Dog on a leash.thumbnail - When Dogs Attack: "Vicious Propensities" and Owner Liability Under New York State LawTo many people, dogs truly are “man’s best friend.” Certainly, dogs can be wonderful companions and add much to people’s lives.

As a dog lover and past Board member for the Chemung County SPCA, I wholeheartedly agree with all the great sentiments about dogs and the joy that they can bring.

Unfortunately, however, some folks do not realize the responsibilities that come with dog ownership – including controlling your dog and keeping it appropriately fenced or leashed. Often, not controlling or appropriately containing a pet hurts the pet. A dog can easily be the victim of an accident or become lost. In other scenarios, a dog owner’s lack of responsibility hurts other people. Our law firm has seen too many people scared for life from a dog attack or avoiding a dog attack.

When can someone be held responsible for a dog attack?

There is no easy answer to this question. It is more of step-by-step process, decided by a series of standards:

First, was the injured party bit by the dog or hurt while avoiding a dog? When people think of this area of law, many folks think an actual attack is required, but a pet owner can be held responsible if someone is injured fleeing a dog when they believe they are going to be attacked.

Second – and it gets more complicated here – did the dog owner know the dog had “vicious propensities” as is required under N.Y. dog bite law?

“Vicious propensity”… what in the world is that and what does it mean?

Like many things in the law, the answer to is: It’s complicated. See my related post, “Vicious Propensities”: Dog Owners’ Liability and Responsibilty to Spot Warning Signs of Attack” for details.

For the purposes of this post and simply put, it means: Could something about the dog’s behavior have tipped off the owners that this dog might have the tendency to attack someone? It could be something obvious – like vicious growling or biting in the past. However, it could be something less obvious – such as use as a guard dog.

The determination of whether a dog has exhibited vicious propensities must be determined on a case-by-case basis. Clearly, a prior attack or bite by the dog constitutes a vicious propensity, but short of a previous attack or bite, the determination must be based upon the facts of this particular dog’s history.

Can owners be held responsible if their dog is NOT LEASHED and it attacks?

Many municipalities in New York state, including Elmira, have leash laws whereby an owner can be fined for not keeping a dog confined or on a leash. But what about their being held liable in a civil proceeding if their dog is not leashed or confined and it attacks?

In the past, an owner could be held liable through negligence if a person was injured by a dog attack while the owner was violating the leash law.

Negligence? Generally, negligence means having a responsibility to act a certain way and then not doing it.However, it is a bit more complex and usually broken down into parts.

Specifically, negligence means that someone has a duty to do something, that duty is not completed and not following the duty caused the injury with damages. For example, if there was a duty to leash a dog, the owner did not leash it, the dog ran away from the owner and bit someone because it was loose, the person had medical bills and lost work, etc, that would amount to negligence.

Being held responsible for a dog biting when off a leash makes sense, right? After all, if the owner is supposed to keep a dog on a leash and does not, the owner should be held responsible if a person is hurt as a result of the pet being loose. The attack probably would not have happened if they were following the rules! Unfortunately, though, the high court of New York, the Court of Appeals, recently disagreed in the case of Petrone v. Fernandez.

N.Y. Courts take a step backward …

In Petrone v. Fernandez, a dog was not leashed or fenced, in violation of a local leash law. A mail carrier was delivering mail when she turned around to see a large dog running at her, only about six feet way. The mail carrier ran and attempted to jump in her car.

While jumping in her car through the window, her hand was stuck outside the car and she injured her finger, causing her pain for several months, missed work and was only able to engage in limited activities. She sued and, although the incident likely would not have happened had the dog been leashed, the court said that violating a leash law, although an indication of the owners’ negligence, was not enough to hold the pet’s owners responsible.

What does that all mean? It means that, as a result of this case, indications of negligence by the owners, including violating the law by not keeping the pet on a leash, is not enough is make an owner liable. In other words, negligence is NOT enough; the ONLY way that an owner can be held responsible is if they knew the dog had vicious propensities.

Why did the Court of Appeals change the law in the Petrone case?

Why the change and why discourage responsibility? Hard to say.

The court may want to simplify these cases and make them more “cut and dried” or maybe they think that violation of a leash law is not a good enough indication that the owners should be held responsible for their pet’s actions. Maybe they want to limit the cases on this subject.

Whatever the reason, it seems unlikely that insisting on the foreknowledge of “vicious propensities” will make things simpler or do justice to people who have been attacked.

Is it really fair to make someone that has been injured jump through hoops to prove that an owner knew of his or her dog’s vicious propensities – even when the incident likely would not have happened if the owner followed the law? And, what if no vicious propensities can be found – should a victim of such an incident be left without compensation and justice? We do not think so.

We hope you found this information helpful. Be sure to look at our other posts on dog bites and dog attacks here on the NY Injury Law Blog.

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
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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