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Michael Serpico Authors, "Once Bitten, Twice Liable" for LaborPress Magazine

Aug 25, 2016

According to the Centers for Disease Control and Prevention (CDC), approximately 4.5 million people in the United States are bitten by dogs each year (and, in case you were wondering, in 2015, 6,549 were US Postal employees.)

With such staggering numbers, it is no wonder that insurance claims in the area of dog bites are as prevalent as they are. In fact, the Insurance Information Institute states that attacks by dogs make up more than a third of all homeowner insurance liability claims. However, suing the owner of a dog that bit you is not as straight forward as one would think.

The law in this area can be confusing, especially since New York is considered a “mixed” state when it comes to owner liability for dog bites. New York combines statutory strict liability for medical expenses with the common law “one-bite” rule for all other damages.

Statutory Strict Liability

Pursuant to New York Agriculture and Markets Law § 123(10), owners of a “dangerous dog” are strictly liable for medical costs resulting from the dog bite. In other words, the dog owner is automatically liable for medical costs without a finding of fault.

“One-Bite Rule”

The term “dangerous dog” is defined as any dog which (1) without justification, attacks a person and causes physical injury or death, or (2) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death.

It must be noted here that the courts have held that the term “dangerous dog” does not require that a dog was previously found to be a “dangerous dog” as a condition to holding the owner strictly liable for medical costs.

This is of great significance because in order to obtain any other damages outside of medical costs (i.e., pain and suffering), a dog bite victim must first prove that the owner knew or should have known of the dog’s “vicious propensities.” This is also commonly known as the “one-bite” rule, as in, every dog gets one free bite before its owner becomes responsible. However, this is a bit of a misnomer as more than just previous bites count as vicious propensities.

According to New York case law, “[k]nowledge of vicious propensities may be established by proof of an animal’s attacks of a similar kind of which the owner had notice, or by an animal’s prior behavior that, while not necessarily considered dangerous or ferocious, nevertheless reflects a proclivity to place others at risk of harm.”

Other Factors

In addition to a previous attack, factors to be considered in determining whether an owner has knowledge of a dog’s vicious propensities include (1) the dog’s tendency to growl, snap or bare its teeth, (2) the manner of the dog’s restraint, (3) whether the animal is kept as a guard dog, and (4) a proclivity to act in a way that puts others at risk of harm.”

In sum, to recover any damages other than medical expenses, there must be some evidence that the owner knew or should have known about the dog’s prior threatening behavior. Without such evidence, your dog bite will simply satisfy the vicious propensities requirement for the dog’s next victim.