Attorney Jim Reed recently posted a very informative blog about school-sports injuries at “NY Accident Lawyer Explains Why He Probably Won’t Take Your School Sports Injury Case.”  However, if you’re injured while participating in work-related athletic activity you may very well have a Workers’ Compensation case.

You might have a Workers’ Comp case if you’re injured when the employer required you to participate in the athletic activity, the employer compensated you for participating in the activity or the employer otherwise sponsors the activity.

I’m certainly not interested in discouraging employers from sponsoring athletic activity.  I am encouraging employers to keep safety in mind.  For example, some time ago the folks at the Ziff Law Firm got together for some firm sponsored paintball.  Anyone who knows anything about paintball will tell you that you can, and often will, get injured playing paintball.  Beyond that, given the competitive nature of folks at this firm, permanent disabilities were likely.  I encouraged Jim Reed, the firm’s managing partner, to make sure good safety equipment was available and used.  I’m happy to report that no employees of the Ziff Law Firm were seriously physically injured :  )

If you’re injured while participating in work-related athletic activity, protect yourself and talk to an attorney.

Thanks for reading,
Eric

____________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
Twitter:  http://twitter.com/AttorneyEric
Admitted to practice in New York and North Carolina

As an experienced injury lawyer, you often demonstrate how smart you are by the cases you DO NOT take – as much so as by those cases that you DO take.

While I certainly don’t mind a challenging case (and I have taken many over the years!), there are certain types of cases where the law is so stacked against you that you just have to know when to say NO.

Sad to say, school sports injury cases are an example of the type of case that is virtually impossible to win.

Why?

Well, the law is stacked against you in many respects.  First, there is a defense known as the “assumption of the risk doctrine.” Basically, this doctrine contends that people who are voluntarily engaging in a sport, assume the risk of the types of injuries that are inherent in that sport, and therefore they cannot recover for those injuries.

For example, if you are a pitcher on a baseball team, you assume the risk that a batter might hit a ball that hits you in the mouth. Likewise, if you are a baseball spectator, you assume the risk that a foul ball might hit you. On both of these scenarios, there are tons of NY cases that have been dismissed by the court because of the assumption of risk doctrine.

Two great blog posts, “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 1″ and “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 2 (Baseball)”, by NYC attorney John Hochfelder explain the assumption of the risk doctrine as it applies to many sports:  baseball, floor hockey, wrestling and soccer.

With all of that said, there ARE some types of sports injuries cases that MAY be a possible case despite the assumption of the risk doctrine.

These cases usually involve an injury that is NOT inherent in the nature of the sport or a hazard of a type that is generally not assumed in that particular sport. For instance, if there’s a metal spike sticking up out of the ground in the base path to second base and a school knew about that hazard and failed to take any steps to remedy that condition, that might give rise to liability against the school.

The bottom line is that it is VERY difficult to decide if you have a good case or not and therefore it is usually best that you consult with an experienced injury lawyer to determine if you have a case or not.

If you want to e-mail me the details of your case at jreed@zifflaw.com, I am happy to let you know what I think.

Thanks for reading,

Jim
_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

Got a terrific Board Panel decision today that will make my client happy and an insurance company and its lawyers unhappy.  A unanimous Board Panel penalized the insurance company $500 for filing a frivolous appeal.  That $500 is paid to my client.

There are a couple of things about this Board Panel decision that make it particularly sweet.  First, the decision that the insurance company frivolously appealed was a decision that awarded my client a penalty of nearly $4,400.  I sought this first penalty for late payment of his lost wage benefit.   So the $500  penalty for frivilous appeal was on top of the nearly $4,400  penalty for late payment of lost wages.

