Cyclist Injured in Central Park When Hit by Dog Playing Fetch

Was Canine’s Owner Liable for Negligence or Otherwise?

Scenario: Cyclist riding in Central Park. Owner of off-leash dog playing fetch. Dog chases tennis ball into the road. Bike rider is injured in fall. Litigation ensues.

On April 25, 2019, Joan Decollibus was riding her bicycle through Central Park when a dog named Lola, owned by Barry Schimmel, ran into the bicycle lane and caused Decollibus to fall off her bike. On October 18, 2019, Decollibus sued Schimmel alleging negligence, strict liability, and violations of the City of New York Department of Parks and Recreation Leash Law. After the completion of depositions, Schimmel moved for summary judgment dismissing Decollibus’ complaint.

At the time of the accident, Decollibus was riding her bicycle. Lola, who was off her leash, ran into the roadway and collided with the bicycle causing Decollibus to fall over. Lola never growled, barked or bared her teeth at Decollobus.

Schimmel owned Lola, a Spanish water dog. Before the accident, Schimmel and Lola, off-leash, played fetch without any incident for approximately twenty minutes. Immediately before the accident occurred, Schimmel threw the ball toward Lola and the ball rolled toward the roadway. Schimmel and Lola both ran after the ball. While Lola was in the roadway retrieving the ball, Decollibus swerved to avoid Lola and fell. According to Schimmel, prior to the accident, Lola had never run into the roadway or chased squirrels.

Eric Alber, "certified master dog trainer and canine behavior specialist," stated that "Lola... exhibited what is known as a ‘high prey drive,’ meaning that Lola would chase and pursue objects [and] would not alter her behavior based on the environment." Albert did not examine Lola.

Schimmel argued that the action should be dismissed because New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a dog. Decollibus’ strict liability claim failed where Lola's actions constituted normal canine behavior. Lola never acted in a vicious manner and there was no evidence that Schimmel knew or had reason to know of any prior vicious propensities.

In opposition, Decollibus argued that Lola "chase[d] tennis balls" and, therefore, had a propensity to interfere in traffic.

Schimmel replied that "Lola ran after a stray ball during a game of fetch which inadvertently rolled into the roadway and [he] could not recall whether he commanded Lola to stop."

The argument by Decollibus that Schimmel unlawfully let his dog off leash was meritless since it was well settled that a cause of action for ordinary negligence did not lie against the owner of a dog that caused injury. Even where a plaintiff presents some evidence of negligence—e.g., violation of a local leash law—the evidence is irrelevant because negligence is not a basis for imposing liability.

The sole viable claim against the owner of a dog that causes injury is one for strict liability. To recover in strict liability 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 of the dog's vicious propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others, and a dog's habit of chasing vehicles or otherwise interfering with traffic could be a vicious propensity. In the absence of proof that the dog had a history of chasing bicycles or vehicles or otherwise interfering with traffic, there was no basis for the imposition of strict liability.

Here, Schimmel made a prima facie showing of entitlement to judgment as a matter of law by demonstrating, through his deposition testimony, that he neither knew, nor should have known, that Lola had any tendency to chase bikers or otherwise interfere with traffic or was vicious in any other way. In opposition, Decollibus failed to raise any triable issues of fact. Alber's affidavit was insufficient to raise a triable issue of fact since it was conclusory- and, further, his opinion that Lola had high prey drive was refuted by Schimmel’s testimony that Lola did not chase squirrels.

Late last month, the Appellate Division unanimously affirmed the decision of Supreme Court dismissing the complaint.

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