Articles Posted in Dog Bite Injuries

It’s been quite a while since this Central New York Injury Law blogger has posted anything.  In fact, almost a year.  It was a busy year and blogging gave way to serving our clients’ pressing needs, always our number 1 priority.  But to quote Arnold Schwarzenegger (sort of), “we’re back!”  And with lots of news:

News Item Number 1:Michaels & Smolak” is no longer (sigh).  Jan Smolak, one of our four lawyers, left the firm to go join his lawyer-wife’s practice, Perotto Law, in Rochester, New York. We wish Jan luck!

News Item Number 2:  The other three “Michaels & Smolak” lawyers, Lee Michaels, Mike Bersani, and Dave Kalabanka. have remained right here in the same office in Auburn New York, but  are now operating under the name “Michaels Bersani Kalabanka, P.C.”.  Yeah, I know, that’s quite a mouthful, which is why we prefer to call ourselves “MBK Law”.  Our new website is

vicious-dog-200x300Dog bite victims’ lawyers (like me) have noticed a disturbing trend in recent years: Severe dog bite injuries are growing while insurance coverage for them is shrinking.  Why?  Two intersecting trends are the root cause:

Trend number 1:  Dogs are getting meaner, and meaner. The percentage of new dogs that are pit-bull types (included mixes) has been growing. Pit bulls are now the fifth most popular dog to own, and that number is growing.  They account for about 20% of dogs in the USA. The meaner dogs get, the more likely it is for you or your loved ones to become victims.

Trend number 2:  More and more homeowner insurance companies are sneaking “dog-attack/bite” exclusions in their policies.  Some of the carriers simply refuse to provide any coverage at all for dog-attack injuries.  Others exclude only certain breeds – those considered most aggressive – including bit bulls, German shepherds and Doberman pinschers. The dog owner usually discovers the exclusion only after their dog has done the deed.

Every once in a while, my news feed delivers to me some horrendous story about a lawsuit involving a vicious attack by someone’s exotic pet animal such as a monkey or wolf or bear.  Yes, some folks don’t find owning a standard run-of-the-mill dog or cat satisfying enough.  No sir, they want to take a “walk on the wild side”.  They might get a pet wolf, boa, miniature crocodile – you name it.

Since this is a legal blog, and a New York one, I am going to speak about what you have to prove in New York if you are attacked by a pet animal such as a bear or wolf versus the proof you need if you are attacked by a traditional pet – like a dog.  There’s a legal difference!

Let me briefly digress.  We had a case several years ago where our client accepted an invitation to visit a friend who was soon to be the lucky recipient of lawsuit papers signed by yours truly.  What did he do to earn such an honor?  He harbored his own private collection of caged bears and other exotic animals, a miniature zoo. Just a nice little hobby. He loved showing off his trophy beasts to friends and neighbors, and that’s what he did to our client.  Unfortunately, he failed to warn our client about the length of the bears’ arms.  Our client inadvertently wandered too close to a cage, and the bear got him in – well – a bear hug.  I’ll spare you the gruesome details of what happened next.

Today I am blogging about a recent development in New York dog bite / attack injury law.  By way of background, New York is one of only a few states where, to win your case, you have to prove the dog had a prior bite or attack or otherwise displayed “vicious propensities” and that the owner knew about these propensities.  Otherwise, the owner of the dog is off the hook, even if the dog viciously attacks you.

This rule “bites”.  The problem with this rule is that it doesn’t allow victims to sue the owner of the dog for the owner’s negligence.  The owner might have a perfectly good dog with no viscous propensities, but the owner might nevertheless – through plain stupidity or negligence — cause even the Mother-Theresa-of-dogs to hurt people.

For example, in Doerr v. Goldsmith, a dog owner signaled for his nice, obedient doggy to come to him.  Bad idea.  The dog was on the opposite side of a very busy street.  The tail-wagging, happy-go-lucky pooch then bolted across the busy street to his loving owner, causing an innocent bicyclist to be thrown from his bike.

I have a love/hate relationship with dogs. I love my dog, but I hate dogs who chase me on my bike or who snarl at me on my runs. When I go bike riding out on the country roads near Geneva, NY where I live, I even carry a small pepper spray canister to defend myself from man’s best friend.

Yes, I protect myself from “unleashed” dogs.  But unfortunately, New York State negligence law does not.  Believe me.  As a NY personal injury lawyer who handles dog bite / attack cases, I know first hand!