The other thing that makes this Board Panel decision special  is that this is the first time I’ve gotten a penalty against a carrier for filing a frivolous appeal.  Insurance companies delay and deny and they endlessly appeal.  I routinely seek and obtain penalties when the insurance company delays in paying my clients’ lost wage benefits and I routinely seek penalties for frivolous appeal.  I’ve been trying to get insurance companies penalized for frivolous appeals since I started practicing Workers’ Compensation and I was beginning to wonder if the Board would find anything frivolous.  Well . . . I’m happy to say that the Board will assess a penalty for filing a frivolous appeal.  Insurance companies beware.
Thanks for reading,
Eric

____________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
Twitter: http://twitter.com/AttorneyEric
Admitted to practice in New York and North Carolina

Our hearts go out to the family of local builder, John Roy from Horseheads, NY, who died after falling from a scaffold while building a house in Lansing, NY.  John had an excellent local reputation and I fondly remember time spent talking with him years ago when I was building my own home.  We send our thoughts and prayers to his family.

The facts of John’s fall are not very clear at this time.  The Corning Leader and WETM report:  “62-year old John Roy of Horseheads died after falling 30 feet from scaffolding while building a home in Lansing.  Roy was working on the roof of the house at the time.”

John’s tragic death caused me to reflect on the purpose behind a very important New York law.

Under NY law, construction workers are protected by what is referred to as the Scaffold Law (copied below). This law imposes liability on both the owners and general contractor whenever a worker is injured or killed due to an “elevation related risk.” Most commonly, cases under the Scaffold Law involve falls from a ladder or scaffold but they can involve other types of falls where the worker was exposed to injury due to working at a height.

The public policy behind this law is to encourage greater workplace safety for NY workers and accordingly it is a law that serves a very important function.  Because of this law, over the years, construction safety practices have dramatically improved. Heck, when I was a teenager carrying shingles for a local roofer, I never had the protection of a safety line but now such safety equipment is routinely seen on work sites.

Despite the fact that I am a lawyer who makes my living representing injured workers and their families, I am a strong supporter of any law that seeks to protect public safety.  My feeling is that unfortunately there will always be way too many injured people, so anything that can help protect more people is a great thing.

Here is an excerpt from the NY Scaffold Law:

New York Labor Law 240. Scaffolding and other devices for use of employees

1. All contractors and owners and their agents, except owners of one and two- family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Thanks for reading and stay safe,

Jim
_________________________________
James B. Reed

NY Scaffold Accident Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

Here is a copy of a story The Leader ran about John’s accident:

H’heads contractor dies after fall

(By Derrick Ek; Corning Leader; Wednesday Jan. 27, 2010, 04:33 PM EST)

Horseheads, N.Y. – A Horseheads man killed in a construction accident Tuesday was a longtime member of the community and a respected businessman, according to Horseheads Mayor Don Zeigler.

John D. Roy, 62, the owner of Roy Builders Inc., died after falling 30 feet from scaffolding at a home his company was building in an upscale neighborhood in Lansing, north of Ithaca, said Capt. Derek Osborne of the Tompkins County Sheriff’s Office.

Roy was climbing out of a window near the roof of the home onto the scaffolding when he fell, Osborne said. The scaffolding may have been unstable, Osborne added.

Roy was rushed by ambulance to Cayuga Medical Center, where he succumbed to his injuries, Osborne said.

Zeigler called Roy a good man and an excellent contractor who had built many homes and larger projects over the years, contributing to the area’s growth. Roy had recently submitted plans to village officials for a 30-unit senior housing complex near Hanover Square in Horseheads.

“He will be greatly missed,” Zeigler said.

Roy, who lived on Johnson Road in the town of Horseheads, leaves behind a wife and two children, said Jim Lynch, owner of Lynch’s Funeral Home in Horseheads, which is handling Roy’s funeral arrangements.

Lynch had known Roy since high school, he said. Roy was a good friend and a “master craftsman” who truly cared about his customers, Lynch said.

Calling hours are 5-8 p.m. Friday at Lynch Funeral Home, 318 W. Broad St., Horseheads. Funeral services will be held at 11 a.m. Saturday at Trinity Episcopal Church, located at the corner of Main and Church streets in Elmira.

