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Gaffney v. Kennedy9/2/2003
This opinion is uncorrected and will not be published in the Official Reports.
Animals--Knowledge of Vicious Propensity
(*1)
THIS IS A PRESELECTED CASE -- DO NOT REJECT
(*2)
(*3)
The defendant moves for an order, pursuant to CPLR Rule 3212, granting summary judgment dismissing plaintiff's complaint.
The action is one to recover for personal injuries allegedly sustained by the plaintiff while she was a guest in the defendant's home. The plaintiff alleges that she was bitten by the defendant's dog, Spunky, a Border Collie mix who the defendant had owned for approximately six months. Spunky was an eight year old dog when he was adopted by the defendant.
Consideration of the defendant's motion requires this Court to address an area in which there are several levels of conflict and confusion - conflict between the Appellate (*4)Divisions, conflict within the Second Department, and conflict between what the courts say, and what they in fact do.
In actions to recover for injuries suffered in a dog bite attack, it is black-letter law that the plaintiff must show that the dog had "vicious propensities" known to the owner. Often, this has meant showing not simply a "nasty" disposition, but prior actual "bad acts" of the dog - in the classic formulation, at least one prior bite - in the absence of which summary judgment is granted dismissing the action.
Recent appellate authority, however, has indicated that a dog's vicious propensities (and the owner's knowledge of them) may in certain circumstances, even in the absence of evidence of any prior bad acts, be inferred from the nature of the attack itself, the severity of the injuries, and even the reputation for viciousness of the breed involved. At the very least, the showing necessary to avoid summary judgment, and/or sustain a verdict, will be judged on a sliding scale based on the presence or absence of the foregoing factors.
(*5) The plaintiff argues that it was the dog's response to the doorbell when her son appeared that precipitated the incident. The plaintiff theorizes that Spunky jumped against the storm door in an attempt to get out and then bite her son. Said response, the plaintiff posits, could have been reasonably anticipated by the defendant. Plaintiff states the defendant failed to control his dog, a dog she maintains was admittedly kept by the defendant for purposes of "protection," which indeed had growled at her during prior visits to the defendant's home, and which at other times was confined to another part of the house. The plaintiff here asserts that the fact that Spunky not only attacked the plaintiff, but actually bit the defendant, the dog's own owner, renders it so improbable that this was a dog with no prior history of aggressive behavior that a jury is entitled to consider the issue.
The defendant asserts that Spunky bit only because his paw became painfully caught in the door when he ran to greet, not attack, the plaintiff's son.
Summary judgment is proper when the proponent sets forth that party's entitlement (*6)by evidentiary proof in admissible form (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 ). Once a party makes a sufficient prima facie case for obtaining summary judgment, it then becomes the opponent's burden to produce proof in admissible form to show that there indeed exists a genuine triable issue of fact (McDermott v. South Farmingdale Water District, 167 A.D.2d 517, 562 N.Y.S.2d 191 [2nd Dep't 1990]).
It is well settled that to establish a prima facie case for an injury caused by a domestic animal, a plaintiff must prov
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