Opinion
10100053.1.
Decided January 31, 2011.
Facts of the Case.
On September 29, 2010 the defendants' dog, "Gomer", a coonhound mix, attacked the plaintiffs' little dog, "Pookie". Plaintiffs and defendants were neighbors residing in a side-by-side duplex. On the date in question, defendant, Samantha Perkins, was going out to tie up her dog in the back yard. While doing so, Gomer got away and attacked the plaintiffs, who were in the back yard of the duplex at that time. The plaintiffs were not injured and managed to get away from the dog. Gomer then ran around to the front of the duplex on the plaintiffs' side, where plaintiffs' roommate was sitting on the porch. Defendants' dog proceeded to chase that individual into the front door of the plaintiffs' residence. Once inside plaintiffs' residence, Gomer attacked their dog causing life threatening injuries to Pookie, that required surgery and significant follow up veterinary care. The bills generated by said attack and submitted to the court amounted to $1,167.95.
Plaintiffs sued the defendants in the Small Claims Part of Webster Justice Court. They sought reimbursement for veterinary bills incurred by them as a result of the injuries sustained by their dog. Plaintiff, Kimberly A. Wilcox, testified that she was not aware of any vicious propensities of Gomer. Nor had she ever seen the defendants' dog attack another animal. These facts were confirmed by the defendant, Samantha Perkins. The defendants adopted Gomer from
Lollypop Farm, which is operated by the Humane Society of Rochester, about a year before the attack on plaintiffs' dog. In addition, the defendants entered into evidence a letter from Lollypop Farm, which stated that "Based on paper work and conversations with staff during the time Gomer was at Lollypop Farm we did not observe any aggression toward other dogs." Ms. Perkins did testify that since she had a baby the behavior of the dog changed in that she had observed him bark and growl from time to time. She also testified that the dog was not very obedient.
Issue Presented
Are the defendants liable for damages caused by the attack of their dog on the plaintiffs' dog?
Legal Analysis Strict Liability. "New York recognizes a cause of action which imposes strict liability [no proof of negligence necessary] upon owners for injuries inflicted by their vicious dogs, the owners having knowledge thereof and viciousness being defined as prior bites and/or mischievous propensities. . . ."Nardi v. Gonzalez, 165 Misc 2d 336,339, 630 N.Y.S.2d 215,217 (1995).In Toolan v. Hertel, 201 AD2d 816, 607 N.Y.S.2d 198 (3rd Dept. 1994) the court granted the defendant's motion for summary judgment dismissing plaintiff's strict liability claim for personal injuries caused by defendant's English Mastiff, because plaintiff failed to establish that the dog had vicious propensities and that the owner was aware of those propensities. In Althoff v. Lefebvre, 240 AD2d 604, 658 N.Y.S.2d 695 (2nd Dept. 1997) defendant's motion for summary judgment dismissing plaintiff's strict liability claim for injuries sustained in a fall caused by defendant's dog was granted, when plaintiff failed to establish defendant's knowledge of any vicious propensities of said dog. A strict liability action based on a dog bite suffered by a plaintiff when she entered a fenced in yard was dismissed because the ". . . the plaintiff failed to raise any question of fact that Sampson [the offending dog] exhibited any special attribute, such as extreme size or strength, which would have required the owners to exercise a higher degree of care to prevent possible injuries." Luts v. Weeks, 268 AD2d 568, 704 N.Y.S.2d 89,90 (2nd Dept. 2000). The New York State Court of Appeals dealt with this issue in Collier v. Zambito, 1 NY3d 444, 775 N.Y.S.2d 205 (2004) .In that case the defendants owned a beagle-collie-rottweiler mix that bit a twelve year old boy, by the name of Matthew, who was visiting the defendants' son. The defendants had always put the dog behind a gate when they had company since the dog would bark. In any event, the boy was invited by the defendant to approach the dog, who was on a leash, to have her dog, Cecil, smell him. Despite the fact that Matthew had been in the home before, Cecil jumped up and bit the young man on the face. The action was brought by the boy's mother on the child's behalf against Cecil's owners for damages suffered as a result of the bite. "The parties testified at their examination before trial that, to their knowledge, Cecil had never previously threatened or bitten anyone." The trial court denied the summary judgement motion of both parties. As to the defendants' motion, the trial judge referred to the fact that the defendants confined Cecil in the kitchen behind a gate when company was present as implied knowledge of the dog's vicious propensities. The Appellate Division reversed the findings of the trial judge ". . . finding that plaintiff failed to raise an issue of fact as to whether the defendants were aware or should have been aware of their dog's alleged vicious propensities ( 299 AD2d 866, 750 N.Y.S.2d 249." The court further found no evidence that Cecil actually had vicious propensities of the type that resulted in Matthew's injury" The Court of Appeals affirmed the ruling of the Appellate Division. In do doing the court stated "But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether it had vicious propensities."
Ibid. at 446, 206
Ibid.
Ibid.
Ibid. at 446, 207.
Ibid. at 447, 207.
The Court of Appeals went on to indicate in the Collier case that it has been the law of this state for many years that ". . . the owner of a domestic animal who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. . . ." The court went on to define vicious propensities to mean ". . . the propensity to do any act that might endanger the safety of the persons and property of others in a given situation." The court indicated that one must look to any prior similar actions of a dog as evidence of vicious or dangerous behavior. However, a dog need not have previously bitten anyone to show vicious propensities. Evidence of a tendency to "growl", "snap or bare its teeth" or the fact that the owner found the need to confine or restrain the dog may also be relevant. Even the behavior of a domestic animal that is not necessarily vicious, but is dangerous and that fact is known by the owner may be actionable ". . . only when such proclivity results in the injury giving rise to the lawsuit." Thus, under the facts herein, the defendants would have no liability to the plaintiffs on a theory of strict liability.