There was an inaccurate statement in my blog post yesterday “Good News for NY Workers’ Compensation Claimants and Physicians.” In my rush to get that information out, I didn’t read the Board’s release as closely as I should have and I apologize for that. I got an email this afternoon from Joseph Cavalcante, Assistant Director of Public Information for the NYS Workers’ Compensation Board, informing me about my error. I thank Mr. Cavalcante for reading and letting me know about the inaccuracy.　

My statement should be corrected to read “as a measure to deal with that shortage, Mr. Beloten temporarily rescinded the mandate that AUTHORIZED providers IN THE PROVIDER TEMPORARY SHORTAGE AREA file a C-4 form in order to be paid for seeing claimants. With regard to the rest of New York, authorized providers may file the new or older versions of the C-4. Doctors outside provider temporary shortage area are not authorized to submit the CMS-1500 as a result of this subject number.”

In short, only providers in the temporary shortage area are relieved of having to file C-4 forms. However, the good news for any provider statewide is that they have the option of filing the older and easier C-4 form and still have their bills enforced by the Workers’ Compensation Board.

Being in a rush is a pitfall of having a busy practice area such as Workers’ Compensation, but I’m not going to make any excuses and I do apologize for any inconvenience this may have caused.

As always thanks for reading,
Eric

______________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

It’s not news to most New York Workers’ Compensation claimants and certainly not news to physicians and other health care providers that the Workers’ Compensation Board has been imposing increasingly rigorous paperwork requirements on providers without a commensurate increase in the amount providers can charge and the fee schedule was already set at a rate where many providers considered seeing Workers’ Comp claimants as a money-losing proposition.  

This was something that could only last so long.  This afternoon Robert E. Beloten, the Chair of the NY Workers’ Compensation Board, announced in Subject Number 046-398 that there is a provider shortage in the Rochester Area or more specifically in Monroe, Livingston, Steuben, Allegheny, Wyoming and Ontario counties.  As a measure to deal with that shortage, Mr. Beloten temporarily rescinded statewide the mandate that providers file a C-4 form in order to be paid for seeing claimants.  Providers’ bills will be enforced if they are submitted on universal claim forms (CMS-1500 or HCFA-1500) with sufficiently detailed office or narrative notes.

Hopefully this reduction in mandatory paperwork will stem the tide of providers turning away Comp claimants.   Let’s also hope that this temporary measure is made permanent.

I would only caution claimants who are temporarily disabled and who have lost time from work that if your doctor is no longer submitting the C-4 form, it’s a really great idea to remind him or her to document your degree of disability in the office or narrative note.  That little bit of advice will go a long way to making sure you get paid for your lost time.

Thanks for reading,
Eric

___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

Becoming a victim of a dog attack can be a devastating experience – both physically and emotionally. The physical wounds can range from cuts, to broken bones to disfiguring or even life-threatening injuries.

The emotional after-effects can be even more severe.  Dog attacks may affect the life of the victim in many ways:

Attacks may cause the victim to miss work and may result in a complete change in the victim’s life due to the injuries.

Many victims must deal with concerns such as stress or depression due to physical and financial limitations as a result of the attack.

Victims may also have to deal with the psychological symptoms due to experiencing a traumatic situation that may range from fear to flashbacks or anywhere in between.

Finally, victims may be terrified to deal with dogs and may be robbed of the wonderful experience of owning a pet.

Who is considered a victim of a dog attack? Those who are attacked by a dog are the obvious victims.  However, some folks find it surprising that those injured fleeing a potential attack also have legal options.

What Should I Do if I Have Been Attacked?

If you have become a victim of a dog attack, there are some steps that you should take. 

• First, seek medical attention. Whether you call 911 or go to the hospital on your own, DO NOT WAIT.
• Second, call the police or animal control as soon as possible to let them know that you were attacked. It is especially important to call the police or animal control quickly when the dog is loose or you do not know who it belongs to; a prompt call may allow them to find the dog.  Unfortunately, without the dog or knowledge of who owns dog, treatment may be more difficult for you, others may be in danger of similar injury and future legal proceedings may be impossible.
• Third, when speaking with police, animal control and medical providers, ask for documentation. If no documentation is available at the time, ask for report numbers or names of the individual you are talking to. Fourth, document your injuries, medical visits and experiences through pictures and notes.   This will help you remember what you’ve gone through as a result of this injury and may be of help in future legal proceedings.
• Finally, do not hesitate to contact an attorney that specializes in this type of case. Most clients feel that having someone going through the process with them is immensely helpful.  Ziff Law can help; we have years of experience handling this type of case.

