LONG v. HESS (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, defendant's motion is granted and the complaint is dismissed.

Memorandum:  Plaintiff commenced this action seeking to recover damages for injuries she sustained when defendant's dog, Kane, allegedly ran into her while running alongside plaintiff's dog in a fenced-in area behind a school that is used as a dog park.  Supreme Court denied defendant's motion for summary judgment dismissing the complaint.  We reverse.

Preliminarily, as plaintiff correctly concedes, “a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury” (Antinore v. Ivison, 133 A.D.3d 1329, 1329, 19 N.Y.S.3d 649 [4th Dept. 2015];  see Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796 [2015] ).  We thus agree with defendant that the court erred in denying that part of his motion with respect to the negligence cause of action.

We further agree with defendant that the court erred in denying that part of his motion with respect to the strict liability cause of action, based upon Kane's alleged vicious propensities.  It is well established that “an 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 v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ).  “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” (Lewis v. Lustan, 72 A.D.3d 1486, 1487, 899 N.Y.S.2d 767 [4th Dept. 2010] [internal quotation marks omitted];  see Pollard v. United Parcel Serv., 302 A.D.2d 884, 884, 754 N.Y.S.2d 473 [4th Dept. 2003] ).  “In contrast, ‘normal canine behavior’ such as ‘barking and running around’ does not amount to vicious propensities” (Brady v. Contangelo, 148 A.D3d 1544, 1546, 50 N.Y.S.3d 690 [4th Dept. 2017], quoting Collier, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254;  see Bloom v. Van Lenten, 106 A.D.3d 1319, 1321, 965 N.Y.S.2d 661 [3d Dept. 2013];  see generally Bloomer v. Shauger, 21 N.Y.3d 917, 918, 967 N.Y.S.2d 322, 989 N.E.2d 560 [2013] ).

Here, defendant met his initial burden of establishing that he lacked knowledge of any vicious propensity on the part of Kane that resulted in the injury, and plaintiff, who relied solely upon defendant's submissions, failed to raise an issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).  The evidence establishes that, on the day of the incident, plaintiff sent a text message to a group of people that included defendant, as she had on previous occasions, to inform them that she would be at the dog park with her dog, who often played with Kane. Immediately prior to the incident, plaintiff threw a ball for her dog, plaintiff's dog retrieved the ball and, as he had frequently done in the past, Kane ran alongside plaintiff's dog back toward plaintiff.  Both dogs were running fast in plaintiff's direction and, when it appeared that Kane was not going to veer off to the side, plaintiff turned away, whereupon Kane allegedly struck her leg.  Despite evidence that Kane may have clumsily run around the dog park and similarly made contact with another visitor on a prior occasion, we conclude that, unlike situations in which a dog purposefully jumps onto or charges at a person (see e.g. Lewis, 72 A.D.3d at 1486–1487, 899 N.Y.S.2d 767;  Marquardt v. Milewski, 288 A.D.2d 928, 928, 732 N.Y.S.2d 801 [4th Dept. 2001] ), “[Kane's alleged] act of running into plaintiff in the course of ․ playfully [running alongside another dog at a dog park] merely consisted of normal canine behavior that does not amount to a vicious propensity” (Bloom, 106 A.D.3d at 1321, 965 N.Y.S.2d 661;  see Brady, 148 AD3d at 1546;  Hamlin v. Sullivan, 93 A.D.3d 1013, 1013–1015, 939 N.Y.S.2d 770 [3d Dept. 2012] ).