Alabama
Scott v. Donkel
671 So.2d 741
Court of Civil Appeals of Alabama, 1995
FACTS: Danielle Scott, a minor, was bitten by a dog that was kept on property owned by William J. Donkel III and leased to William Beasley. The dog belonged to Beasley’s roommate and was typically kept in a fenced in area. At the time of the attack the dog was roaming free on the street in front of Donkel’s property. Scott is suing Donkel for negligence alleging that Donkel, as the landlord, had the right to inspect the premises and terminate Beasley’s lease agreement, and that Donkel had known, or should have known, that the dog had vicious propensities. The trial court entered summary judgment in favor of Donkel.
ISSUES: Is there a genuine issue of material fact as to whether Donkel was liable for the dog kept on his property?
HOLDING: No, the trial court was correct in their summary judgment ruling. Scott urges that there is a genuine issue of material fact as to whether Donkel knew about the dog’s dangerous propensities and was therefore liable for removing it from the premises and ensuring the surrounding areas were safe. Scott did not provide sufficient evidence that Donkel knew about the dog or was aware of any previous attacks. The court distinguished previous cases in which landlords were liable for conditions on adjacent streets, because in this case Donkel did no affirmative act to make the area unsafe. Because Scott could not establish that Donkel knew about the dog’s dangerous propensities and he did not do anything to make the area unsafe, the court ruled in favor of Donkel.
California
People v. Knoller
41 Cal.4th 139
Supreme Court of California, 2007
FACTS: Defendants, Marjorie Knoller and husband Robert Noel, owned two Presa Canario dogs, Bane and Hera, which previously belonged to an incarcerated client of theirs. The animals both weighed over 100 lbs and defendant’s had difficulty handling either animal. While living in their condo, the animals had several incidences of biting or threatening people and other animals. The defendants were notified by a veterinarian, behaviorist, and their neighbors that Bane and Hera were dangerous and should be muzzled and trained. The defendants did not take the advice and continued to walk the dogs without muzzle or other control devices. On January 26, 2001 Knoller was taking Bane back into the condo from a walk when Bane lunged towards neighbor Diane Whipple. Knoller lost control of Bane who subsequently mauled Whipple to death. A neighbor called 911, while Knoller claims she tried to stop Bane from attacking Whipple. The trial jury found Knoller guilty of second degree murder and both defendants guilty of involuntary manslaughter. The Court of Appeals reversed the trial courts ruling and granted Knoller’s motion for a new trial on the second degree murder charges.
ISSUES: Did Knoller act with implied malice sufficient to uphold a second degree murder charge?
HOLDING: The trial court and Court of appeals used incorrect standards for implied malice. The trial court held that Knoller could only be convicted of second degree murder if she appreciated that her actions created a high probability of someone’s death. The Court of Appeals ruled this standard was too high and that Knoller could be convicted if she acted knowing that her actions created a high risk of bodily harm. The Supreme Court found both of these standards erroneous and concluded that implied malice can be inferred only if Knoller acted with conscious disregard to human life. The case was remanded to the trial court to see if Knoller’s actions fit the standard of implied malice necessary for a second degree murder charge.
California
Chee v. Amanda Goldt Property Management
143 Cal.App.4th 1360
Court of Appeals of California, First District, Division 1, 2006
FACTS: Plaintiff, Lila Chee, a resident of a condominium in the Marina Seagate complex, appealed from a judgment entered in favor of all defendants on her complaint seeking damages for personal injuries she suffered when a dog belonging to Olga Kiymaz, a tenant of another unit in the same complex, jumped on Chee. Chee named the property owner Jerome Brown, the Marina Seagate Home Owner’s Association, Amanda Goldt Property Management, and two of its property managers as defendant’s in her complaint after Kiymaz filed for bankruptcy and was dismissed from the complaint.
ISSUES: Did Brown, The Association, Amanda Goldt, or the property managers have a duty to protect Chee from Kiymaz’s dog?
HOLDING: No, none of the defendant’s had a duty to protect Chee from Kiymaz’s dog. Because there were no reported incidences and neither Chee nor Brown had ever seen the dog display any dangerous characteristics, Brown had no reason to believe that he was dangerous. The court ruled that Chee’s reliance on general breed characteristics was not enough to conclude that the dog had dangerous propensities. Landlords owe no duty of care to their tenants if they have no knowledge of the dog’s dangerous propensities. Further, none of the defendants had a duty to inspect the premises in search of a nuisance or dangerous dog.
California
Yuzon v. Collins
116 Cal.App.4th 149
Court of Appeals of California, Second District, Division 1, 2004
FACTS: Plaintiff, minor Brian Yuzon, was bitten by a dog, Kemo, who resided with one of landlord Gerald Collin’s tenants. Yuzon alleged Collin’s liability due to his failure to warn or guard against the tenants’ dangerous dog. The trial court granted summary judgment in favor of the Collin.
ISSUES: Is Collin’s knowledge of Kemo’s presence and behavior on the property enough to infer liability?
HOLDING: No, Collin is not liable because he did not have actual knowledge of Kemo’s dangerous propensity or any past attacks. While Collin did have knowledge of Kemo’s residency, he was unaware of any dangerous characteristics Kemo may have possessed. The law requires that liability only be inferred if circumstances were such that the landlord must have known of the dog’s viciousness, but it may not be inferred if he should have known or did not know. The Court affirmed the trial courts ruling.
California
Portillo v. Aiassa
27 Cal.App.4th 1128
Court of Appeals of California, Sixth District, 1994
FACTS: Plaintiff Anthony Portillo was delivering beer to Race Street Liquors when he was attacked by a German Shepherd. Portillo sustained serious injuries and brought a cause of action against the dog’s owner, John Kim, and the owner’s landlord, defendant Henry Aiassa. Kim rented the property on which the attack occurred from Aiassa, who renewed the lease on July 18,1988 without inspecting the property. Kim kept the dog on the property at all times, and there was another attack two weeks prior to Portillo’s. Kim posted a sign warning customers about the “guard dog” and also posted a newspaper article which described Kim’s dog as having a “rotten disposition”.
ISSUES: Was Aiassa responsible for inspecting the premises and removing Kim’s dog?
HOLDING: Yes, Aiassa was aware of the presence of Kim’s guard dog and is obligated to use reasonable care in inspecting the premises before renewing a lease. If Aiassa used reasonable care he would have found the guard dog sign and newspaper article posted about Kim’s dog. When discovering these signs, a reasonable person would then make inquiries as to the disposition of the dog and discovered the dangerous propensities. In this case reasonable care would lead Aiassa to have knowledge that there was a dangerous dog on the premises thus making him liable. This court does not infer strict liability, so if reasonable care would not lead to the discovery of a dangerous dog there would be no liability placed on the landlord.