What Happens in the Legal System?

In New York, there are a few different avenues to deal with dog attacks that provide different outcomes.  First, there is a dangerous dog proceeding.  In addition, there is a civil case against the owner of the dog.
What happens in each? Below, I will explain both types of proceedings briefly including what the proceeding is, what it is used for and how it may affect you, the owner and the dog. For further questions, help with the process, or to talk about your case, please feel free to call the Ziff Law Firm for expert advice.

Dangerous Dog Proceeding

A dangerous dog proceeding is a proceeding under Section 121 of Agriculture and Markets Law.  See the blog post ” ‘Dangerous Dog’ Law in New York State” for a more detailed description.  However, basically, a dangerous dog proceeding is a proceeding to impose penalties on the owner for having a dangerous dog which allows society to place controls on the dog.

As a victim of a dog attack, your involvement in this process will be contacting animal control and asking for a dangerous dog proceeding if animal control does not already suggest it. The proceeding is usually held in a local court and you may have to testify at the proceeding to help prove that it is “more likely than not that the dog attacked or threatened to attack.”  If the court finds that the dog was dangerous, the court will impose penalties against the owner and dog.

How does this proceeding affect the owner, the dog and you? Typically, the owner will only be fined unless the dog has attacked in the past; if the dog has attacked in the past it is possible that the owner may go to jail for up to 1 year.

Will the dog be euthanized or “put down”? Although many believe that this happens frequently, in reality, the opposite is true. Euthanizing a dog is a last resort and typically the court does not decide to do that unless the dog’s attack causes death or serious injury to a person or other animal or the dog has attacked in the past.  Rather, if the court finds that the dog is dangerous, they will likely impose other restrictions on the owner and dog to keep society safe from the animal.  For example, the court may require the pet be trained, require leashing or muzzling when in public and/or request confinement, among other things.

As a victim of a dog attack, a dangerous dog proceeding may help you by covering some of the costs of your injuries.  However, the costs are the only things that are covered.  Therefore, to reach additional expenses including emotional injuries or costs due to loss of work, a civil case against the owner is necessary.

A Civil Case: Liability Against the Pet’s Owner

As discussed above, bringing a civil case against a dog owner is different than a dangerous dog proceeding.  A civil case focuses on whether the owner is at fault, i.e., liable, and should pay for the victim’s expenses; therefore, a civil case is more about the victim’s experience than a dangerous dog proceeding.

For an owner to be held responsible for their dog’s attack in a civil case, it must be proved that the dog had “vicious propensities.” This concept is fairly complex; for more details see my “Vicious Propensities” posting.

However, in short, we can think of vicious propensities as something in the past that should have tipped off the owner that the dog might have a tendency to attack.  In a civil case, a jury decides whether the dog’s past actions were enough to “tip off” the owner by considering whether a reasonable person would have thought that the dog might attack. (For more details about what past juries have considered enough to hold owners responsible, you should also check see my “Vicious Propensities” posting on this blog.)

Unlike a dangerous dog proceeding, a civil case does not fine an owner or place controls on the dog; in fact, a civil case does not have any effect on the dog responsible for the attack.  Rather, a civil case compensates the victim for the losses associated with the attack if a jury believes the owner should have known the vicious propensity of his or her pet.

As a victim of a dog attack, a civil case may be helpful because it can allow you to recover additional costs related to the incident that would not be permitted in a dangerous dog proceeding.

