Our client, a 10-year-old boy, was viciously attacked by a dog at the home of a classmate. The classmate’s mother brought the child and her son to their home to work on a school project. When they arrived, the dog was chained outside the house. This was the first time our client had been to the residence. While the children were working in the basement, the mother descended the basement stairs holding the dog by the collar. Without warning, she released her hold on the dog. The animal immediately approached our client, who stood in place nervous and scared. Without any provocation, the dog bit the child on the back of his left thigh, knocked him to the ground, then bit the back of his right thigh. The child, who had to kick the dog to get free, sustained puncture wounds, which resulted in permanent scars.

Unfortunately, this child was not the dog’s first victim. It was determined after the incident that the dog’s owners were made aware that their pet had attacked a young girl who had been riding her bicycle near the dog’s residence prior to the dog biting our client. The girl’s mother advised the dog’s owner of the incident, but he laughed it off.

Pet owners who know, or should know, of their dog’s vicious propensities are strictly liable for the harm the dog causes as a result of those propensities. Knowledge of those vicious propensities may be established by proof of prior acts of a similar kind of which the owners had notice.

We brought action against the owners of the dog that bit our client, alleging that they were liable for personal injuries based upon strict liability and common law negligence. The owners filed a motion for summary judgment seeking to have the case dismissed. In response to the dog owner’s motion, we submitted an affidavit from the mother of the young girl who had been attacked while riding her bicycle. She recounted how she confronted the dog’s owner about the unprovoked attack on her child. The mother described the owner’s response as laughing her off and scolding her that her child should not have been near his dog. The lower court found for the dog’s owners, viewing the affidavit as hearsay, rather than a first-hand report. Far from deterred, we appealed.

On appeal, we argued that the above encounter made it clear that the young girl’s mother had placed the dog’s owner on notice of a vicious attack by his dog. The dog’s owners did not dispute this notice in their reply. We argued that the failure to dispute this allegation should be deemed an admission of it and that this notice was sufficient to raise a triable issue as to whether the dog’s owners should have known about its vicious propensities.

The Supreme Court, Appellate Division, Second Department, New York, found that “genuine issues of material fact existed as to whether owners had prior knowledge of the dog’s alleged vicious propensities and the trial was allowed to move forward.

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