Opinion
70026/2017
04-30-2019
Joanne VISAGGIO and David Visaggio, Plaintiffs, v. Colette ARENA a/k/a Colette Arena Watson and Dennis Watson, Defendants.
For Plaintiffs Michael P. Eisenman, Esq. Miller Eisenman & Kanuck, LLP 450 Seventh Avenue, Suite 1400 New York, NY 10123 (212) 679-0400 For Defendants Nick Migliaccio, Esq. Law Office of Thomas K. Moore Mailing Address: P.O. Box 2903 Hartford, CT 06104-2903 (914) 285-8500 Attorneys for Defendants
For Plaintiffs
Michael P. Eisenman, Esq.
Miller Eisenman & Kanuck, LLP
450 Seventh Avenue, Suite 1400
New York, NY 10123
(212) 679-0400
For Defendants
Nick Migliaccio, Esq.
Law Office of Thomas K. Moore
Mailing Address:
P.O. Box 2903
Hartford, CT 06104-2903
(914) 285-8500
Attorneys for Defendants
Terry J. Ruderman, J.
The following papers were considered in connection with the motion by defendants for summary judgment dismissing the complaint:
Papers Numbered
Notice of Motion, Affirmation, Exhibits A - N 1
Affirmation in Opposition, Exhibits 1 - 2, and Memorandum of Law 2
Reply Affirmation 3
This is an action for personal injuries allegedly sustained by plaintiff Joanne Visaggio in an incident that occurred in the Mount Kisco home of defendants Colette Arena a/k/a Colette Arena Watson and Dennis Watson on April 8, 2017. Ms. Visaggio alleges that while she was a guest in defendants' home, when she was in the process of ascending an inside staircase, their dog, "Chance," leaped and/or lunged at her, causing her to fall and sustain injuries.
Chance is a young pit bull that defendants adopted in December 2016, when he was approximately fourteen months old. Defendants describe Chance as a very friendly dog, weighing approximately 65 lbs., who likes to jump up on people and lick their faces. Ms. Watson described that, beginning in January 2017, she enrolled Chance in training classes: First in a class at the Putnam Humane Society in January 2017, then a six week program of classes at Petco starting in March 2017, as well as private lessons at Petco with the same trainer. By April 2017, Chance had completed approximately four weeks of training at Petco, including one or two private sessions.
Ms. Watson and Ms. Visaggio lived in the same neighborhood and were friendly; they spoke on the telephone and texted, saw each other at the gym and occasionally had dinner together. The two women agreed that Ms. Visaggio would help Ms. Watson conduct a training exercise provided by the Petco dog trainer, and test Chance's responses, in advance of a party Ms. Watson was planning for her husband.
The two women met with the dog trainer at Petco, who instructed Ms. Visaggio to ignore Chance and to keep turning away from him when he tried to jump on her. After fifteen minutes of discussion, Ms. Visaggio and Ms. Watson went to the Watsons' home. When Ms. Visaggio entered the Watsons' home, Chance immediately tried to jump up onto Ms. Visaggio, putting his front paws on her, and she repeatedly turned away and ignored him, as instructed. Ms. Watson then commanded Chance to go upstairs, which order he obeyed. Ms. Watson then ascended the six-step staircase, and Ms. Visaggio asked Ms. Watson if it was all right for her to follow; Ms. Watson said it was. Ms. Visaggio then proceeded to ascend the staircase.
The two women's descriptions of what followed diverge at this point. Ms. Visaggio testified that as she ascended, holding the bannister, the next thing she saw was Chance, having leapt into the air, coming straight toward her, causing her to fall in her effort to avoid him. In contrast, Ms. Watson testified that she was on the top landing, holding onto Chance, when Ms. Visaggio, who was not holding onto the railing, lost her balance and fell back.
Plaintiffs' first cause of action sounds in strict liability, the second alleges reckless disregard, and the third is a derivative claim.
In moving for summary judgment, defendants argue that plaintiffs cannot make out a showing in support of their strict liability claim or any other cause of action. They offer in support the deposition testimony of each party, and affidavits of the veterinarian who has provided medical care to Chance, the dog trainer who provided training, and friends and neighbors who attest to Chance's friendly, non-aggressive behavior.
Analysis
In moving for summary judgment, defendants emphasize that Ms. Visaggio's testimony does not specify that her fall was due to the dog pushing her over, or even how exactly the dog made contact with her. However, for purposes of a summary judgment motion, the evidence must be viewed in the light most favorable to the non-movants and all reasonable inferences must be resolved in their favor (see Giraldo v. Twins Ambulette Serv., Inc. , 96 AD3d 903, 903 [2d Dept 2012] ). Therefore, notwithstanding defendants' narrative to the contrary, and some lack of specificity by Ms. Visaggio regarding the exact manner in which Chance's asserted leap in her direction caused her fall, this Court must not only allow for the possibility that Ms. Visaggio's account may be accepted as true, but must also allow for the inference that it was Chance's asserted leap through the air from the landing toward Ms. Visaggio that caused her to fall.
Defendants also argue that plaintiffs fail to establish the showing required for a finding of strict liability, relying on the rule enunciated in Collier v. Zambito (1 NY3d 444 [2004] ), and re-affirmed thereafter:
"[W]hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier — i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities" ( Petrone v. Fernandez , 12 NY3d 546, 550 [2009], quoting Bard v. Jahnke , 6 NY3d 592, 599 [2006], citing Collier v. Zambito, 1 NY3d at 446-447 ).