California
People v. Berry
1 Cal.App.4th 778
Court of Appeal, Sixth District, California, 1991
FACTS: Two year old James Soto lived next door to defendant Michael Berry. Berry was interested and involved in dog fighting, and owned three pit bulldogs. Berry informed James’ uncle that one of the dogs, Willy, was “vicious and dangerous,” and that if he got loose he could “do a job” on certain people. Berry also kept a wedge which he used to pry Willy’s mouth open. Berry kept Willy in a corridor between his house and a shed on a six-foot chain. However, there was unimpeded access to the corridor from the lawn. Berry told James’ mother that his dogs would not hurt her children. On June 13, 1987 James’ mother put him in a fenced patio and went inside to take care of one of her other children. James escaped and wandered into Berry’s yard where he was mauled to death by Willy. The trial court convicted Berry of involuntary manslaughter, keeping a mischievous animal, and keeping a fighting dog. Berry appeals.
ISSUES: 1) Whether the trial court erred in instructing the jury that a minor under the age of five years is not required to take precautions; 2) whether the trial court erred in its definition of mischievous; 3) whether the dog-bite statute defined Berry’s duty toward James.
HOLDING: 1) No, the trial court’s instruction that a minor under the age of five years is not required to take precautions was essentially correct. Any error in failing to require a finding concerning the victim’s age was harmless beyond a reasonable doubt. 2) Yes, the trial court’s definition of mischievous was overbroad. However, there was no reasonable possibility that the jury relied on the erroneous portion of the definition, i.e. found Berry guilty based on a “mischievous propensity” that would not naturally result in injury. As a result, the erroneous definition was not prejudicial error under any standard of review. 3) No, the civil dog-bite statute did not define Berry’s duty toward James. There is nothing in the statute to suggest it creates a defense in a criminal action.
Connecticut
Auster v. Norwalk United Methodist Church
894 A.2d 329
Appellate Court of Connecticut, 2006
FACTS: Virginia Auster sued the Norwalk United Methodist Church to recover for injuries caused by a dog that belonged to Pedro Salinas, an employee of the Church that rented an apartment on the premises. Auster was visiting the church for a meeting when she was bitten Salinas’ dog. The trial court ruled in favor of Auster, and the defendant appealed.
ISSUES: Was the Church strictly liable for the damages caused by Salinas’ dog?
HOLDING: No, the Church was not a keeper of the dog and was thus not strictly liable for Auster’s injuries. A keeper is defined in Connecticut statues as any person, other than the owner, harboring or having in his possession any dog. To harbor a dog is to afford lodging, shelter or refuge to it; possession is the exercise of dominion and control. The court found that because the Church did not care for the dog in any manner, and the dog resided only on the tenant’s living quarters that there was not enough evidence to prove that the defendant owned or harbored the dog. The case was remanded to trial for common-law negligence.
Stokes v. Lyddy
75 Conn.App. 252
Appellate Court of Connecticut
FACTS: The defendants, Christopher and Barbara Lyddy, owned an apartment building in which Tawana and Shawn Ruff resided. In December, 1996, the Ruff’s pit bull escaped and attacked plaintiff Rasha Stokes as she walked on the public sidewalk in front of the building. The attack did not occur on any portion of common area of the leased property. Stokes sued the defendants for negligence claiming that the defendants had a duty to protect her from the dog. The trial court granted summary judgment to the defendants.
ISSUES: Did the trial court err in granting summary judgment to defendants?
HOLDING: No, the trial court did not err in granting summary judgment to the defendants. The court found that even in viewing the facts in the light most favorable to Stokes, she raised no issues of material fact for the court to decide. There was no evidence that the dog was in the custody of the defendants. There was no evidence that defendants were owners, keepers, or harborers of the dog and therefore they were under no duty to protect Stokes from the dog. The Appellate Court therefore affirmed the trial court’s decision to grant summary judgment to the defendants.
Federal
Parker v United States
393 F.Supp.2d 912
United States District Court, D. South Dakota, Central Division, 2005
FACTS: Marilyn Parker was bitten by a dog on October 20, 2001, in Mission, South Dakota, while on the grounds of housing units owned and maintained by the Bureau of Indian Affairs (“BIA”). The dog that bit Parker belonged to tenant Roan Eagle’s daughter. The dog, “Cuddles”, was tethered to a garbage can and could not reach the end of the property. Parker was walking between the Roan Eagle house and their adjacent neighbor to attend a rummage sale on the Roan Eagle property when Cuddles came out from underneath a parked car and bit Parker. Parker was trying to avoid the dog as she had heard they were watch dogs and “mean dogs”. Parker sustained a tear of her left lateral hand and a bruise on her leg. Parker’s complaint states a cause of action under the Federal Tort Claims Act.
ISSUES: Was the BIA negligent for failing to take reasonable action when having knowledge of a dangerous condition? Did BIA have an obligation to remove the dog from the property or to post warnings of the dog’s presence?
HOLDING: No, the BIA was not negligent and had no duty to remove the dog or post warnings of the dog’s presence. South Dakota follows the common law rule that a landlord that has parted with full possession of the premises to the tenant is not liable for injury to a third party, even if the injury is caused by the tenant’s negligence. The Roan Eagles had full possession and control of their home to the exclusion of the BIA. There is an exception to the common law ruled where an undisclosed dangerous conditions exists at the time the lease is entered into which condition the lessor knew or should have known to exist. Parker must show, by a preponderance of evidence, that BIA knew or should have known that the Roan Eagles had dangerous dogs on the property. There were no complaints ever made about the Roan Eagles dogs to anyone in the BIA. Parker failed to meet her burden of proof.
Florida
Ramirez v. M.L. Management Co., Inc.
920 So.2d 36
District Court of Appeal of Florida, Fourth District, 2005
FACTS: Appellant Jemma Ramirez and her children, including daughter Carlina, were tenants at an apartment complex owned by M.L. Management and known as Lake Villas. The apartment complex bordered a park, which was owned by the town. However, Lake Villas advertised the availability of the park to tenants in its brochure as well as on its website, leaving tenants confused as to whether the town or the apartment complex owned the park. In addition, Lake Villas allows pets, although it prohibits certain breeds of dogs, including pit bulls. Tenant Keith Poole owned two pit bulls, which were occasionally loose in the apartment. Poole had not been asked to leave the apartment complex for violation of the building’s rules. One day the Ramirez children’s grandmother took them to play at the park. While they were there, Poole’s two pit bulls approached the family. When Carlina skated away on her rollerblades, the dogs attacked her. Carlina suffered severe injuries, which required plastic surgery to repair. Ramirez filed suit against M.L. Management for damages, alleging that it had violated its duty to its tenant by permitting known danger of the dogs on its premises. The trial court granted summary judgment in favor of M.L. Management, concluding that since the incident occurred off the leased premises in the park, M.L. Management could not be liable for Carlina’s injury. Ramirez appeals.
ISSUE: Did there remain a genuine issue of material fact as to whether M.L. Management had extended the operations of Lake Villas to include the park, which would preclude summary judgment?
