pooch041217 New York requires proof that that a dog exhibit prior, violent propensities in order to hold the owner liable for a dog bite. What happens in a situation where the animal does not attack but causes harm due to its owner’s negligence?

In an interesting case, the dog owner tied his dog, Kenny, to an unsecured bicycle rack outside a pizzeria. The dog owner did not check if the rack was bolted to the ground. When the dog’s owner entered the store, the dog got spooked and was able to pull the rack free. The dog began running down Lexington Avenue. A merry chase ensued where the owner was chasing the dog which was running with the bike rack dragging behind him. The rack hit a pedestrian who was trying to help. The injured party claimed that the dog owner was negligent in securing the dog to a non-secure bike rack. There was no claim that the dog was vicious and bit plaintiff.

The appellate court dismissed the case because there was no showing that the dog had prior, violent propensities even though the dog’s alleged, violent nature was not an issue. The court noted that it was constrained to rule this way based on Court of Appeals rulings that require a showing of the animal’s prior viciousness even though the accident did not involve an animal attack. The Appellate Division ruled that if it were not so constrained, it would have allowed the case to go trial based on the dog owner’s negligence in tying a high-spirited, large dog to an unsecured rack. See Scavetta v. Wechsler, App. Div., 1st Dept, March 16, 2017.

We had our own case where a client, an older, petite lady, was caused to fall when a great Dane reared-up on his legs and attempted to kiss the client’s face. The client fell backward. The dog did not bite her. The dog was merely playful, and the owner should have kept her dog in check.

I believe that New York’s highest court will review this case and hold that the owner is responsible for negligence in handling a high spirited dog who managed to run away. I believe that the Court of Appeals will find a way to reinstate this case along the lines of its recent decision which allowed a motorist to recover against the farmer for allowing its cow to wander into the middle of the road which resulted in vehicular collision. In that case, discussed on p. 4, there was no proof that the cow was vicious or had a propensity to wander. The claim allowed by the Court of Appeals was that the farmer did not adequately fence-in the animal.