Appellate Division, Third Department - Vicious Propensity Case

Handed down on June 21, 2012 was the case of Reil v. Chittenden, et. al. (513852). In an opinion by Judge McCarthy the Appellate Division upheld the lower court's denial of summary judgment for the defense in a dog bite case.

The facts are as follows: the plaintiff opened the door to the defendants' home and yelled to ascertain if anyone was home. The defendants were not home at the time, but their dogs, all five, rushed out to greet the plaintiff (intruder?) One of the dogs bit the plaintiff on the finger, partially amputating his fingertip. After the commencement of the action, the defendant moved for summary judgment claiming that the plaintiffs lacked the necessary proof of a vicious propensity on part of the dog.

Despite the defendants showing of vet records and their EBT testimony that presented the proof that the defendants had owned the dog for nine years and that the dog had never acted aggressively or bitten anyone and that the plaintiff himself had testified that he felt the dogs were friendly and never found them aggressive, the lower court focused on the testimony of the plaintiff where he recollected an alleged statement from one defendant that after the incident complained of the defendant stated: "I know the dog that did it, it was Drake".

The appellate court upheld the lower court's determination that the statement raised a factual issue as to whether or not the defendants had knowledge of the dogs alleged "vicious propensities".