HOLDING: Yes, there was a genuine issue of material fact as to whether M.L. Management had extended its operations to park. A landlord owes a duty to its tenant, and therefore the boundary of the premises is not dispositive of the landlord’s liability. Summary judgment should not have been issued; the appellate court reversed for a trial on the merits.
Florida
Roberts v. 219 South Atlantic Blvd., Inc.
914 So.2d 1108
District Court of Appeal of Florida, Fourth District, 2005
FACTS: Appellant Patrick Roberts sued Atlantis nightclub and employee Alan Rohloff for negligence arising out of a dog bite. As Roberts walked by Rohloff’s truck, Rohloff’s dog, a thirteen-year-old chocolate Labrador retriever, stuck her head out of the truck window and bit Roberts. Rohloff had been bringing his dog with him to work for two years. The Circuit Court awarded summary judgment to Atlantis. Roberts appeals.
ISSUES: Whether Atlantis was liable to Roberts for injuries caused by Rohloff’s dog.
HOLDINGS: No, Atlantis was not liable to Roberts. The facts of the case do not meet the four-prong test necessary for holding an employer liable for injuries caused to a third party by employee’s dog.
Florida
Tran v. Bancroft
648 So.2d 314
District Court of Appeal of Florida, Fourth District, 1995
FACTS: A tenant’s next door neighbor was attacked by tenant’s dog when the dog leaped over the fence and bit the neighbor off of the leased property. The neighbor sued the landlord of the property under a common law negligence claim.
ISSUES: Can a landlord be held liable for an attack by a tenant’s dog that occurs away from the leased premises on property that is not owned by the landlord?
HOLDING: A landlord has no duty to prevent injuries to third parties caused by a tenant’s dog away from leased premises. Although the landlord in this case knew that his tenant kept a vicious dog, the dog could escape from the premises, and he had control over whether the dog could reside on the leased property there is no liability for the dog’s actions off of the leased premises.
Georgia
Coogle v. Jahangard
271 Ga.App. 235
Court of Appeals of Georgia, 2005
FACTS: Eleven year old Kunisch was bitten by a dog owned by Green. Kunisch’s mother, Coogle, filed action not against Green, but against the dog’s previous owners, Hamid and Jahangard, claiming that they were liable because they gave the dog to Green knowing the dog had bitten someone before, but failed to inform Green of the dog’s dangerous propensity. Coogle’s theory was that a party placing a dog in the “stream of commerce” has a duty to warn of the dangers associated with the dog, and is liable to third parties harmed by the dog.
ISSUES: Whether Jahangard should be held liable for placing the dog into the stream of commerce without disclosing the alleged dangerous nature of the animal based on its history.
HOLDINGS:
1) The trial court did not err in granting summary judgment to the Jahangards.
2) There was no contract between any of the parties and Coogle has pointed to no law placing a duty upon a dog owner to warn a person to whom he is giving a dog of a prior biting incident.
3) The court is not persuaded by Coogle’s attempts to analogize this case involving the transfer of dog ownership to cases involving product liability and the placement of defective products into the stream of commerce.
4) Georgia law imposes upon a manufacturer of personal property certain duties, including a duty to warn users of its product of dangers arising from the use of the product, regardless of privity. There is no such statutory duty imposed upon a person transferring the ownership of a dog.
5) The cases cited are simply not on point and do not support Coogle’s position regarding liability of a dog owner to third parties after the owner has given the dog away. Where there is no legal duty owed to a plaintiff, there is no cause of action in negligence.
Georgia
Ranwez v. Roberts
601 S.E.2d 449
Court of Appeals of Georgia, 2004
FACTS: Appellee Scott Roberts is a landlord who entered into a lease with Glenn Forrest in May 1999. Forrest was to rent the house next door to another one of Roberts’ tenants, appellant Helene Ranwez. Forrest owned two pit bulls, which Roberts did not know before entering into the lease agreement. After the dogs did extensive damage to the house Forrest was renting, Roberts told Forrest to either get rid of the dogs or erect a fence and confine them inside of it. In March 2000 Forrest’s female pit bull had a litter of puppies and Forrest kept two without Roberts’ knowledge. On December 27, 2000, one of Forrest’s relatives let the dogs loose in the front yard. As Ranwez and her dog started to walk past the house where Forrest was living, Forrest’s dogs attacked her dog. Ranwez fell, and the four pit bulls attacked her, injuring her on the face, arm and back. Prior to this incident, Forrest already had multiple citations from animal control pertaining to his two dogs. Ranwez sued Forrest and Roberts. The trial court granted summary judgment in favor of Roberts. Ranwez appeals.
ISSUE: Whether Roberts, as landlord, is liable to Ranwez for injuries caused by his tenant’s dogs.
HOLDING: No, Roberts is not liable to Ranwez for the injuries which Forrest’s dogs inflicted. Roberts was an out-of-possession landlord renting the residence to Forrest under a purchase option agreement. According to Georgia statute, a landlord is not responsible to third parties for damages resulting from the negligence or illegal use of the premises by the tenant after fully parting with possession and right of possession.
Georgia
Gibson v. Rezvanpour
601 S.E.2d 848
Court of Appeals of Georgia, 2004
FACTS: James and Susie Foulks owned a house and two dogs. They decided to sell the house and listed it with Martin. Martin met with the Foulkses at their home several times and never observed any vicious or dangerous acts from the dogs. The Foulkses never told Martin of any dangerous propensities on the part of the dogs, and they deny ever having seen such behavior. When Martin listed the house, she indicated that the Foulkses had pets. In August 1999 Sue and Davis Gibson contacted real estate salesperson Mercedeh Rezvanpour for assistance in buying a home. Rezvanpour printed a “short form” listing of the Foulks’ property, which did not include information that there were pets. While Rezvanpour was showing the Foulks’ home to Sue Gibson, Gibson opened a door leading to the backyard. When she did, one of the dogs bit her on the leg. The Gibsons filed suit against the Foulkses, Rezvanpour, Martin, Martin’s real estate agency and a real estate broker. The State Court granted summary judgment in favor of all the defendants except the Foulkses. The Gibsons appeal.
ISSUES: Whether the trial court erred in granting summary judgment to Rezvanpour, Martin, the real estate agency and broker.
HOLDINGS: No, the trial court did not err in granting summary judgment to the real estate agents and brokers. Even if the real estate agents and brokers could be considered “occupiers” of the home (under statute which provides that where occupier of land induces others to come upon his premises for any lawful purpose, he is liable in damages for injuries to person caused by his failure to exercise ordinary care in keeping premises safe), the Gibsons have no claim against any of the real estate agents and brokers based on this statute because the real estate agents and brokers had no knowledge that the dogs were dangerous.
