Practice point: The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff's, that they were not aware, nor should they have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior.
The plaintiff failed to raise a triable issue of fact in
opposition. The court could not consider the affidavit of the
plaintiff's father, a nonparty witness, as he was not properly disclosed
as a notice witness in the plaintiff's discovery responses.
Student note: To recover on a theory of strict liability in tort for a dog bite or
attack, a plaintiff must prove that the dog had vicious propensities and
that the dog's owner knew or should have known of such
propensities. Relevant evidence includes
a prior attack, the dog's tendency to growl, 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
Case: Henry v. Higgins, NY Slip Op 03489 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: A bus-bicycle fatality.