Summary
In Lynch the court merely defined general principles of negligence without expressly instructing the jury that the plaintiff's recovery turned on a finding of negligence.
Summary of this case from Hayden v. SieniOpinion
January 26, 1987
Appeal from the Supreme Court, Nassau County (Rosenthal, J.).
Ordered that the judgment is reversed, on the law, and a new trial is granted on the combined issues of liability and damages, with costs to abide the event.
The infant plaintiff sustained injuries as a result of having been attacked by the defendant's dog while he was visiting with the defendant's daughters, who were his playmates. The facts in this record present a close question of liability, and, in light of several errors committed at the trial, reversal is warranted.
It is well established that absolute liability attaches where personal injury results from the act of an animal found to have vicious propensities, of which its owner knows, or should know. Liability is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner's keeping of the animal, despite his knowledge of the animal's vicious propensities (see, People v. Sandgren, 302 N.Y. 331; Muller v. McKesson, 73 N.Y. 195; Russell v. Lepre, 99 A.D.2d 489; Appel v. Charles Heinsohn, Inc., 91 A.D.2d 1029, affd 59 N.Y.2d 741). In determining whether an animal has vicious propensities, the jury may consider, inter alia, the nature and result of the attack on the plaintiff (see, DiGrazia v Castronova, 48 A.D.2d 249, 252; Perrotta v. Picciano, 186 App. Div. 781, 784; Ford v. Steindon, 35 Misc.2d 339, 340; PJI 2:220).
The trial court's charge to the jury on liability, insofar as it was prefaced by an instruction as to basic principles of negligence, was thus erroneous. A new trial is required to permit the jury to decide the issues "`without danger of confusion in their minds as to the law'" (Silber v. Seidler, 19 Misc.2d 516, 517, quoting from Johnson v. Blaney, 198 N.Y. 312, 317; see, Stoop v. Kurtz, 121 A.D.2d 529; Russell v. Lepre, supra).
The trial court further erred in denying the plaintiff's request for a unified trial, since proof regarding the nature, extent and gravity of the injuries sustained has an important bearing on the issue of liability insofar as it was relevant to the jury's assessment of the dog's propensities (see, Schwartz v Binder, 91 A.D.2d 660; Jacobs v. Broidy, 88 A.D.2d 904; Leiner v First Wythe Ave. Serv. Sta., 121 Misc.2d 559).
Finally, the trial court improperly excluded evidence as to the severity of the injuries sustained by a prior alleged victim of an attack by the subject dog and the treatment thereby necessitated, since this evidence was probative of both the dog's vicious propensities and the defendant's knowledge of those propensities. Niehoff, J.P., Kunzeman, Kooper and Sullivan, JJ., concur.