Illinois
Anzalone v. Kragness
826 N.E.2d 472
Appellate Court of Illinois, First District, First Division, 2005
FACTS: On June 7, 2002, plaintiff Mary Ann Anzalone, an unmarried woman with no children, brought several cats to the Kragness Animal Hospital for boarding. Among these was her four-year-old female cat Blackie. On June 19, 2002, a hospital employee let Blackie out of her cage and brought her to an exercise room. The employee did not securely close the door of the room, and then proceeded to let a rottweiler dog into a nearby room. The dog got into Blackie’s room and attacked and killed Blackie. Anzalone brought claims against the veterinarian and Kragness Animal Hospital for breach of bailment, negligence, breach of fiduciary duty and intentional infliction of emotional distress, seeking $100,000 in damages plus costs and attorneys fees. The circuit court dismissed the intentional infliction of emotional distress claim, ordering Anzalone to file an amended complaint with a new prayer for relief. Instead of filling a second amended complaint Anzalone appeals.
ISSUE: Whether the circuit court erred in dismissing Anzalone’s complaint for failure to adequately allege damages.
HOLDING: Yes, the circuit court did err in dismissing Anzalone’s complaint for failure to adequately allege damages. The challenge to the valuation of damages is not fatal to Anzalone’s cause of action since she adequately alleged the existence of damages.
Illinois
Klitzka ex rel. Teutonico v. Hellios
810 N.E.2d 252
Appellate Court of Illinois, Second District, 2004
FACTS: A minor invitee, Alexus, of the tenants Mark and Amanda Hellios was bitten by their dog, Haley. Alexus brought a negligence action against the landlords of Mark and Amanda’s home, Michael and Trudy Hellios. Michael and Trudy moved for summary judgment, arguing that they were landlords who had no control over the premises and therefore owed Alexus no duty of care. Alexus appealed, arguing that summary judgment was inappropriate because there is a question of fact as to whether Michael or Trudy knew or should have known that Haley was dangerous, and that Michael and Trudy breached a duty to exercise reasonable care to prevent Alexus’ injuries.
ISSUE: Whether landlords Michael and Trudy owe a duty of care to tenants Mark and Amanda’s invitees to prevent injury from an attack by Mark and Amanda’s dog kept on the leased premises.
HOLDING: No, even if Michael and Trudy knew the dog was dangerous, they had no duty to protect Alexus because they retained no control over the portion of the premises where the injury occurred.
Illinois
Papesh v. Matesevac
223 Ill.App. 3d 189
Appellate Court of Illinois, 1991
FACTS: Denise Fay Papesh sued Barbara Matesevac for injuries sustained as the result of a dog bite. Barbara Matesevac bought the dog, Rupert, for her son, Jason, in 1985. At the time, her son lived with her and the dog was kept in a pen in the backyard. In 1988, Jason and Rupert went to live with Barbara’s ex-husband, Raymond. While Raymond and Jason were on vacation, Mrs. Papesh cared for Rupert, during which time, she sustained her injuries. The trial court granted summary judgment in favor of Barbara Matesevac finding that she did not have custody over the dog and therefore was not liable for his actions.
ISSUES: Did the trial court err in granting summary judgment to Barbara Matesevac?
HOLDING: No, the trial court did not err in granting summary judgment to Barbara Matesevac. The Appellate Court found that there was insufficient evidence to support a conclusion that Mrs. Matsevac was Rupert’s owner when the injury occurred. The plaintiff next argued that even if Mrs. Matesevac did not have physical custody of the dog, because the dog was technically owned by her son Jason, she was still liable as an “owner” under the Animal Control Act. The court found, however, that the Animal Control Act contemplates some level of care, control, or physical custody of the animal in an effort by the legislature to place the burden on parties who might be in the best position to prevent the animal from causing harm. The court, therefore, declined to extend liability to Mrs. Matesevac, a non-custodial parent, because she was not in a position where she could have controlled the dog or prevented the injury.
Kansas
State v. Hanson
89 P.3d 544
Supreme Court of Kansas, 2004
FACTS: Appellant Keith Hanson is the owner of three Staffordshire bull terrier mix dogs. On November 1, 2002, Hanson let the three dogs out and they disappeared, as they had done on previous occasions. The dogs went to the Pat Martin residence nearby, where they cornered and attacked the Martin family’s Labrador retriever, Max. Max was so badly injured that he had to be euthanized a few months later. The trial court convicted Hanson of three counts of permitting a dangerous animal to run at large. Hanson appeals.
ISSUES: 1) Whether testimony detailing the aggressive behavior of the dogs after the attack was admissible and 2) whether there was sufficient evidence to support Hanson’s conviction.
HOLDINGS: 1) Yes, the testimony from the director of the local animal shelter as to the dogs’ aggressive behavior toward other dogs while they were impounded at the shelter was admissible. 2) No, there was insufficient evidence to support Hanson’s conviction. There was not enough evidence that Hanson knew of his dogs’ dangerous or vicious propensities prior to the attack.
Louisiana
McBride v. XYZ Ins.
935 So.2d 326
Court of Appeal of Louisiana, Second Circuit, 2006
FACTS: Defendant Mrs. Hill owns a Chow named Smokey, who she keeps tied to a tree in her fenced-in backyard. There are three “Beware of Dog” signs posted near the yard. On the afternoon of April 24, 2003, while Mrs. Hill was at work, her twenty-year-old daughter Tierra West brought her friend Tasha McBride and her two children aged five and three to Mrs. Hill’s house. After entering the house, McBride’s two children ran into the yard to play on the swing set. Her three-year-old, Desiree, went over to Smokey and petted and hugged him. Smokey then bit Desiree’s right arm. West testified that McBride got there first and was swatting at Smokey’s face with a slipper or flip-flop. West then pulled Smokey away, and Smokey bit McBride on the arm. McBride filed suit individually and on behalf of Desiree, alleging that Mrs. Hill and her homeowners’ insurer, Allstate Insurance, were strictly liable and negligent for their injuries. Allstate answered that McBride was comparatively or contributorily negligent for allowing her three year old daughter to play with a dog unsupervised. The trial court awarded damages to Desiree but denied McBride’s claims for her own injuries. The court assessed costs 2/3 to Mrs. Hill and Allstate, and 1/3 to McBride. Allstate and Mrs. Hill appealed, and McBride answered the appeal alleging the court erred in denying her own claim for damages.
ISSUES: 1) Whether Smokey posed an unreasonable risk of harm; 2) whether McBride’s conduct in swatting Smokey with a shoe after he bit Desiree was provocation; 3) whether McBride and Desiree were entitled to future medical expenses for plastic surgery; 4) whether McBride was entitled to damages for her own injuries.
HOLDINGS: 1) Yes, Smokey did pose an unreasonable risk of harm. 2) No, McBride’s conduct in swatting Smokey with a shoe after he bit her daughter was not provocation. 3) Yes, McBride and Desiree were entitled to future medical expenses for plastic surgery. 4) Yes, McBride was entitled to damages for her own injuries. Trial court’s judgment is affirmed insofar as it held Mrs. Hill and Allstate liable for Desiree’s injuries, and reversed insofar as it absolved her of liability for McBride’s injuries.
Louisiana
Andrus v. L.A.D. Corp.
