Holding Court: Biting Assessment of the Law

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

In 2006, New York’s highest court affirmed the rule that there can be no common-law negligence liability when a domestic animal causes harm. A recent case reviewed this law.

In a set of facts worthy of a Hanna and Barbera cartoon, a female mailman (a postal carrier) while delivering a package to a residence was bitten by a dog. On arriving at the dog owners’ house, the mailman found the mailbox missing. She pulled her vehicle into the horseshoe driveway to leave a package on the porch. She heard a dog barking. She saw no warning that the property had a dangerous dog either at the post office or on the scanner given to postal carriers. She did not see a “beware of dog” sign on the property. She confirmed the barking dog was not outside and exited her vehicle.

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Recent dog bite stories on MyRye.com:

Aggressive Off Leash Dogs Spark Resident Concerns

LETTER: Another Dog Biting Incident

On Vale Place, Residents Feel Bitten by Dog Owner

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The dog owner opened the door to meet the mailman on the porch. As the mailman handed the owner the package, she began to tell the owner that the mailbox was down. The mailman then heard the sound of nails “ticking” on a hardwood floor and saw a large dog approaching the door from inside the house. The dog slipped past the owner through the open door and, as owner yelled its name, and lunged towards the mailman. She raised her hand to cover her face and neck. The dog bit her shoulder, causing serious injury requiring multiple surgeries and leaving permanent scarring.

The dog was acquired by the owners as a puppy several years earlier and had taken training classes. The dog did not exhibit aggressive tendencies toward people and was affectionate with visitors. The dog did not growl or bare its teeth, and there were no complaints about the dog prior to the incident. The lawsuit and appeals followed.

The owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Once an owner’s actual or constructive knowledge of their animal’s vicious propensities is established, the owner “faces strict liability for the harm the animal causes as a result of those propensities.” The Court of Appeals traced the history of negligence. Negligence is the absence of care, according to the circumstances and summarized general negligence law saying when people go about their daily lives, the law generally requires them to take reasonable steps to prevent foreseeable harm.

By exempting owners of domestic animals from negligence liability, the 2006 case departed from these principles, and the standard incentives of our tort system, in several respects. For one thing, foreclosing negligence liability shifts both the burden of due care and cost of injuries away from owners of domestic animals to parties injured by those animals. And by allowing liability only upon proof that the owner had actual or constructive knowledge of a vicious propensity, the rule gives owners of domestic animals little reason to familiarize themselves with any potential proclivities that might lead the animal to cause harm, and in turn, to take reasonable steps to prevent any harm that may result.

The 2006 case was overruled. That means that there is a two-pronged approach to liability for harms caused by animals: A plaintiff who suffers an animal-induced injury therefore has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold them strictly liable. Or they can rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. Of course, a plaintiff might also assert both theories of liability.

I guess I will have to retrain my watch turtle – although he is useless on linoleum floors.