed to affirmatively plead the immunity statute and, therefore, it reversed and remanded the case to the lower court.
Strickland v. Pinellas Cty. --- So.3d ----, 2018 WL 6518761 (Fla. Dist. Ct. App. Dec. 12, 2018) Andy G. Strickland appealed an order dismissing with prejudice his complaint for declaratory relief against Pinellas County. The request stems from letters he received from Animal Services of Pinellas County about his dog. Strickland and a neighbor were involved in a dispute after their dogs attacked each other. The neighbor filed a complaint with Animal Services claiming that Strickland's dog was the "aggressor dog" and then sent a letter to the Pinellas County Board of Commissioners. The County then sent two letters to Strickland, the first informing him that his dog had exhibited dangerous propensities, and the second, from an assistant county attorney, informing him of the possible criminal ramifications for keeping a dangerous dog or being an "Irresponsible Pet Owner" under the county code. As a result of these letters, Strickland filed a complaint in circuit court saying that he was not afforded any opportunity to dispute those claims and that he is entitled to have the threat of criminal prosecution removed. The County moved to dismiss Strickland's complaint arguing that he failed to allege a justiciable controversy and a bona fide dispute between the County and him. The County claimed that there were no legal findings made with respect to Strickland's dog and that the letters were possible ramifications and explanations of law. The trial court agreed and granted the County's motion, finding the letters were not accusatory and the case presented no justiciable issue. On appeal here, this court upheld the lower court's order because Strickland's allegations did not present a bona fide dispute. Both letters emphasized that his dog had not been classified as dangerous and that no action was being taken by the county. A speculative fear by Strickland that he may be subject to future consequences does not warrant declaratory relief and does not show imminent danger of prosecution. Thus, the trial court correctly dismissed Strickland's complaint. Affirmed.
Saulsbury v. Wilson --- S.E.2d ----, 2019 WL 493695 (Ga. Ct. App. Feb. 8, 2019) This Georgia involves an interlocutory appeal arising from a dog bite lawsuit. In 2016, Plaintiff Saulsbury was walking her English Bulldog past Defendant Wilson's house when Wilson's pitbull dog escaped its crate in the open garage. A fight ensued between the dogs. Wilson then attempted to break up the fight and was allegedly bitten by Saulsbury's dog, suffering a broken arm in the process and necessitating a course of rabies shots. The Saulsburys then sued the Wilsons in magistrate court to recover hospital and veterinary expenses. Wilson counterclaimed for her injuries in excess $15,000, thus transferring the case to superior court. At this time, the Saulsburys moved for summary judgment, which the trial court denied. The Court of Appeals here reverses that denial. The court found that Wilson assumed the risk when she intervened in a dog fight with her bare hands. In particular, the court observed that assumption of risk serves as a complete defense to negligence. That finding was bolstered by the fact that Wilson had knowledge that her dog had previously bitten other persons and had admitted to breaking up previous dog fights with a stick. The court relied on previous case law showing that all animals, even domesticated animals, pose a risk as does the act of breaking up even human fights. The court was not persuaded by the fact that Saulsbury may have been in violation of various DeKalb County ordinances related to an owner's responsibility to control his or her animal. A plain reading of those ordinances does not impose a duty on the part of an owner to "dangerously insert herself into a dog fight." The court found the lower court erred in denying the Saulsbury's motion for summary judgment and reversed and remanded the case.
State v. Wilson --- P.3d ----, 2019 WL 4955178 (Wash. Ct. App. Oct. 8, 2019) Defendant Robert Wilson appeals his conviction of first degree animal cruelty, which arose from an incident at an archery club when Wilson shot a large dog in the hindquarters (70lb. "Dozer") with an arrow after that dog attacked Wilson’s small dog ("Little Bit"). (Dozer recovered from his injuries.) Wilson argues that his action was lawful under RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls. The trial court declined to give defendant's proposed jury instruction based on this statutory language, finding that it only applied to stock animals and not when a dog was injuring another dog. The court did, however, permit the common law defense that allows owners to take "reasonably necessary action" in defense of their animals, which the State must then disprove beyond a reasonable doubt. On appeal, this court noted that no Washington court has interpreted RCW 16.08.020 in a published case. Under common law cases that allow a person to kill an animal to defend his or her property, the court found those cases require the killing be "reasonably necessary." While the parties dispute whether the statute requires that the actions be "reasonably necessary," the appellate court first found Wilson was still not entitled to a dismissal of charges because he could not establish that the location where he shot the arrow at Dozer was land that he "owned, leased, or had control over" per the statute. As to the Wilson's next argument that the trial court erred in not giving his proposed instruction for RCW 16.08.020, the appellate court agreed. While the trial court found that the statute only applied to stock animals, the appellate court noted that the law does not define the term "domestic animal." Using the plain dictionary meaning for "domestic" - "belonging to or incumbent on the family" - and for "domestic animal," this court stated that "Little Bit certainly belonged to Wilson's family" and a dog fits the meaning of "domestic animal." Finally, the court found that the "reasonably necessary" requirement from the common law cases on shooting domestic animals cannot be grafted onto the statutory requirements of RCW 16.08.020. Thus, the trial court's refusal to give defendant's proposed instruction based on RCW 16.08.020 cannot be grounded in the reasonably necessary common law requirement. The trial court's refusal to give the proposed instruction was not harmless. As such, the appellate court reversed Wilson's conviction and remanded the action for further proceedings.
