Trial Required to Determine If Landlord's Dog Was Vicious

A visitor to the owner's property sued the owner for damages due to injuries sustained when the owner's dog attacked him and, while retreating from the dog, he fell down the front steps of the owner's house. The visitor was canvassing for signatures on a political petition in cold weather while wearing a winter coat and asked to see the owner's tenant to obtain her signature. When the tenant opened the door, the owner's dog ran out and attacked the visitor. The owner asked the court to dismiss the case, claiming that he didn't know the dog had vicious propensities and that the visitor's claims of premises liability relating to maintenance of the front steps was speculative. The court ruled for the owner and dismissed these claims without a trial. The visitor appealed, and the court reopened one of his claims.

The owner failed to prove that he neither knew nor should have known that the dog was vicious. While the visitor was at his door, the dog came running and barking, pushed the door open, lunged at the visitor, and bit his leg, then bit him again after the visitor was knocked to the ground and at the bottom of the front steps. The visitor testified in pre-trial questioning that, at the time, the owner said, "the dog doesn't like people who wear coats," and that the dog was "protective." These statements, the severity of the injuries, and proof of the vicious nature of the unprovoked attack, were sufficient to raise fact questions that required a trial.  As to the second claim, the visitor's pre-trial testimony was inconclusive as to whether the condition of the steps was a cause of his fall. 

Zicari v. Buckley: Index No. 1038 CA 22-00210, 2023 NY Slip Op 00788 (App. Div. 4th Dept.; 2/10/23; Whalen, PJ, Peradotto [dissenting], Bannister, Montour [dissenting], Ogden, JJ)