O'Brien v Amman

[*1] O'Brien v Amman 2008 NY Slip Op 52096(U) [21 Misc 3d 1118(A)] Decided on October 20, 2008 Supreme Court, Allegany County Euken, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2008
Supreme Court, Allegany County

Patricia O'Brien, Plaintiff,

against

Mark Amman and CAROL AMMAN, Defendants.



35042



Appearances of Counsel:

Ethan Lyle, Esq. for Plainitff

Jam P. Egger, Esq. for Defendants

James E. Euken, J.

The uncontroverted allegations before the court are that the defendants own three Labrador Retrievers, and that on August 2, 2007, in the Village of Andover, one of them bit the plaintiff. Plaintiff had just left her home for her early morning jog and was walking down Fairview Avenue. She then encountered the Defendant, Carol Amman, who was walking her three dogs on the opposite side of the street. For some reason, the three dogs pulled Mrs. Amman across the street and one of them, which one is not known, bit the plaintiff's right wrist. Plaintiff received medical treatment for her wounds and was then hospitalized when they became infected.

This case is now before the court on defendants' motion for summary judgment pursuant to section 3212 of the CPLR. In support of their motion, the court has read the affirmation of their attorney, Jan P. Egger, Esq., which incorporates by reference the depositions of the parties. In opposition to their motion , the court has read the affidavit of Ethan Lyle, Esq., which likewise incorporates those depositions, as well as photographs of the plaintiff's injury. Plaintiff has also submitted the affidavit of Mattea Orr, who resided in Andover at the time of plaintiff's injury.

The parties do not disagree about the law: dog owners are not liable for injuries caused by [*2]their dogs, unless the owners had prior knowledge of their vicious propensities; see, Collier v. Zambito, 1 NY3d 444 (2004); Bard v. Jahke, 6 NY3d 592 (2006). The oft-repeated aphorism "every dog gets a free bite" is not true. Though a dog may never have bitten anyone, still, if its owner knew it to be vicious, then even its first bite is not free. The reason is that it is the knowledge of the dog's propensity to bite, not just the proof of it, that gives rise to the owner's duty to take precautions, so that a foreseeable injury can be avoided.

In this case, the defendants claim that they are entitled to summary judgment for two reasons. First, based on the bill of particulars and depositions, defendants claim that plaintiff has no proof that the defendants knew, or should have known, that any of their three dogs had vicious propensities. Absent proof of such actual or constructive knowledge, defendants rightfully argue, they cannot be held liable. Second, defendants state that the plaintiff cannot prove which one of the defendants' three dogs bit her, and that in the absence of such particularized proof, plaintiff's case against them must fail.

The plaintiff has responded that the affidavit of Mattea Orr demonstrates that the defendants knew or should have known that their three dogs showed vicious propensities. Ms. Orr's affidavit states that she resided in the Village of Andover from August of 2006, to September of 2007, and that she personally was familiar with the defendants' three dogs, describing them as "chocolate- colored Labrador Retrievers." Ms. Orr further avers that "on many occasions" prior to August 2, 2007, the "defendants' dogs lunged at me inappropriately as they were walked past me by Mrs. Amman."

Motions for summary judgment require the court to read all the submitted pleadings and papers and determine whether they present triable issues of material fact. Finding such issues, as opposed to resolving them, is the key to this procedure; see, Sillman v. Twentieth Century Fox Film Corp. 3 NY2d 395 (1957). The evidence must be construed in a light most favorable to the non-moving party; see, David D. Siegel, New York Practice, Section 281 (Thomson/West 2005) citing Weiss v. Garfield, 21 .AD2d 156 (3RD Dept. 1964). Once the party moving for summary judgment has met its prima facie burden of showing an absence of issues of material fact, [Alvarez v. Prospect Hospital, 68 NY2d 320 (1986)], the non-moving party must then point to triable issues of material fact in order to stave off summary judgment.

