Opinion
22828/08.
Decided on June 21, 2011.
Plaintiff Catherine Ruffin was represented by the Law Offices of Walu Mosaku, P.C. Defendants Daniel Wood and Tanya Wood were represented by John J. Nicolini, Esq. of Nicolini, Paradise, Ferretti Sabella.
Recitation in accordance with CPLR 2219(a) of the papers considered on Plaintiff's motion for an order, pursuant to CPLR 4401 and/or CPLR 4404 (a), granting her judgment as a matter of law:
— Notice of Motion to Set Aside the Jury Verdict, and for a Directed Verdict in Favor of the Plaintiff
Affirmation in Support of Motion to Set Aside the Jury Verdict, and for Directed Verdict in Favor of the Plaintiff
Exhibits 1-2
— Affirmation in Opposition
— Reply Affirmation in Support of Motion to Set Aside the Jury Verdict, and for a Directed Verdict in Favor of the Plaintiff
Plaintiff Catherine Ruffin was represented by the Law Offices of Walu Mosaku, P.C. Defendants Daniel Wood and Tanya Wood were represented by John J. Nicolini, Esq. of Nicolini, Paradise, Ferretti Sabella.
The jury rendered its verdict in favor of defendants Daniel Wood and Tanya Wood on plaintiff Catherine Ruffin's claim for damages for personal injury, answering "no" to the first question on the Verdict Sheet, "Did the defendants' dog have vicious propensities on June 4, 2008?" Prior to the verdict, Plaintiff had moved pursuant to CPLR 4401 for a directed verdict, and following the "better practice" ( see Austin v Consilivio, 295 AD2d 244, 246 [1st Dept 2002]), the Court reserved decision on the motion. Subsequent to the verdict, Plaintiff moved pursuant to CPLR 4404 (a) for judgment notwithstanding the verdict.
Substantially similar standards govern the court on a motion pursuant to CPLR 4401 for a directed verdict and on a motion pursuant to CPLR 4404 (a) for a judgment notwithstanding the verdict. ( See Soto v NY City Transit Auth., 6 NY3d 487, 492.) "A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party." ( Szczerbiak v Pilat, 90 NY2d 553, 556.) "For a court to conclude as a matter of law [pursuant to CPLR 4404 (a)] that a jury verdict is not supported by sufficient evidence, . . . [i]t is necessary first to conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." ( Cohen v Hallmark Cards, 45 NY2d 493, 499.)
"In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every favorable inference which may properly be drawn from the facts presented, and the facts must be considered in the light most favorable to the nonmovant." ( Szczerbiak v Pilat, 90 NY2d at 556.) "If there is a question of fact and it would not be utterly irrational for a jury to reach the result it has determined upon . . . the court may not conclude that the verdict is as a matter of law not supported by the evidence'." ( Soto v NY City Transit Auth., 6 NY3d at 492 [quoting Cohen v Hallmark Cards, 45 NY2d at 499].)
There is no dispute that on June 4, 2008 Catherine Ruffin was tending a rose bush in her backyard, near a fence that separated her backyard from that of her neighbors, Daniel and Tanya Wood, when the Woods' dog "Halo" ran across the Woods' backyard and mounted the fence, startling Ms. Ruffin and causing her to move away from the fence and fall. In order to succeed on her motions, Ms. Ruffin must first establish that the jury's answer to the first question on the Verdict Sheet was "utterly irrational," and then establish the remaining elements of Defendants' liability.
"[T]he owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities." ( Collier v Zambito , 1 NY3d 444 , 446.) "Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others is a given situation." ( Id. [internal quotation marks and citations omitted].) "Once this knowledge is established, the owner faces strict liability." ( Bard v Jahnke , 6 NY3d 592 , 597 [footnote omitted].)
The Court charged the jury in accordance with Pattern Jury Instruction 2:220, with a modification that will be described.
"Question one asks: Did the defendant's [ sic] dog have vicious propensities on June 4, 2008?'
If you reach question two, it asks, Did defendants Daniel Wood and Tanya Wood know or should they have known about their dog's vicious propensities prior to June 4, 2008?' Your verdict may be for plaintiff only if you find one, that defendants' dog had vicious propensities. And two, that defendants knew or should have known about those vicious propensities. In such case, defendants will be liable, even though they were not negligent in the manner of keeping the animal and whether or not the incident occurred on defendants' property.
On the issue of vicious propensity which means a natural inclination or usual habit to act in a way that endangers people or property, you may consider the attack on plaintiff, the results of that attack, the animal's attitude or disposition when people approached it and whether it had previously attacked any other person. To find vicious propensity, it is not necessary to find that the dog had previously injured someone.
On the other hand, mere barking or an isolated straining at the leash would not demonstrate vicious propensities. You may find that the dog had vicious propensities only if the nature and frequency of its acts furnished reasonable grounds to believe that it might cause an injury. If you find that the animal did not have vicious propensities, your verdict will be for defendants. If you find that it did have vicious propensities, you will then proceed to the question of whether the defendants knew or should have known about the dog's vicious propensities.
On that question an owner is entitled to assume that his or her dog will not injury anyone unless the dog's previous behavior gave evidence of vicious propensity. It is not necessary that defendants actually knew of the vicious propensities. [I]f the vicious propensities of the animal had existed for such a period of time that a reasonably prudent person should have known about them, you will find that defendants knew about them.
In deciding this, you may consider the nature and frequency of the animal's acts as well as the length of time over which they had continued. Also, if the dog's propensities were known to someone that had custody of the dog, you should consider that the defendants also had that knowledge whether or not the owners were told.