In Summary

The dangerous dog proceeding and the civil case have different effects on the parties involved.  There are a few main differences:

1. A dangerous dog proceeding may impose for some restrictions on the attacking dog, e.g., requiring a leash, muzzle or training and, in extreme cases, euthanasia; a civil case cannot impose restrictions on the attacking pet.
2. A civil case allows for more compensation for a dog attack; a dangerous dog proceeding allows only costs to be covered.

Surprisingly, there is also some overlap between dangerous dog proceedings and civil cases. A finding of a dog as dangerous can be helpful in establishing vicious propensities of the dog in a civil case.

Can I proceed with both? It is possible to proceed with both. In fact, many people often find it satisfying to proceed with both because they are able to be involved in protecting others from a similar experience by helping to impose controls on the attacking pet as well as making sure they, as a victim, are fully compensated for their injuries and losses.

This article has been written to give you a very basic idea of what to do if you have been a victim of a dog attack.  Being such can be a very traumatic and difficult experience. Please do not hesitate to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim

_________________________________
James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529

mailto:jreed@zifflaw.com www.zifflaw.com

Since Dec. 18, 2009, there is a new law effective in New York state: Leandra’s Law.

As a lawyer who has handled way too many tragic drunk-driving cases over the years, I applaud the New York State Legislature for enacting one of the toughest anti-drunk driving laws in the United States.

This law was inspired by a tragic drunk-driving fatality. According to news coverage of the accident, 11-year-old Leandra Rosado of Manhattan was killed on the way to a sleepover party. The accident happened in October on the Henry Hudson Parkway in Manhattan. Leandra and six other children were passengers in a vehicle that crashed. It was driven by the mother of one of Leandra’s friends. Unfortunately, this mother was driving while intoxicated. She ended up flipping her vehicle and killing Leandra in a horrible collision.

Leandra’s Law makes it a felony for anyone to drive drunk with a child under the age of 16 years old in the car. This new law automatically elevates what was a misdemeanor DWI to an E level felony if there is a child in the car.

Under this law, regardless of whether there is an accident or not, a drunk-driving adult can be sentenced to up to 4 years in state prison.  In the event there is a crash that injures the child passenger, the drunk driver can be sentenced to up to 15 years in state prison. If the child is killed in a crash, the drunk driver can receive a prison sentence of up to 25 years.

For all those who might argue that these penalties are too tough, I can tell you that if you have ever sat with the family of a child who was killed as a result of a drunk driver these new penalties aren’t nearly tough enough.

I am a weekly commentator on WETM TV’s Law Talk segment, and on Dec. 30 I was asked to discuss Leandra’s Law.

The producers at WETM TV field questions for my Law Talk segment. It airs each Wednesday at noon. If you have a question, a problem, or you would like to hear my thoughts on legal developments, please e-mail lawtalk@wetmtv.com.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866  Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com  www.zifflaw.com

E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Most people take it as a given that doctors are accountable for accurate, competent care of EVERY person whom they see in a professional capacity. It’s difficult to believe, but until just recently, there was a big exception to that standard.

It was VERY difficult to successfully sue doctors who conducted medical exams for the defense in no-fault, worker’s compensation and personal injury cases. Typically retained by insurance companies or patients’ employers, these physicians were protected from lawsuits because they did not have a “duty of care” to the patients they saw. This duty wasn’t established because these doctors have a fleeting interaction with patients – seeing them once to collect information for the defense.

That has all changed, however, due to a recent decision by the New York Appellate Court – a decision I found out about via attorney Eric Turkewitz’s New York Personal Injury Law Blog. In the post, “NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians,” Eric explains this important change – a set of court-established criteria that make these “Doctors for the Defense” accountable for any bad advice or poor care they give the patients they see.

As Eric  explains it, the New York’s Appellate Division First Department said that these doctors, can be sued if certain conditions exist. A court panel  unanimously set these rules, based on the case Badalto v. Rosenberg:

“In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

The three conditions set forth by the court are:

1. that the advice was incorrect,

2. that it was foreseeable that the plaintiff would rely on the advice, and

3. that the plaintiff detrimentally relied on the advice.

