New York Law Review

Tag: dog bite

  • Collier v. Zambito, 1 N.Y.3d 444 (2004): Establishing Knowledge of a Dog’s Vicious Propensities

    Collier v. Zambito, 1 N.Y.3d 444 (2004)

    To establish liability for harm caused by a domestic animal, the plaintiff must prove that the owner knew or should have known of the animal’s vicious propensities, which is not demonstrated merely by showing the animal was confined or barked at people.

    Summary

    Matthew Collier, a 12-year-old boy, was bitten in the face by Cecil, a mixed-breed dog owned by Charles and Mary Zambito. The dog was usually confined to the kitchen when guests were present because he barked. On the night of the incident, Mrs. Zambito invited Matthew to approach the leashed dog after he came out of the bathroom, and the dog lunged and bit him. Collier sued, alleging the Zambitos knew or should have known of Cecil’s vicious propensities. The New York Court of Appeals held that the plaintiff failed to raise a triable issue of fact as to whether the defendants knew or should have known of their dog’s alleged vicious propensities, reversing the Appellate Division dissent and dismissing the claim. The court emphasized the need to show more than confinement or barking to prove vicious propensities.

    Facts

    The Zambitos owned Cecil, a beagle-collie-rottweiler mix, and typically confined him to the kitchen with a gate when they were away or had visitors because he barked. On December 31, 1998, Matthew Collier, a guest of the Zambitos’ son, went downstairs to use the bathroom. Cecil began barking, so Mrs. Zambito leashed the dog. After Matthew came out of the bathroom, Mrs. Zambito invited him to approach Cecil, who she said knew him from prior visits. As Matthew approached, Cecil lunged and bit Matthew’s face. Cecil had never threatened or bitten anyone before, to the parties’ knowledge. He was considered a family pet.

    Procedural History

    The Supreme Court denied both the defendants’ motion for summary judgment dismissal and the plaintiff’s cross-motion for summary judgment on liability, finding a factual issue regarding the defendants’ knowledge of Cecil’s vicious propensities. The Appellate Division reversed, finding no issue of fact as to the defendants’ awareness of Cecil’s propensities. Two justices dissented. The New York Court of Appeals affirmed the Appellate Division’s reversal, dismissing the complaint.

    Issue(s)

    Whether the plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the defendants knew or should have known of their dog’s vicious propensities, such that they could be held liable for the dog’s actions.

    Holding

    No, because the evidence submitted by the plaintiff was insufficient to raise an issue of fact as to whether Cecil had vicious propensities that were known, or should have been known, to the defendants.

    Court’s Reasoning

    The Court of Appeals relied on the established principle that an owner of a domestic animal is liable for harm caused by the animal if the owner knew or should have known of the animal’s vicious propensities. Vicious propensities include any propensity to act in a way that might endanger others. Knowledge of vicious propensities can be proven by prior similar acts that the owner knew about, or evidence of growling, snapping, or baring teeth. The court distinguished this case, stating, “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.” Here, Cecil was a family pet, not a guard dog. He was confined to the kitchen only because he barked at guests, not because the owners feared he would harm them. The court noted the plaintiff himself was not afraid of the dog and testified that the dog was friendly. The fact that the owner invited Matthew to approach the dog showed that she did not expect the dog to attack. The court stated, “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities.” However, the behavior exhibited by Cecil did not rise to the level of apparent viciousness required to impute knowledge to the owners.

  • Zoltanski v. Eaton, 82 A.D.2d 573 (N.Y. App. Div. 1981): Landlord Liability for Tenant’s Vicious Dog Known Before Lease

    Zoltanski v. Eaton, 82 A.D.2d 573 (N.Y. App. Div. 1981)

    A landlord can be liable for injuries caused by a tenant’s dog if the landlord knew of the dog’s viciousness before leasing the property and failed to take reasonable measures to protect others.

    Summary

    This case addresses a landlord’s liability for injuries inflicted by a tenant’s dog when the landlord knew of the dog’s vicious propensities before leasing the property. The plaintiff was bitten by a German Shepherd owned by the tenant. The court held that the landlord, Mrs. Zoltanski, could be liable if she knew about the dog’s vicious nature before leasing the premises and did not take reasonable precautions to protect third parties. The court emphasized that landlords must exercise reasonable care not to expose others to unreasonable harm, especially when they create the risk.

    Facts

    Sophie Zoltanski inherited a property with two houses, which she rented out. Prior to leasing one of the houses to Carl Kenyon, she observed Kenyon’s German Shepherd dog tied up on the property. The dog was barking loudly, jumping, growling, and acting ferocious. Mrs. Zoltanski later leased the property to Kenyon on an oral basis. The plaintiff, a 14-year-old boy, went to Kenyon’s property to get the dog and was bitten on the mouth and arm.

