A friend recently told me a story of a particular house in her neighborhood that she avoids on her walks with her children, since the dog “looks and acts vicious”. In the past, neighbors have complained of the dog running up to the end of the property with a loud, intimidating bark; however, the dog has yet to run off of the property. There is an alleged electric fence, but everyone has heard of dogs that run off of the property despite that type of fence.
In terms of potential liability for a pet owner, an animal with “vicious propensities…to do any act that might endanger the safety of the person and property of others”, will subject the owner to liability on a theory of strict liability if it is reasonably foreseeable that the animal could cause injury. Vicious propensities mean the “propensity to do any act that might endanger the safety of the persons and property of others” Doerr v. Goldsmith, 25 N.Y.3d 1121-1122 (2015). To reiterate: an owner is not liable for any injuries that are not reasonable foreseeable. Reasonably foreseeable means that the owner “knows or has reason to know”.
When talking about domestic animals, Agricultural and Markets Law Sections 108(7) and 370 makes a distinction between farm animals (pigs, cows, and horses) and domestic pets (such as cats and dogs). In Hastings v. Sauve, the Court of Appeals held that a negligence cause of action could be sustained with regard to farm animals. In that case a motorist was injured when her car hit a cow in the middle of the street. The Court specifically stated that, “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law 108(7)–is negligently allowed to stray from the property on which the animal is kept.” Id at125-126. In this situation, the cow was not “aggressive or threatening”. The cow merely wondered off the farmer’s property which occurred through negligence of the owner of the property and owner of the cow. The cow did not have any “vicious propensities” making this fail as a strict liability case, so if the court did not allow the injured party to proceed under ordinary tort negligence, it would “immunize defendant who take little or no care to keep their livestock out of the roadway of off of other people’s property. Id at 125.
Despite this, two years later, in Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 35 N.E.3d 796, 797 (2015), the Court of Appeals considered negligence in an incident concerning a domestic pet, rejecting a negligence cause of action. Doerr concerned two instances where bicyclists were injured by dogs when (1) in the first case the dog ran into the bike path from the owner’s boyfriend to the owner who summoned the dog to her (while conforming with leash laws that allowed the dogs to be off the leash at those times) and (2) in the second case, two dogs ran outside onto their farm into the nearby street. The Court held that the dog owners were not liable under a theory of negligence since dogs are not subject to an owner’s duty to prevent them from wondering off the property, as is the case with farm animals, and the dog owners were not liable under strict liability because there was no showing of any vicious propensities by the dogs. The Court concluded that “[r]ecognizing strict liability as the only viable theory of recovery” the defendants had proven that they “lacked actual or constructive knowledge that the dog had a propensity to interfere with traffic”. Id at 1121.
So, going back to the scenario above regarding my friend who avoids the vicious dog in her neighborhood, all of this legal analysis begs the question of: What are some examples actual or constructive knowledge of an animal’s propensity to endanger the safety of another? Here are some examples:
1) Chaining a dog to a fence or something similar to prevent it from jumping on people;
2) Posting a “beware of dog” sign can contribute to actual knowledge of the animal’s propensity to endanger others;
3) Violating a leash law;
4) Proof or prior, similar acts ;
5) Using a dog as a “guard dog” can contribute to actual knowledge of the animal’s propensity to endanger others;
6) A dog known to bare its teeth, snap, or growl; and
7) Jumping up to greet people, even if in a playful manner.
If a dog does one or more of these things, there could be a strong case that the owner will be strictly liable for any damages arising from injury to another.
Cari Rincker is a recognized animal lawyer in New York and handles a myriad of pet and farm animal law issues. She is also a trained mediator and available to mediate animal law disputes.