Dog Bites Man

There are a lot of dogs in the New York City area; thousands, actually. Most encounters with the City's dogs are friendly and fun. Sometimes, unfortunately, they do not end up as one intended. If a dog attacks and injures you, can you hold the owner liable? The short answer is, maybe. An owner is strictly liable for a dog bite if the injured person can show that the owner knew or should have known of the dog's vicious propensity.

Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.

New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).

The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case

Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.

Matthew Lombardi, Associate Attorney