Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

Exercise 31

FACTS The plaintiff, a mail carrier, sustained injuries when he allegedly was bitten and attacked by a dog on the front steps of the defendants' house as he attempted to deliver the mail. The plaintiff, who crossed over the defendants' lawn and driveway from the house next door, and whose view of the dog was obstructed by a bush, did not see the dog or hear it bark until he opened the lid of the mailbox and was bitten. The plaintiff brought an action to recover damages for personal injuries. The Supreme Court, Nassau County, granted the defendants' motion for summary judgment dismissing the complaint. The plaintiff appealed.
DECISION Summary judgment is affirmed.
OPINION Per curiam. To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities [citations]. ''Vicious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation''' [citations].
Here, the defendants established their prima facie entitlement to judgment as a matter of law by presenting evidence that the dog had never bitten, jumped, or growled at anyone prior to the incident in question, nor had the dog exhibited any other aggressive or vicious behavior [citations]. In opposition, the plaintiff failed to come forward with any proof in evidentiary form that the dog had ever previously bitten anyone or exhibited any vicious propensities. Furthermore, the presence of a ''Beware of Dog'' sign on the premises, the breed of the dog, and the owner's testimony that the dog was always on a leash were insufficient to raise a triable issue of fact as to the dog's vicious propensities in the absence of any evidence that prior to this incident the dog exhibited any fierce or hostile tendencies [citations].
INTERPRETATION Owners and possessors of domestic animals are subject to strict liability if they knew, or had reason to know, of the animal's vicious propensities.
CRITICAL THINKING QUESTION Is the burden on the plaintiff to establish the animal's prior vicious propensities too difficult to sustain?