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Sept 16, 2003 - Varied Approaches Taken to Determine 'Vicious Propensity'

Spunky, a part-Border Collie adoptee, was clearly a bad dog when he bit a visitor at his owner's home. But whether the mutt's errant ways are actionable has prompted an analysis into the "conflict and confusion" of the state's dog bite case law by a Nassau County judge.

District Court Judge Kenneth L. Gartner in Gaffney v. Kennedy, 19607-02, sorted through a mosaic of decisions to reach the conclusion that the case against Spunky's owner could not stand. In dismissing the action, the judge found that despite sharply differing versions of what actually happened the day Spunky crossed the line, the plaintiff failed to show that the animal had a vicious propensity, about which the owner knew, or should have known.

Judge Gartner wrote that ruling on the dog owner's motion to dismiss required him "to address an area in which there are several levels of conflict and confusion -- conflict between the Appellate Divisions, conflict within the Second Department, and conflict between what the courts say, and what they in fact do."

The 14-page decision stemmed from a visit that Frances Gaffney made to the home of Joseph Kennedy, who had adopted 8-year-old Spunky about six months prior. Problems ensued when Ms. Gaffney's son came to the door while Mr. Kennedy and Ms. Gaffney were inside the home.

Ms. Gaffney asserted that Spunky became excited and charged the door to attack her son after he rang the doorbell. She alleged that Spunky not only bit her on the leg during the confusion but also bit his owner. Such behavior, Ms. Gaffney argued, made it improbable that Spunky had no prior aggressive behavior, thus creating a jury question.

Mr. Kennedy countered that Spunky snapped only because his paw became caught in the door while clambering to greet, not attack, the boy. He also testified in his deposition that he had never had any problems with the dog and knew of no single instance of biting.

Burden of Proof

In granting Mr. Kennedy's motion to dismiss, Judge Gartner noted that the general issue of whether the dog had vicious propensities and whether its owner had reason to know of any such tendencies required consideration of the dog's breed, its prior behavior, the nature of the attack and the severity of the injuries inflicted. It is those factors, he found, that have created an assortment of holdings from courts across the state.

While all courts require a showing of a bite, vicious propensities and the owner's knowledge of them, the "different shades of cases" have led to a variety of rulings, said Robert S. Kelner, a partner with Kelner & Kelner in New York and former president of the Association of Trial Lawyers of America and the New York State Trial Lawyers Association.

Mr. Kelner added that the 'he-said, she-said' phenomenon present in Judge Gartner's case often is the death of plaintiffs' dog-bite lawsuits.

The actions frequently boil down to whether owners have witnessed their dog's vicious propensities, behavior they often deny, he said.

"You have to prove the case out of the defendant's mouth," Mr. Kelner remarked.

Indeed, Judge Gartner's Sept. 2 ruling observed that a plaintiff's burden in showing a dog's vicious tendencies is onerous under a decision issued this year from the Appellate Division, Second Department.

In Blackstone v. Hayward, 304 AD2d 941, the appeals panel reversed a lower court and held that the plaintiff's evidence indicating the dog had a "nasty" disposition, according to veterinary records, and had chased bicyclists and fought with other dogs did not meet that burden.

The panel in Blackstone found that the defendant's own assertion that the dog, a Great Dane, had never bitten, growled or displayed other aggressive behavior was enough to negate the existence of any jury question, even though the 130-pound animal had bitten the plaintiff's 7-year-old daughter on the face.

Nature of Attack and Breed

If Judge Gartner considered only the holding in Blackstone, the case before him warranted a dismissal, he wrote. However, his analysis did not end there.

He also looked to a 1984 Court of Appeals decision, Strunk v. Zoltanski, 62 NY2d 572, which held that the nature of a dog attack and the inherent nature of the breed can imply vicious propensities. The Strunk case dealt with a German Shepherd.

Despite that ruling, the Appellate Division, First Department in Sers v. Manasia, 280 AD2d 539, two years ago affirmed a lower court's decision to grant summary judgment to the defendant, also an owner of a German Shepherd.

The panel in Sers wrote, "The nature and severity of the attack does not demonstrate knowledge of the dog's alleged vicious propensities, nor does evidence of the violent tendencies of this particular breed raise a triable issue of fact as to the propensity for violence of this particular dog."

Still other courts have held that a single first bite from a Pit Bull could result in liability, although the First Department, in Carter v. Metro North Associates, 255 AD2d 251, determined in 1998 that taking judicial notice of the breed's vicious nature was improper. Subsequent to Carter, other courts have wrestled with whether viciousness can be inferred in different breeds, such as Rottweilers and Afghan hounds. In addition, whether an owner posts a Beware of Dog sign has prompted much litigation, wrote Judge Gartner, noting that such a sign in Beljean v. Maiuzzo, 256 AD2d 533 [2nd Dept. 1998] worked to the defendant's detriment by raising an issue of fact regarding a dog's vicious propensities.

Perhaps closest to the facts before him, he observed, was a 2002 case from the Fourth Department, Collier v. Zambito, 299 AD2d 866. In Collier, the only evidence of viciousness was that the dog, a Rottweiler-Beagle mix, was regularly kept segregated from the family by a gate because of its excitable temperament. The dog bit a 12-year-old boy after he was allowed to approach the dog to enable it to smell his hand.

The majority in Collier, reversing the lower court, found the evidence insufficient to defeat the owner's motion for summary judgment, although the two-judge minority felt that such a showing was sufficient.

But Judge Gartner, in the end, found that the facts in his case distinguished it from other rulings that had permitted a plaintiff's claim to move forward. He determined that the attack was not as vicious as other cases denying a defendant's motion for summary judgment nor were the injuries as severe. He further reasoned that a Border Collie mix does not have a reputation like that of a Pit Bull, Rottweiler or German Shepherd. Moreover, no Beware of Dog sign was present.

Finally, the amount of time that Mr. Kennedy had owned Spunky was significant, the judge wrote.

"The six months for which the defendant owned Spunky prior to the event at issue was a brief enough period to substantiate the defendant's claim to have been unaware of any prior "bad acts" or temperament, yet a long enough period -- given the regularity of her visits to the defendant's residence -- for the plaintiff, if the dog in fact possessed obvious vicious tendencies, to have made personal observations more substantial than those upon which the plaintiff's claim here rests," the decision stated.

Julian Denenberg, in Brooklyn, represented Ms. Gaffney. James P. Nunemaker, in Uniondale, represented Mr. Kennedy.

Are breeds such as Rottweiler, top, and Pit Bull, factors in determining viciousness?

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TOLEDO, OHIO CIVIL LITIGATION ATTORNEYS. AUTOMOBILE ACCIDENTS, PREMISES LIABILITY, SLIP & FALL, DOG BITES, EMPLOYER INTENTIONAL TORT, INSURANCE BAD FAITH, WRONGFUL DEATH