Key appellate dog bite ruling in New York State

02/23/2004

ALBANY - New York's highest court has indicated that other states may be barking up the wrong tree when they make it easier for dog-bite victims to sue owners of pets without a rap sheet.

Last week, the Court of Appeals rejected a suit brought against a dog owner whose pet bit a 12-year-old boy. The court relied on 188 years of New York state law, even as other states put more responsibility on pet owners.

On Dec. 31, 1998, Matthew Collier was at the home of Charles and Mary Zambito in Auburn, visiting the Zambitos' son, Daniel.

When Collier went downstairs, the Zambitos' dog Cecil, a beagle-collie-rottweiler mix, barked at the boy. Mary Zambito placed the dog on a leash and encouraged Collier to allow the dog to sniff his hand, as the dog had known him from prior visits, according to court papers.

Cecil lunged at the boy and bit him on the face. Collier required medical attention and was left with a 1.25-inch V-shaped scar near his mouth, the court documents said. But according to legal papers, the dog had never attacked or threatened anyone before. Still, Andrea Collier, Matthew Collier's mother, argued that the dog's behavior of barking and running, as well as the Zambitos' practice of keeping Cecil in the kitchen, away from visitors, should have been evidence enough the dog was capable of attacking. The Colliers argued the case should go to trial.

In a 4-to-2 vote, the high court disagreed, keeping with New York precedent that an animal has to have shown a previous tendency for violence for the owners to be held responsible for an attack.

"Indeed, the dog's actions - barking and running around - are consistent with normal canine behavior. Barking and running around are what dogs do," Judge Carmen B. Ciparick wrote in the majority opinion.

"It was a total surprise when he bit this kid," said Allan VanDeMark, the Zambitos' lawyer. "That was shown by the fact the owner of dog allowed the kid to pet the dog. He was a good friend of her son's. She had no idea something like this would happen. It was unfortunate, but they shouldn't be held liable for his injuries."

In the dissent, Judge George Bundy Smith wrote that the fact that Cecil never bit anyone before should not rule out a chance for the case to go before a jury. Not all dogs are kept away from visitors because they simply run and bark, he argued. The fact the dog was normally kept away from visitors showed the defendants were aware of potential danger, the judge wrote.

Smith noted that a number of states, including Arizona, California, Michigan and New Jersey, among others, have adopted a "strict liability" approach to animal attacks, eliminating the requirement that the victim of an attack prove the pet owner knew or should have known of the animal's vicious tendencies.

The Colliers had sought $150,000 in compensatory damages, according to their lawyer, David G. Tehan.

While disappointed with the ruling, Tehan said he doesn't believe the state's law needs to be changed. "I don't disagree with law of the state. I disagree with the way it was applied in this case," he said.