Of course, the party opposing the motion need not concern herself with issues of fact that are not material. The test of materiality is whether the factual issue is one upon which liability depends, see, McKinney's Practice Commentaries, David D. Siegel, CPLR 3212.

On this basis of materiality, the court will dispose of the defendant's contention that the plaintiff is required to show which of the defendants' three dogs bit her. That all three dogs were owned by the defendants is uncontroverted.. That one of these three dogs bit the plaintiff is also uncontroverted. According to the affidavit of Mattea Orr, all three dogs, on many occasions, lunged at her inappropriately. If such "lunging inappropriately" demonstrates a dog's vicious propensities, then the defendants would be liable no matter which dog bit the plaintiff. And if the reverse were true, that "lunging inappropriately" does not show a dog's vicious propensities, then the defendants would not be liable, no matter which dog bit the plaintiff. Therefore, the issue of which one of the defendants' three dogs bit the plaintiff is not one upon which defendants' liability depends. Since this issue is not material, plaintiff need not point to a triable issue of that particular fact in order to [*3]defeat this part of defendants' motion for summary judgment.

The defendants' second argument - that a dog's having "lunged inappropriately" at a person is insufficient to raise an issue of fact about the dog's viciousness - - is more difficult to resolve.

Fortunately, the Court of Appeals has recently explored the issue of what kinds of canine behavior demonstrate viciousness, and may impute to the dog's owner actual or constructive knowledge of its vicious propensities. The Court held that the plaintiff need not show the dog had bitten someone else before. The proverbial "one free bite" is, according to the Court, a "misnomer." Bard at 599. Mere evidence that the dog has "been known to growl, snap or bare its teeth" may raise a triable issue of fact as to viciousness. Collier at 447.

Alternatively, a showing "that a dog [...] previously barked at people" has never been sufficient to create an issue of fact about the dog's viciousness. Id. Such canine

behavior is not "threatening or menacing," wrote the Court, just typical. "Barking and running around are what dogs do." Id.

"Lunging" would appear to fall within a lacuna on this continuum of canine behavior, perhaps less vicious than biting, snapping or growling but more threatening than barking. To "lunge" according to Webster, is "to thrust or propel (as a blow)." The word connotes aggression. As for the act itself, at least one appellate court has found that a dog's lunging, inter alia, was "sufficient to raise a question of fact" as to the dog's vicious propensities, see Sorel v. Iacobucci, 221 AD2d 852 (3rd Dept. 1995).Mattea Orr's allegation that the

defendants' dogs "lunged" at her "on many occasions" allows the inference that that the dogs' behavior was consistently and purposefully aggressive.

Viewing the issue in a light most favorable to the plaintiff, the court cannot hold, as a matter of law, that a dog's repeated lunging at another person is not "threatening or menacing" behavior that is indicative of vicious propensities.

Accepting as true Ms. Orr's allegation that the dogs lunged at her while being walked by Carol Amman, the court finds an issue of fact whether this defendant had actual or constructive knowledge of the dogs' vicious propensities. Therefore, the court must deny the defendants' motion as to Carol Amman.

On the other hand, no allegations of fact tend to show that Mark Amman had actual or constructive knowledge of the dogs' behavior, as described by Mattea Orr.The court is not permitted to impute such knowledge to Mark Amman solely because he is the husband of Carol Amman, see, LePore v. DiCarlo, 272 AD2d 878 (4th Dept. 2000); Phillips v. Coffee to Go, 269 AD2d 123 (1ST Dept. 2000); Greene ex rel. Greene v. Beckman, 286 AD2d 905 (4TH Dept. 2001).

Because plaintiff's submissions have not raised a triable issue of fact regarding Mark Amman's knowledge of the dogs' vicious propensities, the defendants' motion for summary judgment as to Mark Amman must be granted.

This Decision shall also constitute the Order of this Court.

It is so ORDERED

_____________________________

ENTERHon. James E. Euken

Acting Supreme Court Justice

Dated: October, 2008

Village of Belmont, New York