Editor’s Note: The following blog concerns a decision of the Appellate Division, Second Department, Petrone v. Fernandez, 53 A.D.3d 221, 862 N.Y.S.2d 522 (2009), which was reversed by the Court of Appeals. 12 N.Y.3d 546, — N.E.2d —-, 2009 WL 1585848, N.Y. Slip Op. 04694 (2009). In last month’s decision by the in Petrone v. Fernandez, 2008 WL 2669298, a Queens mail carrier injured her finger while jumping feet-first into her vehicle to avoid a rampaging Rottweiler. Plaintiff Melanie Petrone was making her rounds on the morning of May 9, 2005, when she observed an unleashed dog on the defendants’ lawn within several feet of her.
She decided to “flag” the house, meaning that mail would not be delivered so long as an unleashed dog was present. Ms. Petrone turned and began to walk back to her mail vehicle. She then noticed that the dog had begun chasing her and had entered the street behind her. Ms. Petrone, slowed by arthritis, began to run to her vehicle. To elude the dog, Petrone jumped feet-first through the open window of her vehicle, allegedly sustaining an injury to her finger.
The defendant in Petrone clearly violated the New York City Leash Law, section 161.05(a) of the New York City Health Code (24 RCNY 161.05[a]), which provides that: ‘a person who owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long.’
Leash laws are a recognition that the possession of dogs is subject to the limitation that such possession not interfere with the security, health, and comfort of others. The law was and is that a leash law violation, standing alone, is insufficient to support a finding of liability against a dog owner.
In Petrone the Appellate Division, Second Department, which sits in Brooklyn and reviews cases pending in Brooklyn, Queens, Nassau County, Suffolk County and Staten Island, held that liability can be imposed when the leash law violation is coupled with affirmative canine behavior such as a dog bite, or an attack upon the plaintiff, or where there is a history of prior violations, even in the absence of a showing that the dog owner or possessor had or should have had knowledge prior to the attack of the dog’s vicious propensities. Knowledge of vicious propensities may be established by proof of an animal’s attacks of a similar kind of which the owner had notice, or by an animal’s prior behavior that, while not necessarily considered dangerous or ferocious, nevertheless reflects a proclivity to place others at risk of harm.
Factors to be considered in determining whether an owner has knowledge of a dog’s vicious propensities include
1) evidence of a prior attack,
2) the dog’s tendency to growl, snap, or bare its teeth,
3) the manner of the dog’s restraint,
4) whether the animal is kept as a guard dog, and
5) a proclivity to act in a way that puts others at risk of harm.
The requirement of establishing knowledge of vicious propensities can make cases against owners and possessors of dogs for bites or other attacks causing personal injury difficult. Often the person injured has never seen the dog before, and the owner denies having knowledge of his pet’s vicious propensities.
One thing that Levine & Slavit does in these cases, besides interviewing neighbors, is obtain the records from the dog’s veterinarian, which sometimes contain entries indicating examples of vicious propensities.
Considering the frequency with which news reports contain sordid stories about people being attacked and even killed by dogs, including recently a 90-year old man on Staten Island, with attendant tales of dog owners’ irresponsibility contributing to these occurrences, the decision in Petrone v. Fernandez appropriately holds dog owners accountable for the damage that their pets cause.
If you or someone close to you has been attacked by a dog or injured in an accident, contact the personal injury lawyers at Levine & Slavit for their help. For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.