Who Let the Dogs Out?


Dog bites, and other dog-related injuries, accounted for more than one-third of all homeowners’ insurance liability claim dollars paid out in 2015. Notably, New York had the third highest per-claim average in the country at $44,320. The laws regarding dog bites in New York are more complicated than most other states. Indeed, New York maintains a modified one-bite rule, which is rare in that it combines strict liability and negligence. While a dog owner is strictly liable for medical bills resulting from an unprovoked dog bite, if a victim is claiming other losses, including, among other things, disfigurement, lost income, pain and suffering, or emotional distress, the plaintiff must prove negligence. Accordingly, the plaintiff must demonstrate that a reasonable owner would have realized their dog was likely to bite and defendant would have taken precautions to protect the public, such as muzzling the dog while walking it and keeping it confined within an area from which it could not escape.

In Russell v Hunt and Garrett (2018 NY Slip Op 00750) (Feb. 2, 2018), the Appellate Division, Fourth Department, was faced with such a case. There, the plaintiff and defendant, Dorien Garrett (“Garrett”) resided in neighboring apartments. On August 31, 2014, Garrett was dog-sitting Lily, a three-legged pit bull owned by defendant Honri V. Hunt, who was out of town. While Garrett and Lily were in the fenced-in backyard, plaintiff came into the yard with her dog, Chloe. The two dogs lunged at each other, and plaintiff and Garrett separated the dogs. According to plaintiff, Lily attempted to bite Chloe during the initial confrontation. After the dogs were separated, Garrett was unable to restrain Lily, and Lily again attacked Chloe. Lily bit plaintiff on the arm while the dogs were being separated for the second time.

Plaintiff commenced a lawsuit seeking damages for injuries that she sustained from the dog bite, asserting causes of action for negligence and strict liability. The lower court granted plaintiff’s motion for partial summary judgment on liability, and denied the defendants’ cross-motion for summary judgment dismissing the amended complaint. On appeal, the Appellate Court agreed with defendants that the lower court erred in its decision.

The Appellate Court concluded that with respect to the issue of liability, defendants established, as a matter of law, that defendants lacked actual or constructive knowledge that Lily had any vicious propensities. See Doerr v Goldsmith, 25 NY3d 1114 (2015); Collier v Zambito, 1 NY3d 444 (2004). The court reasoned that the confrontation between the dogs was only one event, rather than two separate incidents as found by the lower court. The court also relied on the fact that only minutes passed between the two confrontations, and the defendants did not acquire actual or constructive notice of any vicious propensities based on the initial confrontation. Finally, the court also found that the defendants’ motion for summary judgment should have been granted because in New York, “[c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence.’” Blake v County of Wyoming, 147 AD3d 1365, 1367 (4th Dep’t 2017).