Between 2003 and 2015, the average dog bite homeowners’ insurance claim almost doubled, largely due to the aggravating factors discussed below. Moreover, in 2015, New York had the third highest per-claim average in the country ($44,320).
So, juries are obviously willing to award significant damages in these cases, but the dog bite statutes in the Empire State are basically a Frankenstein’s monster of bits and pieces of laws from other jurisdictions, so a successful claim is very difficult to build.
Animal Attack Injuries
Compensation is often substantial because of the nature of these attacks and the nature of most victims.
Physical injury begins with the knockdown, because when a large dog lunges at a physically small victim who is not anticipating the attack, the knockdown often causes serious broken bones and head injuries. Then, at the risk of being too graphic, many animals both sink their teeth into their victims and then slash at the flesh, often causing catastrophic injuries.
Emotionally, many victims develop Post Traumatic Stress Disorder. They have flashbacks and are afraid to be around dogs, even if they know the animals are tame.
Many dog bite victims are young children. Some children approach some animals without fully considering all the risks involved, or appreciating those risks when they become apparent. Other children are attacked by family dogs that they know, either because the children make sudden moves which the dog interprets as threatening or for reasons that are not entirely understood.
The Law in New York
The Empire State is almost unique in the United States, as it is one of the only jurisdictions to use a modified one-bite rule.
Originally a common law idea that some states still use, the one-bite rule states that owners are not liable for dog bite injuries if the animal had never attacked anyone before. For victims to obtain both economic and noneconomic damages, the one-bite rule applies. But the law applies a strict liability standard for medical bills only.
Assume a dog bites a man in an owner’s backyard. Under the law, the owner is automatically responsible for the man’s medical bills and other economic damages, unless a defense applies. However, for the man to obtain compensation for noneconomic damages, such as pain and suffering, the man must prove that the owner knew the dog was dangerous, a legal concept known as scienter (“knowledge”).
The plaintiff must prove scienter by a preponderance of the evidence, which means “more likely than not.” Typically, the defendant insists that s/he did not know about the dog’s viciousness, and the plaintiff must use circumstantial evidence to build a case. Such evidence includes:
- ●Dog Breed: This method of proof is highly controversial and must be used judiciously, but the fact is that rottweilers, German shepherds, doberman pinchers, and other mastiff breeds account for over two-thirds of dog bites.
- ●Victim’s Injuries: If the plaintiff’s wounds were particularly severe, the jury may consider such severity as evidence of scienter.
- ●Animal’s Prior Conduct: In many cases, neighbors, veterinarians, and prior dog bite victims can testify about the animal’s behavior. Growling, snapping, and baring of teeth are all relevant here.
- ●Nature of Restraint: If the owner had the dog on a very short chain or had it wear a muzzle, such behavior may indicate that the owner knew the dog was dangerous.
Additionally, according to one case, any animal “that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities
Like all circumstantial evidence, all these instances are subject to interpretation and no one of them is dispositive.
Negligence Per Se
While New York dog bite victims cannot use simply negligence (lack of ordinary care) to recover damages, negligence per se, which involves the violation of a safety law, may be available.
If the owner violated a state law, the owner is automatically responsible for all damages. State law violations require a previous legal declaration that the animal was dangerous and a subsequent attack. If the owner violated a local law, like a leash law, that violation is evidence of negligence but not positive proof, so it is easier for plaintiffs to prove scienter.
Given the confusing nature of New York dog bite laws, it’s important to partner with an experienced dog bite injury attorney.