This was originally posted on the SGR Blog
Was Property Owner Liable to Injury Victim?
On May 5, 2017, Donna Bochman allegedly was bitten by “Bentley”, a pit bull owned by William Santos. The incident took place in an outdoor common area of an apartment complex operated by Colonial Property Management in Middletown, New York.
According to Bochman:
I was walking to Apartment 4 and I was walking on the thing. I saw [Mr. Santos’] dog. I tried to move over. His dog came up to me, because his dog was in the middle, his dog came up to me and tried to sniff my crotch and I said no, I just put my hand no, and next thing I know his dog bit me. At that point I was shocked. My arm was in his mouth. Mr. Santos didn’t seem to notice that the dog had me because he was walking and that’s when I was Oh, my God. Oh, my God. And I remember seeing him hit his dog to try and get him off. He’s hitting Bentley, Bentley and he had to open his mouth to get him off of my arm. I just remember screaming Oh, my God.
According to Santos:
We was walking towards the parking lot, Miss Bochman was walking from the parking lot to the complex, you know, she called out his name, she knew him before so she knows who he is, so he got excited and as we walked on the little sidewalk, so I’m walking forward, she’s coming down, she had bags in her hand, she had her hoodie over her head and she went down to pet him like she always did and I guess out of excitement he tried to grab the bags out of her hand and nipped her in the wrist, that’s what I saw.
The incident left Bochman with a torn jacket and a 2.5 centimeter laceration with exposed subcutaneous fat in her right anterior forearm.
Both Santos and Colonial denied prior notice that Bentley had ever manifested any vicious propensities. But Bochman testified that she had seen Bentley barking at people and chasing small animals—but acknowledged that she had never seen the dog bite anyone or jump on anyone prior to May 5, 2017. The evidence of vicious propensity consisted of Bochman’s testimony that Santos told her that Bentley had previously bitten him, which Santos denied and certain entries in Bentley’s veterinary records.
The entry for March 29, 2015 stated:
…P was in room for more than 1 hour, took multiple family members & VA to restrain for vaccines—recommend bringing in w/basket muzzle…
The entry for August 29, 2015 stated:
Client brought pet in for Proheart injection—unable to restrain or muzzle pet—trying to bite owner…
The entry for September 25, 2015 stated:
Unable to fully examine pet due to aggression—client declined sedation— after ½ hour struggle client was able to muzzle pet for Proheart inj….
The entry for April 19, 2016 stated:
…Aggressive. Muzzle for exam…
The entry for September 27, 2016 stated:
Aggressive. Needs to be sedated in order to exam…
In 2002, the Court of Appeals reaffirmed New York’s longstanding rule that the owner of a domestic animal who knows or should have known of the animal’s vicious propensities is strictly liable for the harm the animal causes as a result of those propensities. And in 2006, the Court of Appeals explicitly held that when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the vicious propensity rule articulated in 2002. Following which, the Court of Appeals has consistently held that a cause of action for common law negligence against a dog’s owner is not available to plaintiffs injured due to the dog’s vicious propensities.
To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and the owner knew or should have known of the dog’s vicious propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.
The evidence here was sufficient to demonstrate the existence of a triable issue of fact whether Santos knew or should have known of Bentley’s vicious propensities. And Santos’ alleged admission to Bochman that Bentley had previously bitten him may properly be considered in determining the issue. The alleged admission, taken together with veterinary records which unambiguously reflect Bentley’s propensity for aggression even to the point of biting his owner, gave rise to a triable issue of fact whether Santos knew or should have known of the dog’s proclivity to act in a way that put others at risk of harm.
Santos’ motion for summary judgment dismissing Bochman’s complaint was denied.
A landlord may be liable for the attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined. To recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog.
Colonial established prima facie entitlement to summary judgment by demonstrating that it was not aware, nor should it have been aware, that the dog had any vicious propensities. Bochman failed to demonstrate the existence of any triable issue of fact. The evidence of Bentley’s vicious propensity consisted of Santos’ admission to Bochman and certain entries in Bentley’s veterinary records, none of which was known, or should have been known, to Colonial. In the absence of actual or constructive knowledge of the animal’s vicious propensities, Colonial should not be held responsible for its tenant’s dog’s attack either in strict liability or in common law negligence.
Colonial’s motion for summary judgment dismissing Bochman’s complaint was granted.
Separate trials on liability and damages are generally to be held in personal injury cases. Bochman relied on one exception to that rule—that a unified trial is appropriate where the plaintiff’s injuries have an important bearing on the issue of liability. The jury may consider the nature and result of the attack on the plaintiff in determining whether the dog has vicious propensities.
Here, the nature of Bentley’s attack may evince viciousness inasmuch as, on Bochman’s account of the matter, Santos had to strike the dog to get him to release her arm. However, evidence of the injury—a small laceration on her right forearm—even if relevant and admissible was not especially probative of viciousness and would not have an important bearing upon the determination of liability. Under the circumstances, the Court in its discretion denied Bochman’s motion for a unified trial of both liability and damages.