DOG BITES: Landlord Liability

New Yorkers love dogs.  But living in a large urban area where many residents have dogs has a potential downside- dog bites.  Sometimes a dog will escape an apartment or leave a property and, whether being frightened or simply aggressive, ends up biting someone.  Unfortunately, many of the dog owners in NYC are renters, do not carry insurance and are essentially judgment proof for the damage done by their animal.  When investigating the case, it is important to consider the potential liability against the dog owner’s landlord.  Like any other dangerous condition within a building, if the landlord is aware of the condition and fails to remedy it, they may be liable.  In the case of a dog bite, the specific questions become:  did the landlord have (i) notice of the prior vicious propensities of the subject dog; and (ii) sufficient control of the premises to “remove or confine” the dog.  Bennett v. White, 2007 Slip Op 1499 (2nd Dep’t 2007); Sarno v Kelly, 912 N.Y.S.2d 130 (2nd Dep’t 2010).  If so, and the landlord failed to take proper action, the landlord may be strictly liable for the injuries caused by the dogSee, Bard v Jahnke, 815 N.Y.S.2d 923 (2006).  Moreover, the elements of strict liability are less onerous to establish than common negligence, since they do not require proof of the unreasonableness of a defendant’s actions.

Where there is clear proof that a landlord was on notice that a tenant housed a vicious dog and failed to act in a timely manner to correct the situation, the injured party is entitled to judgment against the landlord.  See, e.g., Crawford v NYC Housing Authority, 824 N.Y.S.2d (2d Dep’t 2006).  In Crawford, the landlord had received a complaint that a pit bull in the building had attacked another tenant’s dog.  Despite the notice, the landlord failed to action for more than a year, during which time plaintiff was attacked by the same pit bull dog.  The Appellate Division upheld the jury verdict finding of 60% responsibility against the landlord and 40% responsibility against the offending dog owner.  Id.

Importantly, a strict liability theory can be advanced both against the dog owner and the landlord with knowledge of the dogs vicious propensities.  In some circumstances, plaintiff may even be entitled to summary judgment if the facts of the dog’s vicious propensity can not be reasonably disputed.  In the case of Spyridon v. Scarrone, Supreme Court, Queens County, 10596/10, NYLJ, July 17, 2012, plaintiff was putting up Christmas decorations in her yard when the neighbor’s dog entered her property and attacked plaintiff unprovoked, biting her in the shoulder.  Plaintiff filed a lawsuit for personal injury, but did not specifically assert a claim of strict liability.  The defendant dog owner moved to dismiss the complaint claiming plaintiff failed to properly plead a cause of action.   Plaintiff cross moved for Summary Judgment on the issue of liability.  The court found that although plaintiff’s complaint did not specifically plead strict liability, the “elements of a strict liability claim are present in the complaint and give defendants adequate notice”.  Id.  As the court recognized, “[t]he standard to be applied in the within action is that the ‘[o]wner of a domestic animal who either knows or should have known of the animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities, citing, Collier v. Zambito, 1 NY3d 444, 446 (2004)”.  The Spyridon court not only permitted plaintiff to move on the theory of strict liability, it awarded summary judgment in plaintiff’s favor against the dog owner.

 

Myers, Singer & Galiardo LLP

Myers, Singer & Galiardo LLP