People v. Restifo --- N.Y.S.3d ----, 220 A.D.3d 1113, 2023 WL 7028284 (N.Y. App. Div. 2023) This is an appeal of a verdict to convict defendant of aggravated cruelty to animals. Defendant was walking his two pit bull dogs and allowed the dogs enough leash space to reach a pet cat resting on the steps of its owner’s porch. The cat’s owners, who were witnesses to this event, watched as the pit bulls mauled their pet cat. When the witnesses asked defendant to stop his dogs, defendant attempted to flee with his dogs still carrying the cat’s body in its mouth. The witnesses pursued and eventually, the dog dropped the deceased cat’s body. Defendant was charged with aggravated cruelty to animals and overdriving, torturing and injuring animals, and failure to provide proper sustenance. Defendant was convicted, and appealed the aggravated animal cruelty charge. Defendant argues that the verdict was not supported by sufficient evidence. The court here found that defendant was well aware that the dogs were aggressive, even keeping them separate from his young son because of their propensity to attack smaller animals. There was also testimony from another neighbor of defendant allowing his dogs to chase feral cats off her porch without stopping them, and testimony regarding defendant’s dog previously mauling a smaller dog without defendant intervening to stop them. Defendant was warned by animal control to muzzle them, but refused to do so. Defendant also bragged to co-workers about how he let his pit bulls go after other dogs and attack wild and old animals. Accordingly, the court found that defendant was aware of the dogs’ aggressive behavior and affirmed the holding of the lower court.
Cantore v. Costantine --- N.Y.S.3d ----, 2023 WL 7560690 (N.Y. App. Div. Nov. 15, 2023) This is an appeal of a personal injury case brought by plaintiff, the mother of the injured child, against the owners of a dog that caused the injury and the owners of the restaurant where the injury occurred. The injury took place at a dog-friendly restaurant both parties were dining at, where the dog owned by defendants bit a three-year-old infant. Plaintiff alleges that the restaurant owners knew of the dog’s vicious propensities but allowed it on the premises, and are liable along with the owners of the dog for the injuries sustained by her child. Defendant restaurant owners contend that they did not know of the dog’s vicious propensities, and that their restaurant requires that dogs be leashed and the dog was leashed at the time of the bite. Plaintiff argues that, under the Hewitt case, a standard negligence analysis should be used rather than an analysis based on knowledge of vicious propensities. Plaintiffs also argue defendant restaurant owners owed a duty of care to their customers, which was breached by allowing a dangerous dog on the premises. The lower court denied defendants motion for summary judgment because there were unresolved issues of fact as to the restaurant defendants’ duty to their patrons and the foreseeability of the injury. This appeal followed. On appeal, the court reversed the order of the lower court because defendants established that they did not have any knowledge of the vicious propensities of the dog and that they exercised reasonable care through their signage and policies to protect restaurant patrons from the risk of harm that allowing animals on the premises poses. Defendants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted.
People v. Smalling --- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019) Defendant was cited for allowing a dog controlled or owned by her to cause injury or death to a service dog in violation of California’s Penal Code. The offense was an infraction. The defendant pled no contest and was fined $157. The service dog’s owner requested a restitution hearing, but the trial court denied the request stating that since the offense was an infraction, a restitution hearing was not permissible. The service dog owner appealed the decision of the trial court. The Court ultimately found that the trial court incorrectly stated that a victim of an infraction is not entitled to restitution. Both the California Constitution and the California Penal Code (the very statute that the Defendant was convicted of violating) entitle the victim to restitution. The California Constitution specifically states that restitution shall be ordered in every case regardless of the sentence or disposition of a crime in which a victim suffers a loss. The Court stated that an infraction is a crime, therefore, a restitution hearing is mandatory. The statute that the Defendant violated (section 600.2 of California’s Penal Code) also stated that a defendant shall be ordered to make restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is an infraction and ultimately denying the victim restitution. The Defendant argued that an order for payment of restitution would be improper because she was never advised that victim restitution would be a consequence of her plea and that such an order would violate her plea agreement. She also argued that the trial court found, in good faith, that restitution was unnecessary. The Court, however, found the Defendant’s arguments unpersuasive. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.
Mercado v. Ovalle 973 N.Y.S.2d 171 (N.Y.A.D. 1 Dept., 2013)

In this New York case, plaintiff appealed the lower court's order granting defendants' motion for summary judgment in a dog bite case. Defendants, a grocery store and its owner, asserted that they did not own the two pit bulls that attacked plaintiff. The only evidence plaintiff presented showing defendants' ownership and control over the dogs were hearsay statements from the mechanic who operated the lot that the dogs guarded. The court found this evidence that defendants occasionally walked and fed the dogs insufficient to show that they "harbored" the dogs. Affirmed.

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