The problem in New York – unlike in other states – is that to hold a dog owner liable for injuries, you need to show the owner knew or should have known the dog had “vicious propensities”. If you do, the owner is “strictly” liable to you for your injuries.  That’s all well and good where a dog with a history of biting or attacking bites you, but not much else.

I just love it when I’m right!

Last year I blogged about the Court of Appeals (highest court in NY State) case of Hastings v Suave where the Court made an exception to the general rule that, if an animal harms someone, the owner can be held liable only if he knew or should have known that the animal had “vicious propensities”. The issue in that case was whether a farmer could be held liable for negligently allowing his cow to stray out into the road and cause an accident. Obviously cows are not “vicious”, so under the general rule the farmer could not be held liable for the harm.

The wise Court saw the need for an exception to the rule, and held that “a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept even when the animal did not display ‘vicious propensities'”.

You’re driving along a country highway, rounding a curve, when —- bam — you run into a cow. Yes, a cow! Why? Farmer Brown left a gaping hole in his fencing, and the big dumb animal wandered out. Can you sue the farmer for this obvious negligence?

Until just the other day, the answer was, surprisingly, “no”, at least not in New York. The rule in New York (which I blogged about last year) was that you could sue the owner of an animal which harms you ONLY if the owner knew or should have known the animal had “VICIOUS PROPENSITIES“.

This “vicious propensities” rule grew out of dog bite case law. The courts reasoned that it wouldn’t be fair to hold a dog owner liable for his dog’s first bite unless he knew his dog was a problem. This was sometimes referred to – though not very accurately – as the “one free bite rule”.

I just got a lucky break on a Geneva NY dog bite case. I’ll tell you about it in a minute. But first let me tell you about an article I just read about animal attack cases in the New York Law Journal, which concluded that “New York is perhaps the toughest jurisdiction in the nation to be in” for dog bite (or any animal attack) cases. Why?

There is kind of a paradox in New York. On the one hand, New York is a “strict liability” state for animal attack (including dog bite) cases. That means that you don’t even have to prove that the animal’s owner was “negligent” or careless. If the dog bit you, or the animal attacked you, and you are injured, the owner is strictly (automatically) liable, BUT ONLY IF _______ (I’ll fill in the blank later). In other words, even if the owner was very careful in, for example, tying up the dog, but some neighborhood kids let him lose as a kind of gag, and the dog then bites someone, the owner is still liable BUT ONLY IF _____. The law is generous to animal attack or dog bit victims, BUT ONLY IF _____.

OK, enough already. Only if what? Only if the owner “KNEW OR SHOULD HAVE KNOWN OF THE ANIMAL’S VICIOUS PROPENSITIES“.

Police say that two pit bulls chased and bit a mail deliverer today in Schenectady. But that’s not big news. Dogs attack postal workers somewhere everyday. What gives this story more “bite” is that three pit bulls attached a woman in the same City, Schenectady, earlier in the week. Pit bulls are clearly “in the pits” in Schenectady these days.

For the sake of both these victims of dog attacks, I hope the dog owners’ homeowners’ insurance policies do not contain the “dog exclusion” I blogged about the other day. Some insurance policies exclude coverage only for aggressive breeds such as pit bulls, others exclude coverage for all dogs, but better homeowners’ policies don’t exclude dogs at all.

Take it from me, a New York dog bite lawyer. Dog exclusions are evil! They leave dog bite victims with no insurance money to compensate them for their medical expenses, lost wages and pain and suffering. The dog bite victim then has only two options: walk away and lick his or her wounds without the benefit of any compensation, or else sue the dog owner for compensation from his or her personal assets.

Homeowners’ Insurance carriers are in the dog house, at least in my book. Here’s why: In the past few years, in greater and greater numbers, homeowners’ insurance carriers are, unbeknownst to their insureds, slipping “dog exclusions” into their insurance policies. They exclude coverage for any injury caused by dogs, including, of course, dog bites.

Me and my New York dog bite lawyer brethren first started seeing dog bite exclusions pop up in homeowners’ insurance policies a few years ago. At first, they excluded only certain breeds of dogs, those deemed especially aggressive such as pit bulls. But more and more we are seeing outright exclusions for all dogs, without regard to the breed. In other words, Insurance companies are becoming equal opportunity dog excluders.

Why is this problem? Actually, it’s a dog-gone rip off. You see, one-third of all injury claims brought against homeowners are for dog bites. But when they exclude coverage for dog bites, they don’t offer you a 1/3 discount. In fact, they give you no discount at all. So your insurance carrier is charging you the same amount for 2/3 of the coverage. Quite a good deal for them. Hey — it’s a dog-eat-dog world I guess.

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