Did Dog Already Have Its “One Bite”: And Thus Was Vicious Propensity Known?

Dog bite case decisions regularly and routinely address the legal basis of liability: did (or did not) the owner know of the canine’s “vicious propensity”. But that is where the similarity begins and ends. As a recent case illustrates, each case is “fact-specific” and requires an examination of the dog’s “propensity” pedigree.

Mindy Gordon was the owner of a dog named Mystery. On September 30, 2018, Amisha Mulji was walking her dog named CJ around 8:45 in the evening. Mystery was also out and being handled by Melissa Torres. Mystery was leashed but was not muzzled. Mystery then attacked, scratching Mulji and biting CJ. Eventually, CJ died from its injuries. As a result, the New York City Department of Health entered into a settlement with Gordon setting forth the care and responsibilities of Mystery. The settlement stated "Mystery was involved in both the foregoing incident and a prior incident on December 11, 2015, in which Mystery attacked and caused physical injuries to persons and killed another dog."

In order to recover in strict liability in tort for damages caused by a dog bite, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known about the dog's vicious propensities. Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm.

Here, there was no question of fact about Gordon’s knowledge of Mystery's vicious propensities. None of the facts alleged in Mulji’s statement of facts were contradicted by Gordon other than a general statement that Mystery was not vicious and did not "attack" Mulji. Notably, Gordon did not dispute any of the alleged prior incidents (both in 2015); that Mystery and Mulji were involved in an incident; that Mystery was not muzzled; and the allegations that Mystery bit CJ, embedded his teeth in CJ and shook CJ like a rag doll.

In addition, the stipulation signed by Gordon explicitly acknowledged both that incident and a prior incident. Even assuming that Mystery had complied with the stipulation following the incident, that did not relieve her of liability. Gordon had knowledge of prior incidents and admitted to the incident with Mulji. Thus, Gordon was liable for the incident and partial summary judgment on the issue of liability against Gordon was granted.

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