875 So.2d 124
Court of Appeal of Louisiana, Fifth Circuit, 2004
FACTS: Plaintiff Sheldon Andrus filed suit against defendants L.A.D. Corporation and Acceptance Insurance Company, alleging that on August 13, 2000, he suffered severe injuries from a dog attack. According to Andrus, he was a patron at De Auduong’s service station on the day of the attack, when he went over to the dumpster on the side of the building to throw away trash. A dog, Princess, who is owned by L.A.D. is kept behind the fence next to the dumpster for security purposes. Andrus claims that when he was walking away from the dumpster, Princess got out of the fence and attached him. He claims that the attack caused him to fall and sustain serious injuries. This series of events is disputed, however, with L.A.D. claiming that Princess did not escape from the fence. Moreover, L.A.D. claims that Princess has never gotten out of the fence and has never bitten anyone. At trial the jury returned a verdict in favor of Andrus, and awarded damages. However, the jury was charged with an erroneous strict liability charge, which led the jury to believe that it should return a verdict in favor of Andrus, even if it found that the dog did not escape from the yard but simply startled Andrus into falling. L.A.D. appeals.
ISSUES: 1) Whether Andrus met his burden of establishing that the dog Princess posed an unreasonable risk of harm, and 2) whether there is evidence to support a negligence cause of action against L.A.D.
HOLDINGS: 1) No, Andrus failed to meet his burden of proof. The evidence does not support a finding that Andrus’ injuries were caused directly by Princess, and a dog barking inside a fenced-in area does not pose as unreasonable risk of harm. 2) No, there is not evidence to support a negligence cause of action against L.A.D. Andrus did not prove that L.A.D. was negligent, thereby precluding recovery for Andrus’ injuries.
Louisiana
Herbert v. Broussard
886 So.2d 666
Court of Appeal of Louisiana, Third Circuit, 2004
FACTS: On July 8, 2002, Animal Control received a call from Michelle Miholic after a Rottweiler chased and pinned her husband in their backyard. An animal control officer responded and unsuccessfully attempted to catch the dog, Agnes, with his catch pole. He then called the police department for backup. Officer Broussard arrived, and when Agnes charged him with her mouth open, Broussard shot and killed her. Benjamin Herbert, Agnes’s owner, then filed suit for damages against the animal control officer, Officer Broussard, and the chief of police. The defendants, animal control officer, chief of police and Officer Broussard, filed a motion for summary judgment, seeking dismissal of the suit according to a statute that grants statutory immunity to officers for the killing of any dangerous or vicious dog. The trial court granted the motion and dismissed Herbert’s suit with prejudice. Herbert appeals.
ISSUES: 1) Whether the trial judge erred in ruling that Officer Broussard should be given statutory immunity, and 2) whether the trial judge erred in ruling that Officer Broussard, the animal control officer and the chief of police were not guilty of negligence in killing Agnes.
HOLDINGS: No and no. 1) The trial judge did not err in ruling that Officer Broussard should be granted statutory immunity for shooting a dog at large who was considered a dangerous or vicious dog. 2) Nor did the trial judge err in finding that Officer Broussard, the animal control officer and the police chief were not guilty of negligence in killing Agnes. The officers did not have a duty to safely contain Agnes after she got loose. Rather their duty was to protect the public from a dangerous or vicious animal.
Massachusetts
Krasnecky v. Meffen
777 N.E.2d 1286
Appeals Court of Massachusetts, 2002
FACTS: On April 24, 1993, two dogs owned by the defendants, David and Patricia Meffen, came onto Robert and Anne Krasnecky’s property and killed seven of their sheep. The Krasneckys learned of the killings the next day when they returned home from a trip. According to the Krasneckys, they regarded their sheep as their “babies,” going so far as to spend six or seven hours a day with them, giving them names, celebrating birthdays, and baking snacks for the sheep. In addition, there is evidence indicating that the Krasneckys suffered significant emotional distress and related physical problems not only upon learning of the death of the sheep, but also when they saw the dead sheep in a hole in their backyard. The Krasneckys sought damages for emotional distress, loss of companionship and society, and trespass against the Meffens. Partial summary judgment was granted to the Meffens on the trespass and intentional infliction of emotional distress claims. The trial court then entered judgment in favor of the Meffens, and the Krasneckys appeal.
ISSUES: 1) Whether the Krasneckys can recover for emotional distress; 2) whether the Krasneckys have a cognizable claim for loss of companionship and society; 3) whether there was sufficient evidence to support the trespass claim.
HOLDINGS: 1) No, the Krasneckys cannot recover for emotional distress for the slaughtering of their sheep by the Meffens’ dogs. The Krasnecky’s absence at the time of the killing of their sheep and the fact that they did not learn of the slaughter until the following day alone preclude any recovery for the emotional distress suffered by them. 2) No, the Krasneckys do not have a cognizable claim for loss of companionship and society. The absence of statutory authority precludes recovery on the Krasnecky’s loss of consortium claims related to the death of the sheep. 3) No, there was insufficient evidence to support the trespass claim. There has been no decision of this court in which the negligent release of a dog has been held to support a trespass action.
Minnesota
In re Molly
712 N.W.2d 567
Court of Appeals of Minnesota, 2006
FACTS: Appellant William Klumpp owns Molly, a German shorthaired pointer who weighs about 60 pounds. On October 24, 2004, Molly escaped from her kennel in Klumpp’s yard and ran over to the Mertensotto’s yard. Paul and Linda Mertensotto were in the yard with their six-pound dog Scooter at the time. Molly grabbed Scooter by the head with her mouth and shook her back and forth. The Mertensottos rushed Scooter to the vet where despite extensive injuries, the veterinarian requested permission to begin stabilization. The Mertensottos instead elected to have Scooter euthanized. The Mertensottos moved the district court for an order requiring Klumpp to appear and show cause why Molly should not be designated a dangerous dog under Minnesota statute. The district court issued the show-cause order and designated Molly a dangerous dog under Minnesota statue. Klumpp appeals.
ISSUES: 1) Whether the City of Arden Hills acted within its authority in enforcing the statute to declare Molly dangerous without first adopting it or promulgating procedures for its enforcement, and 2) whether Molly “killed” Scooter within the plain meaning of the Minnesota statute.
HOLDINGS: 1) No, Arden Hills exceeded its municipal authority by bringing the action against Klumpp for enforcement of the dangerous-dog statute when no Arden Hills ordinance contains an enabling procedure addressing dangerous-dog designations and when Arden Hills has never before adopted or promulgated such a procedure. 2) No, Molly did not “kill” Scooter within the plain meaning of the Minnesota statute. A factual finding that Scooter would certainly have died despite medical intervention is required in order to legally conclude that Molly killed Scooter within the meaning of the statute.
Minnesota
Hyatt v. Anoka Police Dept.
