Dogs are almost universally beloved. Most people cannot resist interacting with a dog when they pass them on the street. Yet, “man’s best friend” is not always so friendly. A frequently cited CDC statistic suggests that on average, a staggering 4.5 million dog bites occur in the United States each year. Far from trivial, dog bites can be traumatic and costly. Fortunately, New York’s dog bite laws allow victims to recover compensation by suing the owners of the dogs that bite them.
New York’s Dog Bite Laws
There are two main legal avenues to recovering compensation for dog bite injuries in New York. They are:
- “Dangerous Dogs” Law
- Common Law Tort
“Dangerous Dogs” Law
Under New York’s “dangerous dogs” law, NY Agri & Mkts L § 123(10), if you or an animal you own are attacked by a dog, its owner is responsible for the resulting medical costs if the offending dog is a “dangerous dog.”
§ 108(24) defines a “dangerous dog” as any dog, excluding police dogs, that
- Attacks without justification and causes physical injury or death, or
- Acts in a way that would lead a reasonable person to believe the dog presents a serious and unjustified danger of causing serious physical injury or death
There are two exceptions. One is if the attack was justified by any of the following:
- the threat, injury, or damage was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog or upon the property of the owner or custodian of the dog
- the injured, threatened, or killed person was tormenting, abusing, assaulting or physically threatening the dog or its offspring, or has in the past tormented, abused, assaulted or physically threatened the dog or its offspring
- the dog was responding to pain or injury, or was protecting itself, its owner, custodian, or a member of its household, its kennels or its offspring
- the injured, threatened or killed companion animal, farm animal or domestic animal was attacking or threatening to attack the dog or its offspring.
A second exception is “if the dog was coming to the aid or defense of a person during the commission or attempted commission” of any of the following crimes:
- Rape in the first degree
- Criminal sexual act in the first degree
- Kidnapping within the dwelling or upon the real property of the owner of the dog
A potential source of confusion worth clearing up is the many uses of the term “dangerous dogs.” In addition to allowing dog bite victims to sue owners for medical expenses, this law provides a way to report dogs that attack others to the court so that a judge may determine whether the dog is a “dangerous dog” that needs to be confined or euthanized. This process is separate from filing a lawsuit for medical expenses.
Crucially, the lawsuit option is not limited to attacks by dogs who have been reported under this other process. In Christensen v. Lundsten, the court clarified that the law does not require a previous finding that the offending dog is a “dangerous dog.” Instead, it only needs to be shown that the offending dog, based on the attack in question, meets the law’s definition of a “dangerous dog.”
Common Law Tort
A “common law tort” is a type of legal action the courts have created to allow private citizens to sue each other for wrongful acts they have committed. In this context, the common law tort option is a type of lawsuit the courts created to allow dog bite victims to sue dog owners for the “wrongful act” of being bitten.
In the case of Collier v. Zambito, the Court of Appeals of the State of New York outlined the common law tort cause of action for a dog bite or attack. The court explained the owner of a domestic animal is liable if they either know or should have known of their animal’s “vicious propensities.” They defined “vicious propensities” as the “propensity to do any act that might endanger the safety of the persons and property of others in a given situation.”
Put more simply, the Collier court said for an owner to be liable when their dog attacks another, the victim must show that the owner knew or should have known of their dog’s “vicious propensities,” meaning its natural tendency to do something to endanger others. They went on to explain how this standard might be satisfied.
The most obvious way is to show the owner had knowledge that their dog had attacked someone before. But this is not the only way to meet the standard. According to the court, the “one free bite rule,” which suggests an owner is liable only if their dog has bitten someone before, misrepresents the legal rule actually in effect. While a previous attack is enough to show a dog has “vicious propensities,” there are less severe circumstances that could prove a dog’s vicious nature. What these “less severe circumstances” are is developed over time as the court decides more and more cases. In another case, Medina v. Reed, the court restated some criteria established so far:
- Evidence of a prior attack
- The dog’s tendency to growl, snap, or bare its teeth
- The dog’s restraints, such as a muzzle
- Whether the animal is kept as a guard dog, and
- A proclivity to act in a way that puts others at risk of harm
The uncertainty of the “vicious propensities” standard makes dog bite lawsuits especially complicated, demanding the help of a professional. A knowledgeable attorney must analyze past cases to determine whether the precise circumstances of one’s case will qualify as showing the offending dog’s “vicious propensities.” This is no small task, especially since your case might be very different from anything the court has seen before. Proving that the owner knew or should have known of any vicious propensities also presents unique challenges. Only an experienced attorney will know what type of evidence is capable of proving the owner’s knowledge of their dog’s viciousness.
