October 25, 2011 - The Court of Appeals in Smith v. Reilly has held that because the defendant's were able to establish that they had no knowledge of the subject dog's alleged propensity to interfere with traffic, that the case is dismissed. In this case, the plaintiff was injured while riding past the defendant's house on his bicycle and the defendant's dog ran out and knocked him off the bike. The defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Interestingly, there was testimony that the dog had previously escaped the defendant's control, barked, and ran towards the road three to five different times but, the court found this to be insufficient to establish a triable issue of material fact permitting the case to be submitted to a jury.
As many personal injury attorneys know, the law of this state has long been that the owner of a domestic animal who either knows or should have known of an animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of people or the property of others in a given situation, not necessarily a bite or scratch. The best way to establish this knowledge is through proof of prior acts of a similar type. In a dog bite case, simply showing that dog had been known to growl, snap or bare its teeth will likely suffice, however, beware of dog signs or the way that the owner restrains the dog can also be evidence of vicious propensities.
Where many attorneys and laypersons get confused is that they believe the act itself which causes injury must be vicious or dangerous. On the contrary, many animal related injuries occur when the animal is simply playing, excited or even scared. Our courts have long held that an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but does show a proclivity to act in a way that puts others at risk of harm can be found to have vicious propensities. For example, if a dog or other animal lunged at someone and knocked them down, proving that the dog lunges at people as they walk by the yard where the dog is kept is good evidence of propensities to injure in that particular way. To read the full opinion from the Court of Appeals, click here.
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