691 N.W.2d 824
Supreme Court of Minnesota, 2005
FACTS: Plaintiff Lena Hyatt sued the City of Anoka and its police department after she was injured by a police dog during the attempted arrest of her husband. Hyatt’s complaint alleged liability on the basis of a Minnesota statute which holds a dog owner strictly liable for injuries caused by the dog so long as the dog was not provoked and the victim was acting peaceably in a place where she had a lawful right to be. The City moved for summary judgment, asserting that the dog bite statute did not apply to police dogs and that the City was immune and that the police department is not a legal entity subject to suit. The district court denied the City’s motion, holding that the statute does apply to police dogs and that the City was not immune from suit. The court of appeals reversed, granting summary judgment to the City and holding that it would be “absurd” to apply the dog bite statute to police dogs because police officers are authorized to use reasonable force. Hyatt appeals.
ISSUE: Whether the Minnesota statute imposing liability on owners of dogs that injure another person applies to municipal owners of police dogs.
HOLDING: Yes, the statute does impose liability on municipal owners of police dogs; therefore Hyatt may pursue a claim under this statute. This case is remanded to the court of appeals with directions to consider the City’s claims of immunity and whether the police department is a legal entity subject to suit. If the court of appeals determines that the City is not entitled to immunity, then the case should be remanded to district court for trial of genuine issues of material fact.
Minnesota
Hannan v. City of Minneapolis
623 N.W.2d 281
Court of Appeals of Minnesota, 2001
FACTS: In June 2000, the City of Minneapolis Animal Control Division issued an order for the destruction of plaintiff Wilbur Hannan’s dog. The dog had been involved in several unprovoked bites and had been declared a dangerous dog. Despite numerous warnings to plaintiff to confine and muzzle the dog, plaintiff failed to do so, leading to four unprovoked bites in total. An administrative hearing was held during which plaintiff was allowed to testify and present several letters that friends and neighbors wrote on the dog’s behalf. The hearing officer affirmed the order to destroy the dog. Plaintiff appealed the decision by the hearing officer claiming that the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of his dog were precluded by state statute.
ISSUES: Are the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” precluded by state statute?
HOLDING: No, the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” are not precluded by state statute. Plaintiff claimed that the city ordinance conflicts with state law, citing matters where the city had provided for additional procedures for regulating dangerous dogs. The court found that while some of the city’s procedures were more severe than state law required, as long as the state has not expressly precluded local regulation, there is no conflict when the state regulates a topic and the local government adds additional regulations that provide consequences greater than those already provided. Plaintiff further insisted that the local ordinance was preempted by state law. Local ordinances are only preempted by state law when the legislature has fully and completely covered the subject matter, clearly indicated that the subject matter is solely of state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace. The court held that none of these grounds for preemption existed. The legislature has never expressly or impliedly stated that they had fully covered the subject matter or that the subject matter is solely of state concern. Further, they found that the regulation and control of dangerous dogs is a wholly legitimate issue for municipal interest because it primarily affects the local populace. The court also found plaintiff’s claim that his due process rights were violated to have no merit. The court therefore affirmed the hearing officer’s decision that the order for destruction was valid and duly authorized.
Missouri
Bussell v. Tri-County Humane Society
50 S.W.3d 303
Missouri Court of Appeals, 2001
FACTS: Scott’s Dalmatian, Samson, bit a child. After being released from quarantine, Scott moved Samson to live on a farm while trying to find another owner. Tinsley contacted the Tri County Humane Society regarding its procedures for accepting an animal, and Scott placed an advertisement in a newspaper attempting to give Samson away. Humane Society accepted Samson and placed him with another owner. Subsequently, Samson bit Bussell, the neighbor-child of Samson’s new owner. Bussell brought this action against Scott, Tinsley, and Humane Society, alleging that as the prior custodians of Samson, each failed to give adequate warning of Samson’s history and vicious propensities to the successor owner. The trial court granted summary judgment in favor of Scott and Tinsley. Bussell appealed.
ISSUES: Whether the trial court erred in granting summary judgment in favor of Scott because Scott owed a duty to the public to protect it from Samson and because there were genuine issues of material fact regarding the transfer of Samson’s ownership; whether the trial court erred in granting summary judgment in favor of Tinsley because there were genuine issues of material fact regarding whether she acted as an agent of Scott and whether she made misrepresentations of fact as to Samson’s nature.
HOLDINGS:
1) Under Missouri law, a dog owner is liable for injuries the dog inflicts only if the owner harbors the dog with actual or constructive knowledge that the dog has vicious or dangerous propensities.
2) A single prior bite does not confirm that a dog has vicious propensities without an examination of the surrounding circumstances.
3) Absent any surrounding circumstances regarding Samson, it is not possible to determine whether Samson demonstrated vicious propensities which would trigger Scott’s duty to protect the public.
4) Since there is no indication on the record that Samson’s bite was one which would trigger Scott’s liability for subsequent bites, Scott owed no duty to the public regarding Samson’s future actions.
5) Tinsley neither owned not harbored Samson at any time. She had no knowledge of their propensities. Hence, Tinsley cannot be held strictly liable for Samson’s actions.
Nebraska
State v. Lesoing-Dittoe
693 N.W.2d 261
Supreme Court of Nebraska, 2005
FACTS: Appellants Lorele Lesoing-Dittoe and Doug Dittoe own a female malamute-shepherd mix dog named Murphy. In 1996, Murphy left the Dittoes’ yard on four separate occasions and attacked other dogs in the area. After these occurrences the Dittoes installed a 6-foot-high three-rail iron fence at a cost of $20,000. No other incidents occurred until 2001. On March 17, 2001, Doug Dittoe accidentally left a gate open and Murphy and another of the Dittoes’ dogs escaped. Murphy attacked a dog, holding the dog by the back of the neck. The dog had an injury on his neck but no stitches were required. Two days later the Dittoes were notified by the sheriff’s office that Murphy had been declared a potentially dangerous dog. In April 2001, the State filed a motion for the destruction of Murphy. In the meantime, the Dittoes had added spring-loaded gates and padlocks to the fence and there had been no more incidents involving Murphy. Despite this, the county court ordered that Murphy be destroyed, and the district court affirmed this judgment. The Dittoes appeal.
ISSUE: Whether the district court erred when it affirmed the county court’s conclusion that the destruction of Murphy was “reasonable and proper.”
HOLDING: Yes, the district court did err in affirming the judgment that destruction of Murphy was “reasonable and proper.” The extraordinary measures to which the Dittoes have gone to prevent reoccurrence of Murphy’s escape, combined with the testimonies from expert witnesses are sufficient to establish that an order compelling destruction of Murphy is unreasonable.
New York
Marek v. Burmester
37 A.D.3d 668
Supreme Court, Appellate Division, Second Department, New York, 2007
FACTS: On October 16, 2003, Glenn Marek was riding his bicycle to work when two dogs ran into the road. According to Marek, one dog ran in front of his bicycle while the other grabbed at his left leg, causing Marek to flip over the bicycle’s handlebars. Marek sued defendants Burmester, the owner of the dogs, and his nephew who was watching the dogs, to recover damages for injuries he sustained in the accident. Burmester and the nephew move for summary judgment dismissing the complaint on the ground that there was no evidence they were aware of any vicious propensities that the dogs may have. The Supreme Court granted the motion for summary judgment. Marek appeals.