“Dangerous Dogs” Law vs. Common Law Tort: Which One is Right For Me?
The “dangerous dogs” law makes clear that both the “dangerous dogs” law and the common law tort cause of action are on the table. The question is, “Which one is right for you?” An attorney can use their legal expertise and intimate knowledge of your case to determine the best course of action. But if you’re curious, there are two key factors that will likely govern the decision.
1. What can you prove?
The common law tort option requires the victim to show that the dog has vicious propensities and that the owner knew or should have known of them. Without either of these elements, your lawsuit will fail. An important question, then, is whether you can satisfy both elements. If not, then recovery under the “dangerous dogs” law might make more sense. That standard is much easier to satisfy: you only have to show that the attacking dog qualified as a “dangerous dog” based on the incident in question.
2. What type of damages do you seek?
Another important consideration is what type of damages you seek. The “dangerous dogs” law limits recovery to medical expenses. This is one reason why it is the preferred option when an owner is seeking reimbursement for veterinary expenses after their animal is attacked by another dog. When just your animal is attacked, there usually aren’t any damages beyond medical expenses. The common law tort option, on the other hand, permits victims to recover various types of expenses, from medical bills to lost wages.
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Strict Liability: How New York’s State Law Thinks About Fault in Dog Bite Cases
Both the “dangerous dogs” law and the common law tort cause of action as defined in Collier mention the term “strict liability.” When the law says someone is “strictly liable,” it means the person is liable regardless of their intent or how careful they were. In other words, if your dog attacks someone, it won’t do to say, “I didn’t mean for it to happen” or “I did my best to prevent it.” The law imposes strict liability for the precise reason of making sure that when people choose to do certain things the law views as dangerous, these people are responsible for the resulting costs.
This helps to explain both legal avenues to recovery after a dog bite incident, though in slightly different ways. The logic behind the “dangerous dogs” law is that if you choose to own a dog, you accept that if that dog attacks someone without justification, you will be responsible for the resulting medical costs. With the common law tort cause of action, the reasoning is slightly different. Here the law says that if you own a dog that you know to be vicious, or should know to be vicious, you accept that you will be financially responsible for the resulting damages if that dog attacks someone. This is the law’s way of dealing with something it views as doubly dangerous: not just owning a dog but owning a vicious dog. The court in Medina v. Reed described the concept well when they said “[l]iability [under the common law tort cause of action] is premised upon the owner’s keeping of the animal despite his knowledge of the animal’s vicious propensities.”
Who Is Liable?
For the sake of simplicity, we have so far discussed liability for dog bites in this article as resting with the owner of the dog. And this makes sense in the typical case. But sometimes someone other than the “owner” of a dog takes responsibility for it and, therefore, might be liable.
An example is someone that “harbors” a dog. In Medina v. Reed, the court explained “ownership of a dog by a defendant is not a necessary condition to recovery, as keeping or harboring the dog is sufficient.” But what exactly is “harboring?” The court’s attempt at defining it in the case of Colombini v. Benitez demonstrates how uncertain this term can be. They first explained that “while the term ‘harboring’ lacks a singular definition, the Court has noted the term’s implicit connection to property.” So, harboring means owning the property where the dog stays? Not quite. They went on to say “[h]owever, simply owning the premises on which the dog resides is not enough to impose liability.” If owning the premises is not enough, what else is needed? Their answer was that “[h]arboring also involves some level of control or dominion.” Their trouble with this slippery concept is apparent.
Landlords are another example. Again, whether or not a given landlord is liable is hard to figure out. In Strunk v. Zoltanski, the court explained a couple of situations in which a landlord can be held liable in a dog bite case:
- When the landlord, knowing the tenant will keep a vicious dog on the premises, leases the premises to the tenant without taking reasonable measures to protect people who might be on the premises from the dog.
- When a tenant gets a dog after they have already leased the premises, and the landlord had knowledge of the vicious propensities of the dog and had control of the premises or other capability to remove or confine the animal.
