Dog bites and animal attacks in New York State are governed by long-established and rigidly enforced rules regarding liability for damages and responsibility. Upon proof of prior notice and vicious propensities, the owner is then absolutely liable. For all practical purposes, comparative fault and negligence do not apply. Arbegast v Board of Education, 65 NY2d 161. Two things must be proven by the victim, however, before the Courts will order any monetary compensation or the homeowners insurance will pay damages.
First, it must be established that the dog or other domestic animal had “vicious propensities”.
In basic terms, that means that the animal had on a prior occasion either bitten or attacked someone or, perhaps, another animal. There are many ways that vicious propensities can be demonstrated. Obviously, a prior bite or attack is the most direct. It might be that the animal aggressively strained at the leash and barked, bared its teeth or snapped at visitors. Lagoda v Dorr, 28 AD2d 208. It might be that the dog would, on prior occasions, charge the fence or even the front door. There must be proof of this behavior to maintain a lawsuit. It has been argued that the viciousness of the attack, in and of itself, may be evidence of vicious propensities. Often, veterinary records will contain entries that the animal was uncontrollable and provide specific instances of uncontrolled behavior.
Secondly, it must be established that the owner or one who harbors the animal either had prior notice should have known of these vicious propensities before the attack in question. Collier v Zambito, 1 NY3d 444. A landlord may be liable if a tenant harbors an animal with vicious propensities, he knows of the tendency and he has the ability to protect others from attack. Strunk v Zoltanski, 62 NY2d 572. However, if a dog had bitten a neighbor down the street but that incident was never reported to the owner or the authorities, then any lawsuit would fail because the owner did not have prior notice. The owner does not need to have prior notice of the exact type of attack at issue, only that the animal demonstrated previously vicious propensities.
This applies to all instances in New York of attacks by domestic animals. The Courts do not recognize that any particular type of animal or breed is inherently vicious. De Vaul v Carvigo, Inc., 138 AD2d 669 (German Shepherd); Bohm v Nystrum Constr. 208 AD2d 668 (Akita). That issue and the prior notice must be proven in each case. What constitutes a domestic animal is defined in the Agriculture and Markets Law §108. It includes “domesticated sheep, horse, cattle, goat, swine, fowl, duck….” One can argue that bulls, by definition, are aggressive and even vicious. The Courts consistently hold that they are “domestic animals and are governed by the prior notice of vicious propensities standard that has been long established. Bard v Jahnke, 6 NY3d 592; Agriculture and Markets Law §108(7).
Though it rarely arises, attacks by “wild animals” are held to a different standard. In that instance, if it can be shown that the species generally is regarded to have vicious propensities, the owner of the animal will be absolutely liable for injuries and damages even without any prior notice. Stevens v Hulse, 263 NY 421.The court is empowered to take Judicial Notice of the wild nature of a wild animal. Carelli v Sterling-Alaska Fur & Game Farms, Inc, 25 Misc2d 1032. Sometimes, additional proof is required. For example we all have the image of Bambi when thinking about deer. However, deer are clearly wild animals as opposed to domestic. What needs be established in a deer attack case is that the animal generally has vicious propensities. The attorney may need to retain a forestry expert to offer proof that, for example, male deer during rut are vicious, aggressive and certainly not domestic.
Categories: Dog Bites