ISSUE: Whether the Supreme Court erred in granting Burmester and his nephew’s motion for summary judgment.
HOLDING: Yes, the Supreme Court did err in granting the motion for summary judgment. Genuine issues of material fact existed relating to whether Burmester and the nephew had constructive notice of the dogs' potential vicious propensities and proclivity to chase bicyclists on the roadway. The order is reversed and the motion for summary judgment dismissing the complaint is denied.
New York
Earl v. Piowaty
42 A.D.3d 865
Supreme Court, Appellate Division, Third Department, New York, 2007
FACTS: Plaintiff Theresa Earl’s son was bitten by defendant Piowaty’s dog. She brought a personal injury action against Piowaty and Rondout Valley Animals for Adoptions, Inc., the animal shelter from which Piowaty adopted the dog. Earl’s son claims that he was speaking gently to the dog and petting him when the dog suddenly attacked him, causing serious injury to his face. However, Piowaty’s sons assert that the dog attacked when Earl’s son startled the sleeping dog by shouting directly in the dog’s face after winning a video game. The Supreme Court denied Earl’s motion for partial summary judgment on the issue of Piowaty’s liability. Earl appeals.
ISSUE: Whether the Supreme Court was correct in denying Earl’s motion for partial summary judgment on the issue of liability.
HOLDING: Yes, the Supreme Court was correct in denying the motion for partial summary judgment. Piowaty raised a triable issue of fact regarding the dog’s vicious propensities and Piowaty’s lack of notice of those propensities.
New York
Galgano v. Town of NorthHempstead
41 A.D.3d 536
Supreme Court, Appellate Division, Second Department, New York, 2007
FACTS: Plaintiff Galgano brought an action to recover damages for personal injuries resulting from a dog bite. The Supreme Court granted defendant Town of North Hempstead’s motion for summary judgment dismissing the complaint. Galgano appeals.
ISSUE: Whether there is sufficient evidence to prove that defendant, the Town of North Hempstead, knew or should have known of any prior vicious propensity on the part of the dog.
HOLDING: No, there was not sufficient evidence to prove that the defendant knew or should have known of any prior vicious propensity of the dog. While the dog was under the dominion of the defendant, he did not act in a manner consistent with that of a dog of vicious propensity. In addition, the fact that the dog was brought to the animal shelter because another dog in the owner’s household did not get along with this dog does not indicate vicious propensities. Therefore, defendant is entitled to summary judgment dismissing the complaint.
New York
Malpezzi v. Ryan
28 A.D.3d 1036
Supreme Court, Appellate Division, Third Department, New York, 2006
FACTS: In July 2001, defendant Ryan awoke in the night to the sound of a dog crying. He went to his neighbor’s yard, where he discovered Oreo caught under the picnic table. Ryan freed Oreo and when Oreo continued to linger around his property, Ryan ultimately decided to keep Oreo. Over the course of the next two months, Ryan, his girlfriend, and their two children interacted with Oreo without incident. According to both Ryan and his girlfriend, at no point during this time period did Oreo bark, growl, bare his teeth, jump on or display any kind of aggression toward a person or an animal. On September 14, 2001, Ryan and his family took Oreo for a walk along a local bike path where they encountered six-year-old Casey Malpezzi and his brother. Oreo bit Malpezzi on the arm, as a result of which Malpezzi’s parent filed this suit to recover for injuries. Following joinder of the issue and discovery, Ryan moved for summary judgment dismissing the complaint. The trial court denied summary judgment, finding a question of fact as to whether Ryan was aware of Oreo’s allegedly vicious propensities. Ryan appeals.
ISSUE: Whether the trial court erred in denying Ryan’s motion for summary judgment dismissing the complaint.
HOLDING: Yes, the trial court did err in denying Ryan’s motion for summary judgment. Malpezzi came forward with insufficient proof to raise a question of fact as to Oreo’s vicious propensities by offering the following: that Oreo bit Malpezzi, the possibility that Oreo may have been chained while on Ryan’s property, and Oreo’s breed of pit bull. In addition, there is no other evidence even suggesting that Ryan knew or should have known of Ore’s allegedly vicious propensities. The trial court’s order denying Ryan summary judgment is reversed.
New York
Evans v. Craig
25 A.D.3d 582
Supreme Court, Appellate Division, Second Department, New York, 2006
FACTS: Plaintiff Lorraine Evans is an employee of the United States Postal Service, and was allegedly injured by defendant Craig’s dog while delivering mail at the house. According to Evans, the dog ran out of the house and jumped on her. Evans filed this suit to recover damages for her injuries, claiming Craig was negligent in failing to secure and control the dog. The Supreme Court denied Craig’s motion for summary judgment dismissing the complaint.
ISSUE: Do triable issues of fact remain regarding whether Craig should have been aware of the potential danger and whether he took proper precautions under the circumstances.
HOLDING: Yes, triable issues of fact do remain as to whether Craig should have been aware of a potential danger and whether he took proper precautions under the circumstances. Therefore, the Supreme Court was correct in denying Craig’s motion for summary judgment.
New York
Brooks ex rel. Brooks v. Parshall
25 A.D.3d 853
Supreme Court, Appellate Division, Third Department, New York, 2006
FACTS: Defendants Sheila and William Parshall own a German Shepherd dog named Caesar. Plaintiff Todd Brooks, then seven years old, and his father attended a gathering at the Parshall’s home. According to Todd, Caesar growled at him when he first arrived but then was friendly after that. Todd and his father further allege that Caesar kept growling and baring his teeth at one man. The Parshalls deny seeing Caesar bare his teeth or hearing him growl. The following morning, as the Brooks were leaving, Todd attempted to hug the dog from behind. Caesar then bit Todd on his face, causing injuries which led to this lawsuit. The Supreme Court denied the Parshall’s motion for summary judgment. The Parshalls appeal.
ISSUE: Whether there was sufficient evidence to establish that Caesar had vicious propensities or that the Parshalls had knowledge of any vicious propensities.
HOLDING: There was insufficient evidence to establish that Caesar had vicious propensities or that the Parshalls knew of these vicious propensities. The Parshalls were entitled to summary judgment dismissing the complaint.
New York
Cohen v. Kretzschmar
30 A.D.3d 555
Supreme Court, Appellate Division, Second Department, New York, 2006
FACTS: A dog owned by the Kretzschmars allegedly injured Adelaide Cohen. Cohen sued to recover damages for personal injuries. The Kretzschmars established their entitlement to summary judgment by demonstrating that their dog did not have a propensity to jump up on people and that they did not have any prior notice of such a propensity. The Supreme Court granted summary judgment in favor of the Kretzschmars, dismissing the complaint. Cohen appealed.
ISSUES: 1) Whether the Kretzschmars established that their dog did not have a propensity to jump up on people, and 2) whether the Kretzschmars were negligent in the manner in which they handled their dog at the time of the alleged incident.