In Colombini v. Benitez, the court took another stab at defining the precise rule. They pointed to three factors:
- The dog had “vicious propensities”
- The landlord knew or should have known of these propensities
- The landlord had sufficient control of the premises to allow the landlord to remove or confine the dog
The key takeaway is that someone other than the traditional “owner” of a dog can be liable in a dog bite case, but determining who can be held liable is incredibly tricky. An experienced attorney will need to consider your exact circumstances to determine whether someone other than the “owner” of the offending dog should be held liable for your damages.
But What About Negligence?
A brief aside, I suspect some of you, with either general legal knowledge or having researched dog bite lawsuits elsewhere, will wonder why we have not mentioned “negligence.” One might think, surely an owner whose dangerous or vicious dog attacks someone is careless in a way the law recognizes as negligence?
The question is a good one, but negligence is not a viable basis for a dog bite lawsuit in New York. In most states, the law permits negligence as a basis for recovering damages in domestic animal attack cases. In these states, when the owner does not have a reason to know their animal is dangerous, they are still liable if they intentionally cause the animal to do harm or are negligent in failing to prevent harm.
New York is one of only a few states to not endorse this rule. In Bard v. Jahnke, the court held “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.” The Bard court rejected a theory of negligence because in their view, it would dilute the Collier rule by making owners liable in many cases where their animals did not have vicious propensities.
The bottom line: negligence is not a viable theory for a dog bite lawsuit in New York.
What About Dog Parks?
Another question we are commonly asked is whether the dog bite rules change at all when the attack occurs at a dog park. And intuitively, dog parks seem to present a special case. After all, at dog parks, owners freely let their dogs off-leash, raising all sorts of interesting questions about who might be at fault in the event of an attack. However, dog parks have not as of yet been considered a special case by the courts. Their approach in these situations is no different from any other dog bite case: they will ask either whether the dog was “dangerous,” or if it had “vicious propensities” that the owner knew of or should have known of.
Dog Bite Lawsuits
If you wish to pursue a dog bite lawsuit, you should understand that lawsuits are exceedingly complicated and that if you want to win, you will need an attorney. In this section, we outline how a dog bite lawsuit works and touch upon some possible outcomes.
How does a lawsuit work?
The first formal step in a lawsuit is to file a “complaint,” a legal document filed with the court that states the following:
- Facts (that someone’s dog bit you or your animal)
- Cause of Action (that you’re entitled to relief either under the “dangerous dogs” law or common law tort)
- Relief sought (that you seeking “X” types of damages in “Y” amounts)
Once your attorney has prepared and filed these documents, your case will be open. Next, a copy of the documents will be delivered to the owner of the offending dog. At this point, the ball is in their court. They can fight the case, settle, or not respond whatsoever. The next steps and outcome of your lawsuit will depend on what your opponent decides to do.
What do you need to prove?
What you will need to prove to the court to prevail in your lawsuit will differ depending on the legal avenue you pursue:
If you take action under the “dangerous dogs” law, you must prove…
- The dog bit or attacked you or your animal,
- The dog was a “dangerous dog” within the meaning of the statute, and
- The dog bite or attack caused you medical expenses.
If you take action under the common law tort cause of action, you must prove…
- The dog bit or attacked you or your animal,
- The owner knew or should have known that their dog had “vicious propensities,”
- The dog bite or attack caused you damages.
What are the possible results?
Following are some of the possible outcomes in a dog bite lawsuit.
- Default Judgment: If the person you are suing does not file a response to your lawsuit in time, it is possible for you to win your lawsuit by default. This is known as a “default judgment.”
- Summary Judgment in Your Favor: If the court feels that based on yours and the other party’s initial filings that the facts and the law are so clear cut that there is nothing to be resolved at trial, the judge can rule that you win the lawsuit without the need for a trial. This is known as a “summary judgment.”
- Summary Judgment Against You: A summary judgment can also work against you. If the court feels that your initial filings fail to establish what the law requires for the type of lawsuit you are bringing, the court can dismiss your case without it going to trial.
- Trial and Win: Your case may go all the way to trial and result in you winning your lawsuit.
- Trial and Lose: You may also go to trial and lose your lawsuit.
- Settlement: The person you are suing might agree to pay you a sum of money to avoid having to go to trial.
