Did Personal Injury Claim Have Legal Bite?

Kathleen Piedimonte sued Inez Alvarenga-Benitez as a result of having the leg of her jeans bitten and the back of her leg pressed upon or impacted by the paws of a twelve-and-a-half-pound Chihuahua named Perry, causing her to fall and break her leg.

Piedimonte’s neighbor, Danielle Jones, testified at her deposition that, prior to the incident, the dog Perry had wandered in the street unattended every day. He routinely growled and barked at people walking down the street, and she had seen Perry charge at people or cars more than ten times. On one occasion, Perry had come up behind her when she was weeding and growled, barked, and showed his teeth from two or three feet away. On that occasion, Jones testified that she stood up and told the dog to go home.

Another neighbor, Reginald Jones, husband of Danielle, testified at his deposition that, prior to the incident, he had witnessed an unattended Perry growling at his wife, and that Perry routinely growled and showed his teeth at him while Reginald was mowing the lawn.

Reginald Jones testified that, prior to the incident, he saw Perry in the street every day chasing people and cars, saw him nip his wife’s jeans once, and saw him nip at an elderly neighbor, though he did not make any contact. Aside from the incidents with his wife, Jones was not aware of other incidents where Perry had bared his teeth or physically hurt anyone. Jones further testified that he repeatedly asked Alvarenga to keep Perry inside because he kept running under cars.

At her deposition, Kathleen Piedimonte testified that, prior to the incident, she had led Perry to his home without making physical contact approximately twenty times due to her concern for his safety. During those times, Perry had not been aggressive toward her until one month prior to the incident, at which time he nipped the leg of her jeans, though the fabric was not damaged due to his “little teeth.” She further testified that Perry chased children and routinely nipped at her elderly neighbors who would shove him away, although she also testified that she had never seen him bare his teeth at any time other than the incident and the occasion when he nipped her pant leg one month prior. When the incident occurred, Piedimonte testified that Perry ran at her and nipped the back of her pants leg approximately three times. She felt the pressure of his paws on the back of her leg and she lost her balance and fell, causing her to break her leg.

At his deposition, Alvarenga testified that he had owned Perry since March 2015. The dog was small and Alvarenga did not believe him to be aggressive. He further testified that he knew that Perry sometimes got out of the house, but he did not believe that it happened often. At the time of the incident, he generally worked from 7:00 a.m. to 5:30 p.m., during which time his wife and children looked after Perry. They informed him that Perry would sometimes get loose and run around the neighborhood.

In addition to deposition transcripts, Piedimonte submitted a copy of a Vetco vaccination certificate for Perry, dated May 24, 2016. There was no affidavit by the veterinarian. On the vaccination certificate was a notation which stated, “unable to examine caution.” Alvarez’ counsel claimed that the Vetco record was incomplete, but did not annex a complete copy. And noted that Perry did receive his vaccination that day, as indicated on the certificate. They pointed out that Perry previously had a vaccination reaction, as indicated by a check box on the certificate, suggesting that the cautionary notation may have referred to the prior reaction. Alvaregna testified that he had taken Perry to Vetco approximately five times for vaccinations.

Piedimonte also submitted an opinion of an expert dog trainer, Asa W. Anderson, who reviewed deposition transcripts, vaccination certificates, and incident reports. It was Anderson’s opinion that Alvarenga knew or should have known that Perry was a “dangerous dog that possessed unsafe characteristics” and that he “violated the standard of care for a reasonable dangerous dog owner.” Alvarenga argued that Anderson’s report was rife with factual inaccuracies and that its conclusions were predicated upon a negligence theory which was not the New York legal standard.

Alvarenga’s counsel acknowledged that Perry routinely roamed the neighborhood but asserted that he was not aggressive. They cited Piedimonte’s deposition testimony with respect to her returning Perry to his home on numerous occasions. In that context, Piedimonte stated that she had not seen any sign of aggression when returning him home. However, Piedimonte also testified that, on one occasion approximately a month prior to the incident, Perry had nipped her pants leg when she returned him home, and that she was fearful of him afterwards.