HOLDINGS: 1) Yes, the Kretzschmars did establish that their dog did not have a propensity to jump up on people and that they did not have prior notice of any such propensity. 2) No, the Kretzschmars were not negligent in the manner in which they handled their dog at the time of the alleged incident involving Cohen. The trial court’s decision granting the Kretzschmars summary judgment is affirmed.
New York
Aversa v. Bartlett
11 A.D.3d 941
Supreme Court, Appellate Division, Fourth Department, New York, 2004
FACTS: Plaintiff Aversa brought a personal injury action against dog owner Bartlett, after Bartlett’s dog attacked Aversa. Aversa suffered lacerations, bruising and swelling of the face, as well as a tear of the left eyelid, temporary inability to open left eye, nasal fracture and blockage, temporary breathing difficulties, and sporadic and double vision. At trial the jury awarded Aversa $100,000 for past pain and suffering and $200,000 for future pain and suffering. Bartlett appeals.
ISSUE: Whether the jury’s award of $100,000 for past pain and suffering and $200,000 for future pain and suffering deviates materially from what would be reasonable compensation.
HOLDING: Yes and no. The jury’s award of $100,000 for past pain and suffering is warranted by evidence of Aversa’s condition between the time of the bite and trial, however the award of $200,000 for future pain and suffering deviates materially from what would be reasonable compensation.
New York
Russell v. Rivera
4 Misc.3d 37
Supreme Court, Appellate Term, First Department, New York, 2004
FACTS: Plaintiff Dorsey Russell sued defendant Ruben Rivera to recover for injuries allegedly sustained when he was bitten on the finger by Rivera’s dog. Russell paused in front of Rivera’s house, placing his hand on top of a three-foot high fence behind which Rivera’s dog was kept. At this point the dog jumped on top of the large cinder blocks inside the fenced in area and bit Russell’s finger. Rivera established that his dog was a 12-year-old purebred Husky, who had never before bitten or even growled at anyone. The Civil Court denied Russell’s motion for summary judgment and dismissed the complaint. Russell appeals.
ISSUE: Whether there is sufficient evidence to hold Rivera strictly liable or negligent for the behavior of his dog.
HOLDING: No, Rivera was not strictly liable nor was he negligent for failing to use a heightened duty of care in confining a dog who had never previously displayed any vicious or violent proclivities.
New York
Marshall v. Darmody-Latham
783 N.Y.S.2d 738
Supreme Court of New York, 2004
FACTS: Damody-Latham adopted her dog, Apollo, after he had been rescued from an abusive environment by the Central New York Society for the Prevention of Cruelty to Animals. Three years after the adoption, Apollo bit Marshall when Marshall was trying to break up a fight between Apollo and another dog, Emma. Marshall subsequently commenced this action seeking damages from Damody-Latham.
ISSUES: Whether Damody-Latham knew or should have known that Apollo had vicious propensities such as would preclude summary judgment, based on evidence that Apollo had been involved in fights before he was rescued, had scars, and had been bitten by another dog at an animal shelter.
HOLDINGS:
1) The owner of a domestic animal 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.
2) Damody-Latham established that she had no knowledge that the dog had vicious propensities.
3) In the absence of any evidence that Apollo was the aggressor in any previous dog fights, none of which occurred after defendant adopted Apollo three years before the incident that gave rise to this action, Marshall has failed to raise an issue of fact whether Damody-Latham knew or should have known that Apollo had vicious propensities.
New York
Bukhatetsky v. Vysotski
296 A.D.2d 367
Supreme Court of New York, 2002
FACTS: Bukhatetsky was bitten by a dog and brought a personal injury action against the dog’s owner, Vysotski, and its former owners, the Kaplinskys, who had failed to notify authorities of the change of ownership after selling the dog four months before the incident. The Supreme Court denied the Kaplinskys motion for summary judgment and they appealed.
ISSUES: Whether the court erred in denying the Kaplinskys’ motion for summary judgment.
HOLDINGS:
1) The Kaplinskys established their prima facie entitlement to judgment as a matter of law by tendering evidence proving that Vysotski had sole possessory interest in the dog, and dominion and control over it on the date of the accident.
2) The mere fact that the appellants did not notify the authorities of the change of ownership, under the circumstances of this case, is insufficient to raise a material issue of fact with respect to their alleged ownership of the dog on the day of the accident.
New York
Bemiss v. Acken
273 A.D.2d 332
Supreme Court of New York, Appellate Division, Second Department, New York, 2000
FACTS: Plaintiff’s dropped their infant Ashley at the house of Terry and Robert Williams where they operated an in-home daycare. The Williams’ rented their property from defendant Acken. The Williams’ dog bit Ashley while at daycare, and plaintiffs seek to recover damages from the landlord under a theory of strict liability.
ISSUES: Is Acken strictly liable for a dog bite that occurred on property he leased to the Williams?
HOLDING: No, Acken is not strictly liable because he had no knowledge of the dog’s vicious propensities. In order for a landlord to be held strictly liable for a dog bite, plaintiffs must prove that the landlord had actual knowledge that the dog was being kept on the leased premises and the dog had vicious propensities. The plaintiffs failed to establish that Acken knew of any dangerous propensities the dog may have possessed.
New York
Carter v. Metro North Associates
255 A.D.2d 251
Supreme Court, Appellate Division, First Department, New York, 1998
FACTS: In August 1995, the plaintiff, a tenant in the building owned by the defendants, was walking along a path leading to an exit gate of the apartment complex. She was attacked by a pit bull owned by another tenant. The tenant sued the landlords, claiming that they were liable for her injuries. The IAS court denied summary judgment for the defendants and instead granted summary judgment to the plaintiff on the issue of liability.
ISSUES: Did the IAS court err in denying summary judgment for the defendants and granting summary judgment to the plaintiff?
HOLDING: Yes, the IAS court erred in denying summary judgment for the defendants and granting summary judgment to the plaintiff. In order for a landlord to be held strictly liable for an injury inflicted by an animal, the plaintiff must establish 1) that the animal had vicious propensities and 2) that the landlord knew or should have known of the animal’s propensities. In this case, there was no evidence that the dog had ever attacked any individual, or previously displayed any vicious behavior. The IAS court erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole. According to New York case law, however, a court may only take judicial notice to matters of ‘common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.’ The Supreme Court found that the IAS court erred in taking such judicial notice because pit bulls’ alleged “vicious propensity” is not a well-established truth. The court found that on the subject of the propensities of pit bull terriers as a breed, there are alternative opinions that preclude judicial notice such as was taken by the IAS court. The Court found that because the plaintiff failed to submit sufficient evidence to support her claim that this individual dog had vicious propensities or that the defendants were or should have been aware of such propensities, the defendants’ motion for summary judgment should have been granted.
North Carolina
Holcomb v. Colonial Associates, L.L.C.
597 S.E.2d 710
Supreme Court of North Carolina, 2004