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Brooklyn judge declines expansion of liability in dog bite case

December 1, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Brooklyn Supreme Court Justice David I. Schmidt. Photo by Mario Belluomo
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A judge refused to expand the limits of liability for dog owners whose pets bit a woman. A higher court expanded the standard for liability in animal bite cases. However, the lower Brooklyn court didn’t apply that expanded standard to the current case.  

Maryann Cappellino was vacationing in Catskills when she was injured by three dogs who were chasing each other around the fields of the summer community locale.  According to court documents, two dogs — one owned by Nick Bedell and his wife and one owned by Adena Kalet and her husband — hit Cappellino from behind, causing her to fall.

Cappellino filed suit alleging that the dog owners were negligent in having their dogs play without a leash, failed to warn that the animals may hit Cappellino’s leg and did not give the pets commands not to collide with a human.

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New York law generally absolves a pet owner of any injuries caused by their animals. Brooklyn Supreme Court Justice David I. Schmidt, presiding over the Cappellino’s suit, explained the rationale for current rule.

“[The law] reflects the notion that domestic animals, in their normal condition, are not harmful,” Schmidt said.

 In order to be responsible for a pet’s actions, the animal must have “vicious propensity,” putting the owner on notice that it may attack again.

Cappellino pointed to a 2013 New York Court of Appeals ruling that expanded New York’s general rule and allowed injured plaintiffs to bypass the vicious propensity liability threshold. 

In the Hastings v. Sauve case, the higher court found an owner who was negligent in letting a cow roam off his property was also liable for the damages caused by the roaming cows. 

The Hastings court ruling allowed the plaintiffs to bypass the vicious propensity rule — no longer requiring proof that the cow had a history of violent acts — because to do otherwise “would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property,” Schmidt noted. The Brooklyn judge ruled that the rationale behind the Hastings ruling did not apply to the Cappellino fact pattern.

Schmidt further distinguished the Hastings case from Cappellino’s by noting the difference in animals involved. In Hastings, the animal at issue was a cow — a farm animal — while the domestic pets in Cappellino’s case were dogs.

“[D]ogs are generally benign and do not cause harm, even when allowed free range,” Schmidt wrote in his opinion.

Letting the dogs run free was not a negligent act, and it was not necessary for the owners to give their pets any commands.

“[The] defendants could not anticipate that their dogs would deviate from their normal behavior and collide with Maryann [Cappellino],” Schmidt said, and since “dogs generally avoid colliding with people of their own accord,” the owner defendants did not need to give any “special intervention” or warnings. 

“Accordingly, the court finds that as a matter of law, defendants did not have a duty to protect plaintiffs against the occurrences giving rise to the subject accident and were not negligent, in failing to issue commands to their dogs so as to avoid the alleged collision with Maryann or in failing to warn Maryann of an impending collision,” the judge ruled. 

Cappellino also attempted to find negligence because the dog owner violated the summer community rules by letting their dogs off the leash. Unfortunately, the court said, violations of the summer community’s rule is not sufficient to find negligence. The community’s internal “leash rule imposes a higher standard of care on the defendants than that imposed by law,” the Schmidt noted, “and as such, defendants’ violation of the rule may not be considered in determining whether defendants acted negligently.”

Cappellino was represented by Kostantinos Mallas, a partner in the Brooklyn firm Georgaklis & Mallas of Brooklyn, and will file a motion to reargue.

Manhattan firms White & McSpedon and Mintzer Sarowitz Zeris Lefva & Meyers appeared for the defendants.


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