Collier v. Zambito
1 N.Y.3d 444, 807 N.E.2d 254, 775 N.Y.S.2d 205 (2004)
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Rule of Law:
An owner of a domestic animal is liable for harm caused by the animal only if the owner knows or should have known of the animal's vicious propensities. Evidence that a dog is merely kept confined because it barks at visitors is insufficient, by itself, to raise a triable issue of fact as to the owner's knowledge of such propensities.
Facts:
- Charles and Mary Zambito owned a mixed-breed dog named Cecil, which they kept as a family pet.
- The Zambitos customarily confined Cecil to the kitchen behind a gate when visitors were present because the dog would bark.
- To the knowledge of all parties, Cecil had never previously threatened or bitten anyone and had always been friendly.
- On December 31, 1998, 12-year-old Matthew Collier, who had been to the Zambito home on several previous occasions, was visiting.
- When Matthew came downstairs, Cecil began to bark.
- Mary Zambito put Cecil on a leash and invited Matthew to approach the dog to let it smell him.
- As Matthew approached, Cecil lunged without provocation and bit Matthew's face.
Procedural Posture:
- Plaintiff Andrea Collier sued defendants Charles and Mary Zambito in the New York Supreme Court, which is the state's trial court.
- Defendants moved for summary judgment to dismiss the complaint.
- Plaintiff cross-moved for summary judgment on the issue of liability.
- The Supreme Court (trial court) denied both motions, finding a triable issue of fact.
- Defendants, as appellants, appealed to the Appellate Division of the Supreme Court, an intermediate appellate court.
- The Appellate Division reversed the trial court's order and granted summary judgment to the defendants, dismissing the complaint.
- Plaintiff, as appellant, appealed that decision to the Court of Appeals of New York, the state's highest court.
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Issue:
Does evidence that a dog owner confined their dog because it would bark at visitors, without any history of the dog growling, snapping, or biting, raise a triable issue of fact as to whether the owner knew or should have known of the dog's vicious propensities?
Opinions:
Majority - Ciparick, J.
No. The mere fact that a dog was kept enclosed or that it barked at people is not sufficient to raise a triable issue of fact as to whether it had vicious propensities. For an owner to be held liable for harm caused by a domestic animal, the plaintiff must prove the owner knew or should have known of the animal's vicious propensities. In this case, there was no evidence that Cecil had ever growled, snapped, bared its teeth, or acted in a threatening manner. The uncontroverted testimony established the dog was confined only because it barked at guests, not out of fear it would harm them. Normal canine behaviors like barking and being energetic do not establish vicious propensities. Therefore, the plaintiff failed to raise an issue of fact that the Zambitos were aware of any dangerous tendency, and summary judgment for the defendants was appropriate.
Dissenting - G.B. Smith, J.
Yes. A question of fact exists as to whether the defendants knew or should have known of the dog's potential to harm others. Viewing the evidence in the light most favorable to the plaintiff, a reasonable person could conclude that the defendants' practice of confining Cecil was due to an awareness of potential danger, not simply because he barked. The dog had never been given the opportunity to interact with visitors before. On the one occasion he was allowed to, he attacked a child's face without provocation. This, combined with the confinement, is sufficient for a jury to infer that the defendants had notice of the dog's dangerous propensities, making summary judgment improper.
Analysis:
This decision solidifies New York's traditional common-law rule for animal liability, requiring plaintiffs to prove the owner had prior notice of a 'vicious propensity.' It clarifies that common pet behaviors like barking and an owner's decision to confine a pet for non-aggressive reasons are not sufficient evidence to survive a motion for summary judgment. The ruling heightens the evidentiary burden on plaintiffs in dog bite cases, making it more difficult to proceed to trial without specific evidence of prior aggression (e.g., growling, snapping, or prior attacks), thereby rejecting a move towards strict liability that some other states have adopted.
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