"[N]egligence is no longer a basis for imposing liability after Collier and Bard " ( Petrone v. Fernandez , 12 NY3d at 550, quoting Alia v. Fiorina , 39 AD3d 1068, 1069 [3d Dept 2007] ; see also Doerr v. Goldsmith , 25 NY3d 1114 [2015] ).
Defendants further assert that strict liability has not been properly alleged due to the complete absence of any evidence that Chance has "vicious propensities." However, the term "vicious propensities" does not require that the animal be vicious. The term includes the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation" ( Collier , 1 NY3d at 446, quoting Dickson v. McCoy , 39 NY 400, 403 [1868] ). "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit" ( Collier , 1 NY3d at 447 ). Therefore, the overwhelming evidence that Chance is friendly and that his conduct of jumping on visitors is motivated by high spirits does not in itself disprove the elements of strict liability.
"Indeed, ‘[a] known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act’ " ( Gammon v. Curley , 147 AD3d 727, 728 [2d Dept 2017] ), quoting Anderson v. Carduner , 279 AD2d 369, 369-370 [1st Dept 2001] [internal quotation marks omitted] ). In Anderson v. Carduner , the First Department reversed the motion court's grant of summary judgment in favor of the defendant dog owner where "the dog ... allegedly injured the plaintiff by poking its snout in her eye while standing up on its hind-legs," explaining that the owner had admitted knowledge of the dog's "tendency to ‘rise up’ to ‘greet’ people" (279 AD2d at 369 ). In contrast, in Gammon v. Curley (147 AD3d at 728 ), where the plaintiff alleged that she was knocked to the ground when the defendants' dog ran at her, jumped up on its hind legs, and made contact with the upper part of her chest, the defendants' summary judgment motion was granted because the dog had no history of any such conduct previously.
Here, there is significant evidence that defendants were well aware that Chance had a habit of jumping up onto people, so much so that Ms. Watson had been in the process of attempting to train him, with professional assistance, so as to control that habitual behavior. Chance's conduct is analogous to that of the dog in Anderson v. Carduner , which had an acknowledged "tendency to ‘rise up’ to ‘greet’ people" ( 279 AD2d at 369 ), and falls within the category, described in Gammon v. Curley , of an "overly friendly large dog with a propensity for enthusiastic jumping up on visitors" ( 147 AD3d at 728 ). Defendants' contention that Chance had not previously knocked anyone over by jumping up on them does not preclude liability on the theory employed in the above-cited cases.
Despite the evidence that Chance has "a propensity for enthusiastic jumping up on visitors" (id. ), defendants also argue that there is no evidence that he had a propensity for leaping from the top of a staircase toward a visitor ascending those stairs, let alone that defendants knew or should have known that he had any such propensity. The case law requires that where a "vicious" propensity is proved, the claimed injury must be due to that proven repeated and known behavior: "[a] known tendency to attack others, even in playfulness, ... will be enough to make the defendant liable for damages resulting from such an act " ( Gammon v. Curley , 147 AD3d at 728 [internal quotation marks and citations omitted].
However, the distinction that defendants draw fails to completely preclude any liability in the present situation and establish grounds for summary judgment dismissing plaintiffs' action. While an animal's "proclivity to act in a way that puts others at risk of harm" will only render its owner liable "when such proclivity results in the injury giving rise to the lawsuit" ( Collier , 1 NY3d at 446, 447 ), it cannot be said here as a matter of law that Chance's recognized propensity to leap on visitors would not prompt him to jump in a downward direction from an upper landing, rather than in an upward direction from the floor or ground. His propensity is the act of jumping at people out of excitement; the venue at which he begins the jump does not render it a different act. Enough evidence having been offered to create questions of fact as to whether (1) Chance had a propensity to jump up on visitors, (2) defendants knew or should have known about that propensity, (3) Chance acted on that propensity by jumping toward Ms. Visaggio, and (4) that Ms. Visaggio was injured as a result. Accordingly, defendants' motion for summary judgment dismissing plaintiffs' cause of action sounding in strict liability must be denied.
The unaffirmed medical records submitted with plaintiffs' opposition to defendants' summary judgment motion are inadmissible (see Codrington v. Ahmad , 40 AD3d 799 [2d Dept 2007] ); however, that has no impact on this motion, which did not turn on medical or damages issues.
Finally, while the foregoing discussion reflects that under current New York law, strict liability is the only available theory where harm is allegedly caused by a domestic animal, and only when the harm is cause by the animal's "vicious propensities" and the owner knows or should have known of those propensities, it is noted that nothing in defendants' moving papers even mentioned plaintiffs' cause of action sounding in reckless disregard. In the absence of any such mention, the question of whether that cause of action should be dismissed will not be addressed in this context (see Cutler v. Thomas , ––– AD3d ––––, 2019 NY Slip Op. 02675, 2019 WL 1549678, 2019 NY App Div LEXIS 2746, *4 [2d Dept 2019] ).
In view of the foregoing, it is hereby
ORDERED that defendants' motion for summary judgment dismissing the complaint is denied, and it is further
ORDERED that the parties are directed to appear in the Settlement Conference Part on Tuesday, May 28, 2019 at 9:15 a.m. to schedule a trial.
This constitutes the Decision and Order of the Court.