Case Law Examples in Depth
Following is a discussion of three real-life dog bite cases. Notice how the court wrestles with the question of when a dog does and does not have “vicious propensities” in the first case versus the clearcut nature of the second case. Also consider how the “dangerous dogs” law comes into play in the third case.
“Vicious Propensities?”: Collier v. Zambito
One evening, the Zambitos hosted a number of young children at their home. Among these children was the Colliers’ 12-year-old son. The Zambitos had a beagle-collie-rottweiler, which they kept gated in the kitchen whenever company was over because the dog would otherwise bark at their guests; this evening was no exception. At some point, the Colliers’ son came downstairs to use the restroom. When he emerged from the Zambitos’ downstairs bathroom, Mrs. Zambito stood across the hall with the dog on a leash. Mrs. Zambito invited the Colliers’ son to come over and let the dog sniff him. He went over to her, at which point the dog lunged and bit his face.
The Colliers sued the Zambitos. Before the case could go to trial, the Zambitos’ attorney asked the court to enter a summary judgment dismissing the case before it could go to trial. They claimed the Colliers had failed to establish that the dog had vicious propensities that they knew of or should have known of. The lower court disagreed, pointing to the fact that the Zambitos gating their dog in the kitchen might be evidence of vicious propensities that they knew of. The Zambitos appealed this ruling. The appeals court agreed with the Zambitos and dismissed the case.
The appeals court reasoned that there was simply no evidence that the dog had vicious propensities that the Zambitos knew of or should have known of. Both parties had agreed that the dog had never before attacked anyone. And though evidence of something less than a previous attack could meet the vicious propensities standard, no such evidence was presented here. The fact that the dog was gated off was not enough. The dog was gated because it barks when visitors are present. Almost all dogs do this naturally, so it is not enough to prove the Zambitos knew their dog was vicious.
Repeat Offender: Medina v. Reed
When Mrs. Reed was physically incapable of feeding Spaz, a pit bull-dingo mixed breed dog that she cared for at her residence, she called her housekeeper, Mrs. Medina, for assistance. Medina agreed to help Reed feed Spaz. When Medina arrived at Reed’s home, Reed prepared a food bowl and a water bowl. Both were to be given to Spaz, who was located in the backyard. Medina took the bowls to the backyard. She first placed the food bowl in front of Spaz, who then began to eat his food. However, when Medina tried to put the water bowl down next to the food bowl, Spaz suddenly lunged at her, unprovoked, biting her knee, then her stomach.
Reed had failed to warn Medina that Spaz had a rather violent history. There were at least three previous incidents where Spaz had attacked and bitten someone without provocation. Predictably, Medina sued Reed. Early on in the lawsuit, Medina’s attorney asked the court to enter summary judgment in her favor, meaning that they asked the court to rule that Reed was liable without going to trial. The court agreed and Medina won the lawsuit without having to go to trial.
The court began by explaining the concept of summary judgment. They provided that in order for Medina’s motion to be successful, she would have to demonstrate both that she could establish all the legally required elements of her claim and that the facts were so indisputable that there was no need to go to trial. The court also pointed out that it would have to be true that Reed failed to raise any factual issue that would need to be resolved at trial. The court went on to examine Spaz’s documented history of attacks. They reasoned that these previous attacks established that Spaz had “vicious propensities.” And Reed’s knowledge of these “vicious propensities” were established by the evidence that she had knowledge of these previous attacks. Reed tried to argue that even if the court thinks Spaz was vicious, Medina assumed the risks of being attacked when she agreed to feed the dog. The court rejected this argument, observing that she couldn’t have “assumed the risks by agreeing” because Reed failed to warn her that Spaz was dangerous. On these bases, the court concluded there was nothing left to resolve at trial; summary judgment was granted in Medina’s favor, and Reed was held liable.
Dangerous Dogs Law: Wilcox v. Perkins
Mrs. Wilcox’s dog, Pookie, sustained life-threatening injuries when the neighbor’s coonhound mixed breed dog, Gomer, got away from home. After escaping his owner, Gomer had entered Wilcox’s residence, where he attacked Pookie, who later required surgery and significant veterinary care. Wilcox sued the neighbor, Mrs. Perkins, for medical costs in the amount of $1,167.95. She was able to recover this money under the “dangerous dogs” law.