As an experienced personal injury attorney, Eric not only does a great job of explaining the qualifications demanded to make a case – but the consequences for personal injury law in general. This ruling gives a new protection to plaintiffs – and undermines the practice of quick, shallow medical exams for the defense.

To quote from Eric’s New York Personal Injury Blog posting on the subject:

“All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn’t actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn’t rely on it, why should a judge or jury?”

Accountability. Standards. Informed opinions. Should anything less be expected of doctors – for any exam?

Thanks again to Eric Turkewitz for blogging about this and other important developments in personal injury law.

Sincerely,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com
E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Sad to say, but over the years I have handled way too many cases on behalf of people who have been badly injured when mauled in a dog attack or dog bite case.

I am a dog lover myself (and a former Board member of our local SPCA), but the fact remains: not all dogs are safe or fit to be around people.

In this post, I want to explain the basics of dog bite and dog attack law in New York. Of course, because I’m just covering the basics here, I welcome your questions about dog bite law in NY. You can post a comment below or e-mail me directly at jreed@zifflaw.com.

NY’s Dog Laws

New York State Agriculture and Markets Law Section 121 imposes penalties and controls on the owners of dogs who have attacked or threatened to attack.

Penalties for Owners

By statute, the penalties on the owner of a pet who has attacked can range from a fine to the possibility of one year in jail.

The penalty depends on what happened during an attack and whether the pet had ever been declared “dangerous” before. For example, if a dog attacked a person or caused physical injury or serious physical injury to a guide dog, the owner may be fined. However, if the attacking dog was declared dangerous in the past and attacked again, the owner may be charged with a misdemeanor and face up to one year in jail.

Penalties/Controls on the Pet: A Dangerous Dog

If a dog attacks or threatens to attack people or other pets, there can be a hearing in court on whether the dog is a “dangerous dog.” Finding a dog “dangerous” allows the court to force the owners to take action to attempt to make sure the dog interacts safely with others.

The court can request a variety of actions for the pet including:

• Requesting that the dog to be leashed or muzzled at all times in a public area,
• requesting the owners to confine the pet (by fencing it, etc.) for a specific amount of time,
• having the dog trained,
• maintaining an insurance policy on the dog in case of future attack, and,
• in very serious cases, euthanasia (putting the dog down) or permanent confinement.

Euthanasia or permanent confinement can not be mandated unless the dog caused serious physical injury or death while attacking a person, had attacked a person in the past, OR caused serious physical injury to another animal after being declared dangerous for the same behavior in the past.

What Can I Do if I Believe that a Dog is Dangerous?

First, if you have been attacked or witnessed a dog attack or threatened attack on a person or another animal, you should to make a complaint to an animal control officer as soon as possible.

(If you live in our area of Upstate New York, the link to the Horseheads and Elmira Animal Control Officers are below. If you are out of these areas, contact the police or call the animal control officers in your area.)

After an animal control officer receives a report of a witnessed or threatened attack, he or she will likely start a Dangerous Dog Proceeding with the court system. If the court feels that it is possible that the dog is a danger then the dog will be seized for the safety of the public until a hearing on the matter. Usually a hearing occurs within five days.

To find a dog a “dangerous dog” in a hearing, the animal control officer or person who brought the proceeding must prove that the dog is dangerous by showing that it is “more likely than not that the dog attacked or threatened to attack.” This is called the “burden of proof” and the burden is on the party bringing the dangerous dog complaint to prove that the dog did attack or threatened to attack. To satisfy this burden of proof you must bring witnesses that have first-hand knowledge (eyewitnesses) of the attack, or other proof of the attack (for example, pictures or videos).

The court will consider all the facts of the incident including if the dog was justified in its behavior. To make sure the dog’s dangerous tendencies can be proven, you may have to testify about what you observed.

If the court finds a dog to be dangerous, they will decide between the various penalties discussed above ranging from training to muzzling in public. Generally, euthanasia is not a penalty on the first complaint unless the situation is very serious, as discussed above.

What Do “Dangerous Dogs” and Statutory Penalties Have to Do with Dog Attack Liability?

