Loper v. Dennie , 807 N.Y.S.2d 672 ( 2005 )

Crew III, J.R (dissenting).

I respectfully dissent. While somewhat loath to do so, I must relate the evidentiary facts in some detail to explain my disagreement with the majority. The majority concedes that there is absolutely no evidence that defendants Mark D. Anderson and Vicky L. Anderson (hereinafter collectively referred to as defendants) had any knowledge of the prior attack, but places considerable emphasis on the fact that a postal carrier observed the dog on a tether and that each time the postal carrier approached the house, the dog would bark in an aggressive manner. It is first important to point out that a dog who jumps on a fence in an owner’s yard and barks and growls at passersby does not, by itself, evince vicious propensities (see Collier v Zambito, 1 NY3d 444, 447 [2004]). More importantly, however, even assuming that the dog’s conduct here was sufficient to put the postal carrier on notice of its purported vicious propensities, there is absolutely nothing in the record to suggest that this alleged aggressiveness ever was called to the attention of defendants, who, admittedly, only visited the property a few times prior to the attack at issue. Further, the postal carrier’s knowledge cannot be imputed to defendants (see Smedley v Ellinwood, 21 AD3d 676 [2005]). Finally, Mark Anderson testified that on the occasions he saw the dog prior to the attack, the dog barked a little, but wagged his tail and appeared to be pretty friendly.

The majority also makes much of Mark Anderson’s statement to defendant Donald Harp that he was concerned that the dog’s presence might cause his insurance to increase, drawing the inference, I assume, that this indicated a knowledge of the dog’s vicious propensities. This, to my way of thinking, is a bit of a leap. Mark Anderson simply advised Harp that if his insurance premium increased as a result of the dog’s presence, Harp would have to pay the increase. Mark Anderson further testified that he advised his insurance carrier of the dog’s presence but did not recall if the premium actually increased. On this point, there is absolutely no evidence that Mark Anderson was worried about an insurance premium increase because of the dog’s alleged viciousness. Indeed, Harp testified that Mark Anderson’s concern with regard to a possible increase in premium stemmed from the breed and size of the dog.

Next, the majority notes that Vicky Anderson expressed concern about how the dog might behave around children, a quite proper concern, in my view, but one that is in no way probative of her knowledge of the dog’s allegedly vicious propensities. In any event, she was told that the dog was fine with kids and testified that she saw the dog playing with kids and saw absolutely no aggression—the kids “were petting him, playing with him.” While it is true that Mark Anderson testified that he had heard from television that Rottweilers could be “pretty mean” and that Vicky Anderson knew that Rottweilers sometimes were used as guard dogs, that testimony has nothing to do with the propensities of the dog at issue and defendants’ awareness thereof.

Finally, as the majority points out, “breed alone is insufficient to raise a question of fact as to vicious propensities” (Palleschi v Granger, 13 AD3d 871, 872 [2004]). Indeed, “there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal” (Roupp v Conrad, 287 AD2d 937, 938 [2001]). And while it has been said that a dog’s breed can be considered in the overall analysis of vicious propensity and knowledge thereof, here there is not one iota of evidence, direct or circumstantial, that indicates that defendants knew or should have known of this dog’s allegedly vicious propensities, and consideration of the dog’s breed therefore becomes superfluous.

Ordered that the order is affirmed, with costs.