In its ruling, the court first considered whether Wilcox had a claim under the common law tort cause of action. The court noted that both Wilcox and Perkins had agreed that they had never before seen Gomer attack another person or animal, or display “vicious propensities.” The place from which Gomer was adopted also submitted a letter confirming they had not observed the dog exhibit any aggression towards other dogs. The court concluded that Gomer did not have “vicious propensities,” so Wilcox did not have a common law tort claim. Next, the court noted that Wilcox did not have a valid claim on a theory of negligence. They acknowledged that New York does not recognize negligence as a valid theory in dog bite cases. The court finally turned their attention to the “dangerous dogs” law. They stated the rule as being that an owner of a dog is liable for medical costs resulting from an unjustified attack by their dog against a human or animal. They concluded that since Gomer had attacked Pookie without justification, Gomer’s owner, Perkins, was liable for the medical costs.
Do I Need An Attorney?
As this article makes clear, you will almost certainly need an attorney in a dog bite lawsuit. Here are five very good reasons to hire one:
- Lawsuits are complicated! There are hundreds of procedural rules, and the slightest mistake can derail your entire case.
- Dog bite laws are especially complicated! Deciding whether the facts of a case fit the “dangerous dogs” law or common law tort better is sometimes tricky even for attorneys.
- The “vicious propensities” standard is uncertain. The court’s notion of what circumstances qualify as vicious propensities develop with each case the court decides. So deciding whether you have a good claim might require substantial legal research and a keen understanding of how the courts operate.
- The “owner” is not always straightforward. The easy scenario is the dog having a traditional owner. But sometimes, it is unclear who is responsible. Is it the landlord? The roommate? The dog sitter? If you don’t believe me, check out Colombini v. Benitez. The dog bite victim sued five people, including the owners of the apartment where the attack took place.
- You’re not guaranteed a second bite at the apple. If you try to file your lawsuit yourself and don’t satisfy the legal standards, the court may enter summary judgment against you, dismissing your lawsuit. There is no guarantee that an attorney can save the day and get you a second shot at justice.
Frequently Asked Questions
If you end up winning your lawsuit, the court will award you an amount of damages to be paid by the other party. If the other party won’t pay willingly, your attorney can take action in court to force them to pay through various methods such as placing a lien on their bank account, garnishing their wages, or obtaining an order to seize and sell their property.
Certain breeds of dogs are certainly considered to be more vicious, most commonly pit bulls. However, in the eyes of the law in New York, a dog is not considered by the court to have “vicious propensities” simply because they are of a certain breed.
No. This is essentially a myth, at least in view of the law in New York. First, consider the “dangerous dogs” law. It allows a dog bite victim to recover medical costs from the owner of the offending dog even if that dog has never attacked anyone before. So, no “free bites” there. Next consider the common law tort cause of action. A victim must show the offending dog has “vicious propensities” that its owner knew of or should have known of. These “vicious propensities” can be established by the dog having bitten someone before, but the standard can also be met by other factors. So, a dog who has never before bitten someone can be considered to have “vicious propensities” based on other evidence, making its owner liable. In this case, then, the dog’s first bite would not be “free.”
New York municipalities have local leash laws requiring dog owners to keep their dogs on leashes in certain public areas. If an owner violates a leash law and their dog attacks someone, this will not generally be a key fact leading to the owner being held liable for the victim’s injuries. The reason is that a violation of a leash law leading to an attack fits best with a theory of negligence, which is to say the owner was careless when the law required them to be careful. But negligence is not a viable theory for dog bite lawsuits in New York. Nevertheless, an attorney can examine the precise facts of your case and determine how relevant a leash law violation might be to your lawsuit.
In New York, you have three years from the date of the attack to file a dog bite lawsuit.
According to the American Family Physician, a peer-reviewed medical journal, “[o]nly 15 to 20 percent of dog bite wounds become infected” and “[c]rush injuries, puncture wounds and hand wounds are more likely to become infected than scratches or tears.” It is generally recommended to seek medical care promptly for a dog bite or other related injuries.
Who Should I Contact?
Dog bites are unpleasant and can result in significant expenses. While the law does provide a way to hold dog owners responsible and recover the compensation you deserve, getting there is not easy. At Rosenblum Law, we have the knowledge and experience to expertly manage your dog bite case and ensure you achieve justice. Don’t hesitate to take the vital first steps on the path to just compensation. E-mail or call 888-815-3649 for a free consultation.