Did One Owner Have Claim against the Others?

On August 24, 2017, Irma Sanchez brought her dog, Patron, for a playdate with Michael and Marsha’s dog, Gizmo, at the Birds’ residence. Sanchez alleged that Gizmo ran up to her and knocked her down during the playdate. And alleged that the Birds knew of Gizmo’s propensity to knock people down. On July 11, 2018, Sanchez sued the Birds for damages for the alleged injuries she sustained when Gizmo knocked her down.

The Birds moved for summary judgment dismissing the Sanchez complaint. And alleged that Gizmo did not have any vicious propensities. In support of their motion, they contended that their dog knocked Sanchez down to the ground as a result of playing with Patron in the yard. According to the Birds, they could not be liable for Gizmo’s normal dog behavior. They also alleged that Gizmo did not have any vicious propensities as evidenced by both Sanchez’ and Michael Bird’s examinations before trial. They testified that neither of them had seen or were aware of Gizmo biting, growling, or showing his teeth toward anyone. The Birds highlighted the fact that Sanchez testified that when their dogs played with each other, they did so in a playful manner and Gizmo did not act aggressively toward Patron. And the dogs had playdates frequently, at least one to two times per week prior to the incident.

In opposition, Sanchez refuted the Birds’ contentions and alleged that there were genuine issues of material fact. She alleged that Gizmo viciously knocked her down, and did not do so while playing with Patron because Patron was not in the area when she fell. Additionally, about six months to a year prior to the August 24, 2017 incident, Gizmo knocked her down during a playdate between the two dogs at her residence. Sanchez testified that during that incident Gizmo went away from Patron to specifically go to her and then proceeded to knock her down. She also argued that Michael Bird testified that Gizmo had previously knocked him down while Gizmo was playing with another neighbor’s dog. That, according to Sanchez, constituted evidence of Gizmo’s vicious propensity to knock people down.

In reply, the Birds alleged that Sanchez failed to raise a triable issue of fact.  Michael Bird testified that the first incident where Sanchez fell was due to both dogs knocking her down as they were both running at high speeds. And continued to contend that, during the August 24, 2017 incident, Gizmo was playing with Patron and did not intentionally attack Sanchez.

New York does not recognize a common-law negligence cause of action for injuries allegedly caused by a domestic animal. To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities of which the owner knew or should have known.

Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others. An animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit.

The Court found that the Birds’ established their prima facie entitlement to judgment as a matter of law. Both Michael Bird and Sanchez testified their dogs had frequent playdates, where they would run around, and their interactions were playful. And they both testified that that neither of them had seen Gizmo bite, growl, or bare his teeth at anyone.

But Sanchez raised triable issues of fact based upon the conflicting testimonies of the parties. Sanchez testified that during an incident about six months to one year prior to August 24, 2017, while playing with Patron, Gizmo left Patron and directly went to her and knocked her down. And Michael Bird testified that both the dogs knocked Sanchez down during that incident because they were running while playing with each other.

Sanchez testified that during the August 24, 2017 incident, Gizmo knocked her down while Patron was not in the area. And Michael Bird testified that though he was present, he did not see the cause of Sanchez’ fall.

The Birds alleged that Gizmo’s actions of knocking people down while running and playing with other dogs was normal dog behavior and not actionable. However, a dog behaving in a manner that is not necessarily considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk or harm, may be found to have vicious propensities.

In viewing the evidence in the light most favorable to Sanchez, the non-moving party, the Court found that there were triable issues of material fact regarding whether the alleged incidents of Gizmo knocking down Sanchez constituted normal dog behavior or vicious propensities.

The Birds’ motion for summary judgment was denied.