Ibid. at 446, 207.
Ibid.
Ibid. at 447, 207.
Ibid.
Common Law Negligence. In the instant case the defendants failed to maintain control of their dog. As the testimony indicated, Samantha Perkins was attempting to tie out the dog in the back yard, when Gomer got loose and went after the plaintiffs, their roommate and ultimately plaintiffs' dog inside plaintiffs' residence. However, in Smith v. Farner, 229 AD2d 1017, 645 N.Y.S.2d 355,356 (4th Dept. 1996) the court stated
"There is no merit to the contention of the plaintiff that she may assert a comon-law negligence cause of action against defendant based upon his failure to secure the dog properly, without having to prove that the dog had vicious propensities of which defendant was aware. Liability is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner's keeping of the animal, despite his knowledge of of the animal's vicious propensities' Lynch v. Nacewicz, 126 A.D. 2d 708,709, 511 N.Y.S.2d 121."
Again, no liability would attach to the defendants for the actions of their dog, Gomer, under a theory of common law negligence.
Substantial Justice. The standard of proof in a small claims matter is set out in Uniform Justice Court Section 1804 in pertinent part as follows: "The court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law. . . ." Nevertheless, "It is tempered . . . by the instruction that the small claim [judge] is to do substantial justice' within the framework of the substantive law. This guidepost is set forth for the conduct of the hearing as well as for the ultimate test: the criterion for appellate review. What is apparently meant is that the substantive law can be flexed a bit as long as it is not broken off entirely." Siegel, New York Practice, Section 581. This case is particularly difficult from the standpoint of a conflict between what one would consider substantial justice and the clear status of the substantive law, particularly case law, governing these types of cases. Specifically the injuries sustained by the plaintiffs' dog were both life threatening and heart wrenching based on the pictures entered into evidence by the plaintiffs. Plus there was the added insult of the attack taking place within plaintiffs' residence. The fact of the matter is that in many instances the conflict between the concept of substantial justice and the substantive law is unresolvable. In such cases substantive law must govern.
See Siegel, New York Practice, Section 582.
Agriculture and Markets Law. At the time of the injuries sustained by plaintiffs' dog, i.e. September of 2010, the Dangerous Dogs Section of the Agriculture and Markets Law was numbered as Section 121. Subsection 10 of that statute stated in pertinent part, as follows: "The owner or lawful custodian of a dangerous dog shall . . . be strictly liable for medical costs resulting from injury caused by such dog to a person, companion animal [emphasis added], farm animal or domestic animal." This now begs the question as to whether the plaintiffs herein can be compensated for the veterinary bills they incurred as a result of the injuries sustained by their dog, Pookie, under that provision of the Agriculture and Markets Law.
Section 121 of the Agriculture and Markets Law was re-numbered as Section 123 as of January 1, 2011. Subsection 10 under the newly re-number section reads the same as follows: "The owner or lawful custodian of a dangerous dog shall, except in the circumstances enumerated in subdivisions four and eleven of this section, be strictly liable for medical costs resulting from injury caused by such dog to a person, companion animal, farm animal or domestic animal."
"The definition of a dangerous dog has been interpreted to require a finding of such condition by a court. See Town of Hempstead v. Lindsey, 25 Misc 3d 1235(A), 2009 WL 4337703 (Dist. Ct. Nassau City. 2009). However, 121.10, unlike the section which precedes it, does not require that a dog was previously found to be a dangerous dog' as a condition to holding the owner strictly liable for medical costs." Budway, v. McKee, 27 Misc 3d 316,320 893 N.Y.S.2d 766,769 (2010).
Under the previously numbered Agriculture and Markets Law Dangerous Dog statute.
In Budway v. McKee the court denied that portion of defendant's motion for summary judgment because the plaintiff "raised a statutory claim for medical costs and demonstrated the presence of issues of fact with respect to such claim." Conclusion.
Ibid. at 321, 770.
In this case the conflict, between the substantive law, as established by the case law defining the liability of a dog owner or custodian under theories of strict liability and common law negligence and the concept of substantial justice, is resolved by the dangerous dog provisions of the Agriculture and Markets Law, previously numbered as Section 121(10) and currently numbered as Section 123(10).As stated in Budway v. McKee, 27 Misc 3d 316,320, 893 N.Y.S.2d 766,769 (2010, Hon. Daniel R. Palmieri, J.),
". . . the omission of a predicate finding of dangerousness from the medical cost provisions leads to the conclusion that the Legislature intentionally created a cause of action for medical costs resulting from an injury caused by a dog to a person (and certain animals) and that liability for such costs may be established simply by showing an attack without justification, which is the definition of a dangerous dog'. . . . See Christensen v. Lundsten ( 21 Misc 3d 651, 863 N.Y.S.2d 886 (District Ct. Suffolk Cty. 2008)."
In the instant action the plaintiffs established that the injuries sustained by their dog, Pookie, were caused by the defendants' dog. Plaintiffs further established, that the veterinary bills generated by the attack were in the amount of $1,167.95. Wherefore, the court finds that the defendants are liable to the plaintiffs for $1,167.95, pursuant to Agriculture and Markets Law Section 121(10). Judgment shall enter in favor of the plaintiffs and against the defendants in that sum of $1,167.95 together with the filing fee of $15.00 for a total of $1,182.95. This constitutes the decision and order of the court.
Currently numbered as of January 1, 2011 as Agriculture and Markets Law Section 123(10).