Alvaregna’s counsel also cited deposition testimony of Frank Piedimonte, Danielle Jones, who is a veterinary technician, and Reginald Jones in support of the proposition that no one had expressed fear of Perry prior to the incident. Rather, they feared for the dog’s safety, citing deposition testimony in support of the proposition that Perry was frequently roaming the neighborhood without any actual aggressive incident. And expressed skepticism that Perry, a twelve and a half pound Chihuahua, could have caused Piedimonte’s fall, as she was 5’4″ tall and 180 pounds, in the manner alleged.

To recover in strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known. The sole means of recovery for damages is to produce evidence sufficient to establish strict liability; no recovery is available for ordinary negligence. An owner of a domestic animal who knows or should have known of its vicious propensities will be liable for damage caused by the animal’s exercise of such propensities.

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. Evidence of a dog’s vicious propensities may be proof of a prior attack, a tendency to growl, snap or bare its teeth, a habit of acting in ways that risk harm to others, the fact of being kept as a guard dog, or the occasions and manner in which the animal is restrained. Knowledge of an animal’s vicious propensities may also be discerned, by a jury, from the nature and result of the attack.

Piedimonte asserted entitlement to summary judgment because the dog exhibited vicious tendencies prior to the incident. Such tendencies were described as: routinely wandering the neighborhood and running in the street, defecating on neighbor’s lawns, chasing children, and on a few occasions, growling with his teeth showing. Piedimonte had returned the dog to his home on numerous occasions. On one such occasion, he nipped at her pant leg. She testified that when Alvarenga’s wife and daughter answered the door, she told them to bring the dog in because she did not want to hit it with her car. There was no indication that she mentioned the nip at her pant leg. Approximately one month later, the dog approached her while she was walking her own dogs and she turned away. The dog then came up behind her and nipped at her pant leg at least three times and put his paws on the back of her left leg.

Alvarenga countered that he had no knowledge of any alleged vicious propensities and that, in fact, Perry had no vicious propensities. He asserted that the neighbors allege that Perry was frequently in the street and on neighbor’s lawns (there was testimony that this occurred daily) but the only description of unwanted physical contact was the nip at Piedimonte’s jeans one month prior to the incident (which was not reported to Alvarenga). There was no testimony from Piedimonte’s elderly neighbors but it was averred by Piedimonte that they discouraged Perry’s advances by shooing at him with a pooper scooper and that he retreated. Alvarenga further argued that even if he had known about the prior nip to Piedimonte’s jeans, such an occurrence would not give him notice of the possibility of the event that occurred. He claimed entitlement to judgment as a matter of law based upon a lack of vicious propensity and a lack of actual or constructive notice of any such propensity.

Piedimonte made a motion for summary judgment, but the Court found that  Piedimonte failed to make a prima facie case of entitlement to summary judgment as a matter of law with respect to vicious propensity and knowledge. Perry frequently interacted with neighbors and the evidence presented was insufficient to establish that he acted in such manner that was likely to cause harm. Furthermore, there was insufficient evidence that Piedimonte’s injury was the result of a dog’s viciousness. Even if it were the case that the injury was the result of negligent supervision of Perry, New York Law imputes a strict liability standard, and it does not recognize an ordinary negligence cause of action with respect to a domestic dog. For that reason, Anderson’s report was accorded no weight. Piedimonte failed to establish that Perry had vicious propensities and that Alvarenga knew or should have known about such propensities. Furthermore, it was unclear that the injuries resulted from an action constituting the exercise of a vicious propensity. Piedimonte’s motion seeking summary judgment was denied.

Alvarenga made a cross-motion for summary judgment. Alvarenga made a prima facie case that Perry’s behaviors were essentially normal canine behaviors and not indicative of vicious propensities and he did not know of nor should he have known of Perry’s exhibiting any such propensities. Although Perry was frequently unsupervised, that fact was insufficient to impute strict liability. Upon presentation of a prima facie case of entitlement to summary judgment as a matter of law, the burden shifted to Piedimonte to raise a triable issue of fact—but she failed in that burden. As such, Alvarenga’s motion seeking summary judgment dismissing Piedimonte’s’ complaint was granted.