    Procedural History

    The plaintiff sued the landlord, Sophie Zoltanski, for damages. The Supreme Court granted summary judgment for the husband, who had no interest in the property, but denied it for Sophie Zoltanski. The Appellate Division affirmed the denial of summary judgment for Mrs. Zoltanski and granted her leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a landlord can be held liable for injuries caused by a tenant’s dog if the landlord knew of the dog’s vicious propensities prior to leasing the premises and failed to take reasonable measures to protect third parties.

    Holding

    Yes, because a landlord who knows of a tenant’s vicious dog before leasing the premises has a duty to take reasonable precautions to protect third persons from foreseeable injuries, and the failure to do so may result in liability. The court stated: “Considerations of public policy…require that a landlord who, prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury has a duty to take such precautions as lie within the control of the landlord reasonably to protect such third persons from the injuries to be foreseen if no such precautions are taken.”

    Court’s Reasoning

    The court reasoned that while landlords generally are not liable for animals kept by tenants after the lease begins unless the landlord has control of the premises and knowledge of the animal’s viciousness, this case was different because the landlord allegedly knew of the dog’s viciousness before the lease. By leasing the property to the dog’s owner, the landlord may have affirmatively created the risk that injured the plaintiff. The court emphasized that landlords, like others, must exercise reasonable care not to expose third persons to an unreasonable risk of harm. The court balanced the need to provide housing for those who legitimately keep watchdogs with the need to protect third parties from harm. The court explicitly stated that the landlord would not be subject to the same strict liability as the tenant, who is the dog’s harborer. However, the landlord has a duty to take reasonable precautions, such as including provisions in the lease regarding confinement or control of the dog, at the inception of the lease when the landlord is aware the tenant will keep a guard dog. The court held that the specific precautions needed and whether the landlord’s failure to take precautions was the proximate cause of the injury are factual issues for trial.

  • Weiss v. Furlong, 36 N.Y.2d 180 (1975): Municipal Liability for Dangerous Conditions Requires Notice

    Weiss v. Furlong, 36 N.Y.2d 180 (1975)

    A municipality is not liable for injuries caused by a dangerous condition on its property unless it had prior actual or constructive notice of the condition and a reasonable opportunity to remedy it.

    Summary

    This case addresses the extent of a municipality’s duty to maintain safe conditions in its public spaces, specifically playgrounds. The plaintiff, a child, was injured by a dog in a playground owned by the New York City Housing Authority. The Court of Appeals reversed the Appellate Division’s affirmance of the trial court’s dismissal, holding that the Housing Authority could be liable if it had constructive notice of the dog’s dangerous propensities. The dissent argued that neither actual nor constructive notice was established, and that imposing liability without such notice would transform the municipality into an insurer. This case highlights the importance of establishing notice when seeking to hold a municipality liable for injuries sustained on its property.

    Facts

    The infant plaintiff was injured in a playground owned and maintained by the New York City Housing Authority. The injury was allegedly caused by a dog owned by an employee of the Housing Authority. There was no evidence presented that the Housing Authority had received prior complaints about the dog or that the dog had previously exhibited aggressive behavior in the playground. The dog’s owner lived in a nearby building also managed by the Housing Authority.

    Procedural History

    The trial court dismissed the complaint. The Appellate Division affirmed the dismissal, finding that the Housing Authority had no prior notice of the dangerous condition. The New York Court of Appeals reversed the Appellate Division’s order, remitting the case for a new trial.

    Issue(s)

    Whether the New York City Housing Authority had sufficient notice of the allegedly dangerous dog in the playground to be held liable for the infant plaintiff’s injuries.

    Holding

    Yes, because the Court of Appeals believed a jury could find the Housing Authority had constructive notice of the dog’s presence and potential danger. The Court reasoned that the dog’s owner was an employee of the Housing Authority, and his conduct (bringing the dog to the playground regularly) might have been observable enough to impute constructive knowledge to the Housing Authority.

    Court’s Reasoning

    The Court of Appeals emphasized the municipality’s duty to maintain its parks and playgrounds in a reasonably safe condition. The court stated that constructive notice can be found where a dangerous condition is visible and apparent, and exists for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. The Court distinguished this case from situations involving latent defects, stating that here, the presence of the dog was open and obvious. The court noted the dog owner was a Housing Authority employee, making it more likely his actions were known to the Authority. The court cited Caldwell v. Village of Island Park, stating a municipality cannot ignore foreseeable dangers when it knows its park is used for dangerous activities. The dissent argued that the mere presence of a dog in a public playground is not inherently dangerous or criminal. It emphasized that the dog was always accompanied by its owner, and there was no prior evidence of the dog biting anyone or causing physical injury. The dissent argued that imputing notice based on the sporadic presence of the dog and the owner’s employment would transform the Housing Authority into an insurer. The dissent quoted Cohen v City of New York, reiterating that notice and knowledge are required within a reasonable time to repair or guard against a danger. “When, as in the present case, the alleged negligence involves a failure to correct a dangerous situation, a municipality is not liable unless it received ‘notice and knowledge’ within a reasonable time in which ‘to repair or guard against’ the danger.”