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Collier v. Zambito - 1 N.Y.3d 444, 775 N.Y.S.2d 205, 807 N.E.2d 254 (2004)

Rule:

With respect to the liability of a domestic animal owner such as a dog, knowledge of vicious propensities may, of course, be established by proof of prior acts of a similar kind of which the owner had notice. In addition, a triable issue of fact as to knowledge of a dog's vicious propensities might be raised--even in the absence of proof that the dog had actually bitten someone--by evidence that it had been known to growl, snap, or bare its teeth. Also potentially relevant is whether the owner chooses to restrain the dog, and the manner in which the dog is restrained. The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog's vicious propensities.

Facts:

Defendants Charles and Mary Zambito own Cecil, a beagle-collie-rottweiler mixed breed dog that they keep as a family pet. Defendants customarily confined Cecil to the kitchen area, behind a gate, when they were away from home and when visitors came because he would bark. One night, 12-year-old Matthew Collier was a guest of the defendants' son, Daniel. He had been to the defendants' home on several previous occasions, and on that evening had been upstairs with Daniel and several other children. When Matthew came downstairs to use the bathroom, the dog began to bark. Mary Zambito placed Cecil on a leash and, when Matthew emerged from the bathroom, invited him to approach to allow the dog to smell him, as the dog knew him from prior visits. As the boy approached, Cecil lunged and bit Matthew's face. There is no dispute that the dog's attack was unprovoked. The parties testified at their examinations before trial that, to their knowledge, Cecil had never previously threatened or bitten anyone. The trial court had denied the owners' motion for summary judgment to dismiss the action, for failure to state a claim upon which relief could be granted, and the parents' motion for summary judgment on the issue of liability. The Appellate Division (New York), in reversing and granting summary judgment to the owners, found the parents failed to raise an issue of fact as to whether the owners were aware or should have been aware of their dog's alleged vicious propensities.

Issue:

Was there a genuine issue of fact as to whether the owners had the requisite knowledge that the dog had vicious propensities?

Answer:

No

Conclusion:

The highest court agreed with appellate division that there was not a genuine issue of fact as to whether the owners had the requisite knowledge that the dog had vicious propensities. Those propensities could not be inferred because the owners kept the dog confined in the kitchen because the dog barked. Nothing in New York case law suggested that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people was sufficient to raise a triable issue of fact as to whether it had vicious propensities. The dog's actions--barking and running around--were consistent with normal canine behavior.

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