Recently, a Staten Island judge found that the City had no “special duty” to protect a dog bite victim and held the City not liable for damages to the family of a 90-year-old man who died as a result of injuries by two dogs.
Recently, Staten Island Supreme Court Judge Thomas Aliotta dismissed a $7 million lawsuit against the City filed by the family of a 90-year-old man who was killed by two dogs in Port Richmond. In doing so, he ruled that the City had no “special duty” to protect Henry Piotrowski from the dogs that eventually killed him, even though several 911 calls were made about the unleashed dogs, and that “Absent a special relationship, a municipality may not be held liable for injuries caused by a breach of a duty owed to the public at large, e.g., to provide police protection.”
To the public eye, this may seem unjust; however, an analysis reveals and brings an understanding to the end result. Putting aside whether any Notice of Claim issues existed (a discussion for another day as it does not seem to have impacted on the decision), a strict interpretation of the New York statutory law supports the decision.
New York State has addressed the issue of “dangerous dogs,” specifically in N.Y. AGM Law Section 121: Dangerous Dogs, which provides definitions and guidance for how the courts of New York State will address and provide remedy for such injuries if a dog is, in fact, deemed dangerous after. Case law has also provided guidance and supports the conclusion that injuries caused by domestic animals may only proceed under a theory of strict liability, with actual scienter being key:
[T]he plaintiff must establish (i) the dog had vicious propensities and (ii) that the owner knew or should have known that the dog had vicious propensities.
Galgano v. Town of North Hempstead, 2007 WL 1704612 (N.Y.A.D. 2 Dept.) “Evidence tending to demonstrate this might include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm.” There is no room for speculation. The New York State Bar Association also provides case discussions, providing that the Court of Appeals has also held that strict liability is the only way liability can be found in the case of claimed vicious domestic animals.
Notably, returning to what happened in the Staten Island case, the Piotrowski family brought suit against the City, the NYPD and the City Health Department, not the owner of the dogs! As such, and without demonstrating that a ‘special relationship’ existed so as to attach a duty to the municipal defendants, the court was compelled to dismiss the case, no matter how tragic the facts.
Hypothetically, what if someone had made a complaint to the NYPD about the dogs’ aggressive propensities? Would this have been enough to impose a duty to protect Mr. Piotrowski? It does not appear that lodging a complaint merely about a dog’s aggressive nature, without evidence of a vicious propensity to cause injury to person is sufficient. An article by Frank Donnelly for the Staten Island Advance noted that “on at least two occasions, [the police] had investigated complaints about the dogs and knew they had chewed through a corner of the fence in Piotrowski’s back yard . . . .” There is no indication of any complaints being lodged of the dogs attacking any individuals.
If this is not enough, what is required to create the “special relationship” that would impose a “special duty” within the statutory law of New York?
A] N.Y. AGM Law Section 121, Subsection 1:
Any person who witnesses an attack or threatened attack . . . may make a complaint of an attack or threatened attack upon a person . . . to a dog control officer or police officer of the appropriate municipality. Such officer shall immediately inform the complainant of his right to commence a proceeding as provided in subdivision two of this section and, if there is reason to believe the dog is a dangerous dog, the officer shall forthwith commence such proceeding himself (emphasis added).
Language within this section leaves to the discretion of the officer the duty to act, and thus does not impose a mandatory special duty. Conversely, only in situations where an officer “has reason to believe” that a dog is dangerous “shall” he/she act by commencement of a proceedings. Accordingly, a failure to act, assuming no obvious evidence that would militate action on the part of the officer, does not give rise to potential liability against an officer (and/or his employer, the appropriate municipality and/or agency) for the damages in relation to the injuries therewith.
Further, the statute continues as follows:
B] N.Y. AGM Law Section 121, Subsection 2:
. . . [A]ny dog control officer or police officer as provided in subdivision one of this section shall, make complaint under oath or affirmation to any municipal judge or justice of such attack or threatened attack. Thereupon, the judge or justice shall immediately determine if there is probable cause to believe the dog is a dangerous dog and, if so, shall issue an order to any dog control officer, peace officer, acting pursuant to his special duties, or police officer directing such officer to immediately seize such dog and hold the same pending judicial determination as provided in this section.
Thus, it appears that the only “special duty” that is to be imposed, is that after a proceeding is commenced, the appropriate court must make a determination of the dog’s propensity, and then only take steps to remove the dog for further proceedings as to the dog’s propensities.
As such, it is possible that if a court ordered an officer to seize a dog, this could create a “special relationship,” with any subsequent breach of this duty potentially giving rise to liability. However, this does not appear to be the case here.