Brooks v. Parshall, 98398.

• Decision Date: 05 January 2006
• Docket Number: 98398.
• Citation: 806 N.Y.S.2d 796,25 A.D.3d 853,2006 NY Slip Op 00064
• Parties: TODD BROOKS, an Infant, by STEVEN BROOKS, His Father and Guardian, et al., Respondents, v. SHEILA PARSHALL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 853

806 N.Y.S.2d 796

2006 NY Slip Op 00064

TODD BROOKS, an Infant, by STEVEN BROOKS, His Father and Guardian, et al., Respondents, v. SHEILA PARSHALL et al., Appellants.

98398.

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 5, 2006.

Appeal from an order of the Supreme Court (Mulvey, J.), entered March 3, 2005 in Tompkins County, which denied defendants' motion for summary judgment dismissing the complaint.

Kane, J.

Defendants own a German Shepard dog named Caesar. Plaintiff Todd Brooks, then seven years old, and plaintiff Steven Brooks, his father, attended a gathering at defendants' home. According to Todd, the dog growled at him when they first arrived, but was friendly after that. Plaintiffs allege that the dog continually growled at one particular male guest that evening and bared his teeth at the man. According to plaintiffs, defendant William Parshall (hereinafter defendant) kept removing the dog from the living room because of this growling, and all of the guests commented regarding the dog's growling at the one man. Defendant denied hearing the dog growl, seeing the dog bare its teeth or hearing anyone talk about the dog growling. Todd played with the dog both before the party and the following morning without any fear or incident. The morning after the party, as plaintiffs were preparing to leave, Todd approached the dog from behind with his arms outstretched in an attempt to hug the dog goodbye. As Todd made contact with the dog it turned, lunged at him and bit him on the face, causing injuries which led to this lawsuit. Supreme Court denied defendants' motion for summary judgment, prompting them to appeal.

Because plaintiffs failed to show that Caesar had vicious propensities, we reverse. "Dog owners are strictly liable for personal injuries resulting from a dog bite if the owner knew or should have known that the animal had vicious propensities" (Morse v Colombo, 8 AD3d 808, 808 [2004] [citations omitted]). A prior bite is not necessary to prove vicious propensities; evidence that the dog "had been known to growl, snap or bare its teeth" might be enough to raise a question of fact, depending on the circumstances (see Collier v Zambito, 1 NY3d 444, 447 [2004]). While proof that an owner restrained the dog and the manner of restraint may be relevant (see id. at 447), the evidence here showed that the dog generally had free reign of the house, even when guests were present. Although defendant removed the dog from the living room to the hallway during the party, the dog was never confined in such a way as to prevent it from reentering the living room, and in fact the dog did so a number of times.

Defendants met their initial burden of establishing lack of knowledge of vicious propensities (see Rogers v Travis, 229 AD2d 879, 879 [1996]). Their deposition testimony established that, to their knowledge, Caesar had never bitten, snapped at, threatened, chased, lunged at or bared its teeth at anyone (compare Hagadorn-Garmely v Jones, 295 AD2d 801, 801 [2002]). The dog regularly interacted with children, guests and other...