I recently wrote about an important related topic – DOG ATTACK LIABILITY – in the post “When Dogs Attack: “Vicious Propensities” and Owner Liability Under New York State Law“ here on the NY Injury Law Blog. Under New York state law, the penalties against the owners and the finding of a dangerous dog are separate from the liability I discussed in the post. This means that – if you were attacked by a dog, your case may proceed in both ways.

Why? Because the owner’s liability and the dog’s “dangerous” designation deal with different things. For example, dog attack liability does not have any control over the actions the owner may have to take with the pet and cannot require fines; the dangerous dog sections usually do not compensate a dog attack victim for anything besides his or her expenses as a result of the attack.

However, although is generally separate, sometimes a “Dangerous Dog” finding can be useful in a civil trial by helping to prove vicious propensities.

Last Thoughts and Sources of Help

Please call your local animal control or police if you have been attacked or witnessed an attack by a dog. Also, if you are concerned about a dog’s aggressive behavior, even if they have not attacked or threatened to attack, PLEASE give the authorities a call. It may save you or someone else from a terrifying, painful or even deadly experience.

Who to Call: Upstate NY Animal Control Officers

The area code for the following phone numbers is 607 unless noted.

CHEMUNG COUNTY

The Chemung County Humane Society & SPCA has animal control contracts with nine of the municipalities in the county. Their website is www.chemungspca.org.

Caton, N.Y. Dog Control Officer – David Scouten, (607) 524-8411

Elmira, N.Y. Dog Control: www.cityofelmira.net/shelter/animal_control.html

Elmira City Animal Control Officer, 737-5807

Horseheads, N.Y. Dog Control: www.horseheads.org/index.php?n=Govt.Town#toc2

STEUBEN COUNTY

Addison: Robert Revis, 359-2034

Avoca/Howard: Betty Walden, 776-2453

Bath: Carl and Ruth Tuttle, 583-2229

Bradford: Edward Machuga, 583-2430

Cameron: Darrell Hoad, 776-7070

Campbell: Harold Austin, 527-8183

Canisteo: Gary Hadsell, 698-4350

Caton: David Scouten Sr., 524-8411

Cohocton/Wayland: Deb Breese, (716) 384-5499

Corning City: Linda Holmes, day 936-8422; night 527-8763

Corning Town: Jay Josephson, 524-6603

Dansville: Mary Lackey, 728-2999

Erwin: Jay Josephson, 524-6603

Freemont: John DuPont, 324-0002

Greenwood: John and Annette Jacobs, 478-5314

Hartsville: Michael D. Henry, 689-2677

Hornby: Gardiner Bills, 962-0882

Hornesville: Hornell Humane Society, 324-1270

Jasper/Woodhull: Richard Harrison, 458-5724

Lindley: Douglas Taft, 523-7779

Prattsburgh/Wheeler: Donald Gifford, 776-6058

Pulteney: John and Sherri Ballam, 522-5030

Rathbone: Jerry Aldrich, 359-2908

South Corning Village: Jay Josephson, 524-6603

Thurston: Gregory Crans, 776-2678

Troupsburg: John Space, 525-6354

Tuscarora: Paulena Webester, 350-3604

Wayne/Urbana: Marvin Rethmel, 569-3737

West Union: Alice Delill and Doris Williams, 225-4483

TOMPKINS COUNTY

Town of Ulysses: Chris Austin, Dog Control Officer, 387-9598

Towns of Lansing and Groton: Country Acres Pet Services, 749-2734, cell 423-2888

Town of Dryden: Richard and Gena Leonard, 844-3641, cell (for emergencies only) 351-2144

The City of Ithaca and the Towns of Danby, Caroline, Newfield, Enfield and Ithaca receive animal control services from the SPCA: 319-5067, emergency/off hours 592-6773

If there is not an animal control officer in your community, call your local police department or, in case of emergency, 911 to make sure they are informed of a dangerous animal!

We hope you found this information helpful. If you or a loved one has been the victim of a dog attack or dog bite please feel free to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com