Opinion
210004/2018E
04-20-2021
Kathleen STACK, Plaintiff, v. Frank MANFREDI and Lillian Manfredi, Defendants.
Upon a reading of the foregoing papers, the motion of defendants for summary judgment pursuant to CPLR § 3212 and dismissing the complaint, is decided as follows:
Plaintiff, Kathleen Stack, a home health aide alleges that she was injured on June 14, 2017, on defendants', Frank Manfredi and Lillian Manfredi, premises at 115 Quinby Avenue, City of White Plains, County of Westchester, State of New York wherein she was attacked by a dog who charged at her causing her to brace herself against defendants' door to prevent from being bitten and attacked. In doing so, she is claiming injuries to her neck, back, shoulders, wrists, hands and ankles. Plaintiff alleges that the defendants had knowledge of the vicious propensity of the dog and that the defendants are strictly liable in tort, as well as negligence.
Defendants now move for summary judgment on the basis that plaintiff was never bitten by the dog, nor is there any evidence that the dog had a propensity for violence.
Defendants assert that their dog lacked vicious propensity, was friendly, and had never growled at, chased, bitten, or attacked anyone, and that they were unaware of any prior complaints about their dog's behavior. Citing, inter alia, Petrone v. Fernandez, 12 NY3d 546, 910 N.E.2d 993, 883 N.Y.S.2d 164, 2009 NY LEXIS 2035, 2009 NY Slip Op 4694 (summary judgment granted in a case of a mail carrier who was injured while a dog "came at her" and she was trying to escape by running away from a dog and attempting to get into her car) and Collier v. Zambito, 1 NY3d 444, 807 N.E.2d 254, 775 N.Y.S.2d 205, 2004 NY LEXIS 169 (summary judgment granted where normally friendly dog bit 12 year-old boy in the face), defendants argue that there can be no strict liability where a dog has not actually bitten anyone and there is no evidence of actual or constructive knowledge of the dog's propensity for viciousness.
As to plaintiff's negligence claim, defendants again cite Petrone, supra, to urge the court that there is no common law negligence liability for cases involving dogs.
Finally, defendants rely on Shannon v Schultz , 259 AD2d 937, 938, 686 NYS2d 906 [1999], lv denied 93 NY2d 816, 719 NE2d 924, 697 NYS2d 563 [1999] in anticipation that plaintiff's opposition would rely on defendants' "Beware of Dog" sign. Defendants assert that, in the absence of further corroborative evidence of a vicious propensity, the sign is insufficient to preclude summary judgment.
In opposition, plaintiff argues that there are triable issues of fact as to whether defendants had prior notice of the dog's vicious propensities and were negligent in allowing the doors to the property to remain open while the dog was on the premises.
First, plaintiff asserts that she suffers from over 40 serious and permanent injuries as a result of this incident during which the dog charged at the door with a loud bark and a growl. It should be noted that plaintiff's injuries are not relevant to this motion if there is no theory upon which defendants are liable.
Plaintiff contends that the deposition testimony of the defendants and their daughter clearly shows that they knew or should have known of the dog's vicious propensities prior to the subject incident. Both defendants testified that: 1) the dog would bark at all unfamiliar individuals either coming to the property or coming near the property; 2) would on a daily basis bark at the mail delivery person; 3) that the dog was territorial and sensitive to noise; (4) that the dog would already be at the front door barking when an individual came to the front door; and 5) that the dog would not stop barking and leave an individual until a member of the family said "it's okay." Additionally, defendants' daughter testified that the dog would charge in a "playful way", that it did have some issues biting hands and ankles when she was teething, and that the property did have a "Beware of the Dog" sign in the front yard prior to and at the time of the incident which she did not know the purpose of. Plaintiff asserts that together with the "Beware of Dog" sign, these behaviors raise an issue of fact regarding the dog's vicious propensities.
"Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm" ( Ioveno v Schwartz , 139 AD3d 1012, 1012, 32 NYS3d 297 [2d Dept 2016], lv denied 28 NY3d 905, 45 NYS3d 372 [2016] ). In contrast, ‘normal canine behavior’ such as barking and running around' does not amount to vicious propensities" ( Brady v Contangelo , 148 AD3d 1544, 1546, 50 NYS3d 690 [4th Dept 2017] ). The vicious propensity doctrine, which provides for strict liability against an owner of a domestic animal that causes harm, where the owner knows or should have known of the animal's vicious propensities, has been the law in New York since at least 1816 ( Collier v Zambito , 1 NY3d 444, 446 [2004], citing Vrooman v Lawyer , 13 Johns 339 [1816] ).
Plaintiff relies on Bard v. Jahnke, 6 NY3d 592, 599, 848 N.E.2d 463, 468, 815 N.Y.S.2d 16, 21, 2006 NY LEXIS 957, 2006 NY Slip Op 3440 (a case involving a farm animal) and Collier , supra, to urge the court that the dog in this case has vicious propensities. Contrary to plaintiff's contention, the Court of Appeals in Bard, rejected the plaintiff's strict liability claim because there was no evidence that the bull had ever exhibited threatening behavior toward other farm animals or humans ( id. at 597 ). In addition, the Court rejected the plaintiff's alternative argument that the defendant was negligent in failing to restrain the bull or warn the plaintiff of the bull's presence, holding that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the strict liability rule articulated in Collier " ( id. at 599 ). Finally, plaintiff's testimony that the dog was a "pit bull" is immaterial. The Court of Appeals has never held that particular breeds of domestic animals are dangerous, and therefore when any breed or type of dog causes harm, its owner is charged with knowledge of vicious propensities (see Bard , supra, at 599).
Therefore, the defendants have made out a prima facie case of entitlement to summary judgment by showing that they had no knowledge of the dog's vicious propensities, that the dog, in fact, had no vicious propensities and the dog's alleged conduct that resulted in plaintiff's injuries were not vicious. Plaintiff has failed to raise a genuine issue of fact about the defendants' actual or constructive knowledge of the dog's vicious propensities.
On the issue of negligence, plaintiff simply asserts that none of the defendants can state whether the front door or the storm door was closed at the time of the incident, thus leaving the dog the opportunity to attack plaintiff forcing her to brace the door to prevent the attack. Even assuming that the front door was slightly open, defendants owed no duty to plaintiff under a common negligence standard. In New York, a negligence claim may not be asserted against a defendant dog owner, even if there is negligence on the part of the owner, unless the dog has a propensity to be vicious (see Scavetta v. Wechsler, 149 AD3d 202, 49 N.Y.S.3d 436, 2017 NY App. Div. LEXIS 1943, 2017 NY Slip Op 01985, 2017 WL 1013370 , citing Bard , supra, and Doerr v. Goldsmith, 25 NY3d 1114, 35 N.E.3d 796, 14 N.Y.S.3d 726, 2015 NY LEXIS 1332, 2015 NY Slip Op 04752 ).
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed.
This constitutes the Decision and Order of the Court.