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What Is Vicious Propensity? Establishing Negligence in Dog Bite Claims.

growling and barking dog

Since the beginning of the COVID-19 pandemic, more and more people are becoming pet owners, with an ASPCA study indicating 1 in 5 households have adopted an animal during that time. With more dog-human interactions occurring, there is a drastic increase in dog-related injury cases. If you or someone you love has been bitten by a dog, you might be wondering if you have a viable personal injury case.

Unlike other personal injury cases, where liability and negligence need to be established, a person must instead show that the dog in question showcased vicious propensities and the owner knew or should have known this. Vicious propensity is a broad term that refers to an act that might endanger the safety of a person in a given situation. This encompasses more than just biting and can be any type of behavior that may give rise to harm and displays threat or menace.

New York does not have a “one-bite rule”. This means that a dog can be found to have vicious propensities even if the animal has never bitten anyone (including other animals) before—making other indicators of vicious propensity particularly important.

How to Prove Vicious Propensity

Vicious propensity does not include “normal” canine behavior, so activities like running around, jumping, or getting excited around food would not apply. Nor is it relevant to bring up the breed of the animal during these cases. To prove vicious propensity, it can be helpful to:

  • Show evidence that the attack was of a vicious nature.
  • Obtain statements from anyone who either witnessed the attack or has had previous interactions with the animal.
  • Seek veterinary records or obtain testimony from the dog’s veterinarian or vet tech subpoenaed for a deposition.
  • Gather evidence of prior aggressive, protective, or territorial behavior.
  • Provide an expert evaluation of the animal during discovery.

Certain factors can prove to be insufficient evidence for vicious propensity and will need to either be supported by one or more of the factors above or handled on a case-by-case basis. These include the type of restraint/chaining used on the animal, violation of local leash laws, or the presence of a “Beware of Dog” sign on the property.

Determining Who Is at Fault?

After the 2015 case Doerr v. Goldsmith, 25 N.Y.3d 1114, vicious propensity is the only way to hold an animal’s owner liable for injuries caused—with only a few exceptions. However, there are incidents when the owner is not present during a dog attack, and in those instances, non-owner liability can come into play.

For example, if a landlord knew of the dog’s presence, had the ability to remove the animal, and knew or should have known about the dog’s vicious propensities, they can be held liable. However, a recent Court of Appeals’ decision in 2020 has broadened options for non-owner liability. Hewitt v. Palmer Vet Clinic, 35 N.Y.3d 541 permitted the Plaintiff to make a claim of negligence toward a veterinary clinic without evidence of vicious propensity.

In other cases, such as T.B. v. Town of Hempstead Animal Shelter, property owners with specialized knowledge of animal behavior can be charged with negligence. These rulings might also potentially open up individuals with specialized knowledge of animal behavior, such as dog trainers, to liability, regardless of owning the property, and even those who do not have specialized knowledge, like a family member of the animal’s owner.

Another possibility for liability is comparative fault. A Plaintiff may have partial fault placed against them if there are signs that they provoked the attack or knew about the animal’s propensity but interacted with it anyway. This still applies in vicious propensity cases, and in many ways might strengthen the argument for vicious propensity—meaning that knowledge of the propensity might override any fault on the side of the Plaintiff. Because of the complexities surrounding dog-related injury cases, it is important to have a knowledgeable and aggressive legal team on your side to help you navigate the process.

A Legal Team on Your Side for Dog Bite Cases

At Hacker Murphy, our personal injury attorneys have extensive experience in handling dog bite cases throughout Upstate New York. We can assist with determining whether you have a case and what type of compensation you might be entitled to.

If you or a loved one has recently experienced a dog bite, call our office today at (518) 284-3183 or fill out our online contact form. We start the process with a complementary consultation.