This was originally published on the SGR Blog.
Did “O’Malley” Already Have One or Two?
Amy C. Farrell alleged that she was injured by O’Malley, a vicious dog belonging to Peter M. Boushie. Amy’s husband, Kevin L. Ladue, alleged that he was deprived of his wife’s services, society, and companionship as a result of her injuries. After discovery, Farrell and Ladue moved for summary judgment.
New York’s courts have long recognized that the owner of a dog 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. Liability in such cases is absolute. It is not dependent upon proof of negligence on the part of the dog’s owner.
The complaint alleged: “At all times herein mentioned, defendant, Peter M. Boushie, was an owner of a dog, a husky, named O’Malley… Prior to the incident involving plaintiffs, defendant[‘s]… dog… bit Shelly J. Brown… Defendant’s dog which bit Shelley J. Brown was O’Malley. Shelley J. Brown was caused to suffer injuries from the bite on her right arm, including three puncture wounds and a possible broken knuckle on her right hand… Defendant was aware or should have been aware of the dog bite by his dog O’Malley to Shelley J. Brown contemporaneously with or shortly after the bite occurred.”
In his answer to the complaint, Boushie admitted the foregoing allegations of the complaint. So, there was no factual dispute regarding the allegation that he knew, or should have known, about the prior bite.
The complaint also alleged that, prior to allegedly injuring Farrell, and prior to injuring Brown, the dog also injured Chad T. Williams by biting him. However, Boushie denied those allegations.
During the discovery process, Boushie was served with a Notice to Admit pursuant to the Civil Practice Law and Rules. The statute states that:
“[e]ach of the matters to which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.”
Boushie did not respond to the Notice to Admit, which mirrored the allegations of the complaint with respect to the dog biting Williams. Therefore, the following allegations, taken from the Notice to Admit, were deemed admitted by Boushie for purposes of this summary judgment motion:
“Defendant Peter M. Boushie’s dog… on or about July 15, 2016, bit Chad T. Williams… Defendant’s dog which bit Chad T. Williams was O’Malley. Chad T. Williams was caused to suffer injuries from the bite on his right lower arm, including broken skin, discoloration and swelling. Defendant was aware of the dog bite by his dog O’Malley to Chad T. Williams shortly after the bite occurred.”
Based upon Boushie’s own admissions, he was aware that his dog, O’Malley, had bitten and injured two people prior to the incident involving Farrell. There was no factual dispute that Boushie was aware of his dog’s vicious propensities.
Furthermore, there was no factual dispute that Boushie’s dog actually bit Farrell. In his answer, Boushie denied knowledge or information sufficient to form a belief as to the truth of the allegations in the complaint pertaining to the actual dog bite. However, in opposition to the summary judgment motion, he conceded the attack. Rather than arguing that there was no proof of the attack itself, Boushie argued that Farrell assumed the risk of such an attack by trying to bring O’Malley back to his property. However, the Court found that the defense failed under the substantive and procedural facts of the case.
Boushie pleaded the affirmative defenses of “assumption of the risk” and “contributory negligence” in his answer. However, his opposition to the motion for summary judgment was not based on contributory negligence. Only assumption of the risk was raised.
The complaint alleged that:
“Plaintiff Amy C. Farrell was not aware of the prior incidents involving bites to Chad T. Williams or Shelley J. Brown by Defendant’s dog on or before July 8, 2018.”
Boushie, in his answer, denied knowledge or information sufficient to form a belief as to the truth of that allegation. However, two and one-half years had expired since the filing of the answer. The Court had issued several discovery orders and, despite the expiration of every discovery date, Boushie failed to set forth any facts which called into question the assertion that Farrell lacked knowledge of the dog’s vicious propensity at the time of the attack.
A plaintiff has not assumed a risk unless he knows and fully appreciates such risk. And the failure to use reasonable care to discover the risk may constitute contributory negligence, but it is not assumption of risk. Farrell alleged that she was not aware of the risk posed by Boushie’s dog. After two and one-half years of litigation, Boushie did not offer anything to contradict that assertion.
Bare allegations are insufficient to create a genuine issue of fact. Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion. Rather, the opposing party must establish the existence of material facts of sufficient import to create a triable issue.
There was no reference to contributory negligence in Boushie’s opposition papers, and there was no factual support for the affirmative defense of assumption of risk. So, the Court granted the motion for summary judgement as to Boushie’s strict liability for the consequences of the dog bite.
That did not relieve Ladue of his burden to prove that he was deprived of Farrell’s wife’s services, society, and companionship as a result of her injuries. Nor did it absolve either of them of the obligation to establish their respective damages.