If you find that defendants did not know or should not have known of the dog's vicious propensity, your verdict will be for defendants. If you find that defendant's [ sic] dog had vicious propensities and that defendant's [ sic] knew or should have known of such propensity your verdict will be for plaintiff." (Transcript ["T"] at 248-50 [emphasis added].)
The emphasized sentence in the charge as given was added to reflect the principle, based on caselaw and relevant to this case, that the knowledge of a person to whom the care and custody of a dog is entrusted is imputed to the dog's owner, even if that knowledge was not communicated to the owner. ( See Soronen v Von Pustau, 112 AD 437, 438 [2d Dept 1906]; see also Brice v Brauer, 108 NY 428, 432 [1888]; Niland v Geer, 46 AD 194 [2d Dept 1899].)
The charge did not expressly reflect the principle, also based on caselaw and relevant to this case, that direct contact between the dog and the injured person is not necessary, so long as the other elements of owner liability, including proximate cause, are present. ( See Barone v Phillips, — AD3d —, 2011 NY Slip Op 03395 [4th Dept 2011]; Lewis v Lustan , 72 AD3d 1486 [4th Dept 2010]; Pollard v United Parcel Serv., 302 AD2d 884 [4th Dept 2003]; see also Fasano v Colon , 27 AD3d 691 [2d Dept 2006].)
Nor did the charge expressly reflect the principle that where the dog's prior behavior would "not necessarily be considered dangerous or ferocious," the owner is liable "only when such proclivity results in the injury giving rise to the lawsuit." ( See Collier v Zambito, 1 NY3d at 447; see also Campo v Holland , 32 AD3d 630 , 631 [3d Dept 2006] ["Such rambunctious behavior would show awareness of a vicious propensity only if it were the very behavior that resulted in plaintiff's injury."])
In a very recent decision on facts similar to those here, the plaintiff ran from his neighbors' dog, which was barking and running directly from the neighbors' property toward plaintiff on his property, and tripped over the threshold of his front door. ( See Barone v Phillips, 2011 NY Slip Op 03395, * 1.) In response to the defendants' showing on their motion for summary judgment, "plaintiffs presented no evidence suggesting that the dog had a propensity to run at people and thus failed to raise a triable issue of fact to defeat the motion." ( See id. at * 2.) "To the extent that plaintiffs presented evidence that the dog had propensities to engage in other behavior that might endanger people, . . . such evidence was insufficient to raise an issue of fact to defeat the motion because those propensities did not result() in the injury giving rise to the lawsuit'." ( See id. [quoting Collier v Zambito, 1 NY3d at 447].)
Among the many appellate court decisions in dog attack cases, the Court has found only two that uphold a trial court's granting of judgment as a matter of law to a plaintiff — — one on summary judgment, the other on direct verdict. In Scerri v Walsh ( 70 AD3d 922 [2d Dept 2010]), the "plaintiffs established their entitlement to judgment as a matter of law by demonstrating that the defendants were aware of their dog's vicious propensities' . . . with evidence that the dog had bitten, mouthed,' growled, or snapped' at three other children prior to the instant attack," and the "defendants failed to raise an issue of fact"( see id. at 923.) No such canine behavior was present here. In Johnson v Sloan ( 249 AD2d 915 [4th Dept 1998]), a three-justice majority affirmed without opinion the trial court's granting the plaintiff's motion for a directed verdict. A two-justice dissent noted that "Defendant testified that he heard that the dog had bitten defendant's sister-in-law and a neighbor and that he had erected a stockade fence . . . because the neighborhood children became fearful when the dog charged the existing fence." ( See id. at 915 [Pine, J.P., and Bohem, J].) There is no evidence here of biting by the dog, or of similar protective conduct by the dog's owner.
On the other hand, in Tessiero v Conrad ( 186 AD2d 330 [3d Dept 1992), the lower court granted the plaintiff's motion for partial summary judgment on liability based upon defendants' admissions that "their puppy had nipped their niece's hand about three weeks prior to the incident" that gave rise to the suit ( see id. at 330.) The Third Department reversed. "The fact that an animal may have previously responded by biting does not automatically establish, as a matter of law, either vicious propensities or knowledge thereof." ( Id.)
The Court has not found any appellate court decision in a dog attack case in which a jury verdict for the defendant has been set aside, except where the court made prejudicial evidentiary errors ( see Austin v Bascaran, 185 AD2d 474 [3d Dept 1992]; Baldwin v Thompson, 229 AD 430 [3d Dept 1930]), or where the court's instructions to the jury were incorrect or inadequate ( see Lynch v Nacewicz, 126 AD2d 708 [2d Dept 1987]; Morales v Quinones, 72 AD2d 519 [1st Dept 1979]; DiGrazia v Castronova, 48 AD2d 249 [4th Dept 1975].) In several cases, a trial court's granting the defendant a directed verdict was reversed because the plaintiff had presented sufficient evidence for a jury determination, but a new trial was ordered, and not judgment in the plaintiff's favor. ( See Moriano v Schmidt, 133 AD2d 72, 72 [2d Dept 1987]; Lovell v Haas, 262 AD 49, 50 [1st Dept 1941]; Carlise v Cassasa, 234 AD 112, 114-15 [1st Dept 1931]; see also Lagoda v Dorr, 28 AD2d 208, 209-10 [3d Dept 1967] [judgment notwithstanding verdict granted/verdict reinstated on appeal].)
Clearly, the question whether a dog possessed "vicious propensities" is for the jury where reasonable minds might differ on the answer. ( See Rider v White, 65 NY 54, 56 [1875]; Hayden v Sieni, 196 AD2d 573, 574 [2d Dept 1993]; DeVaul v Carvigo, Inc., 138 AD2d 669, 669-70 [2d Dept 1988].) Although the range of canine behavior may be limited, other circumstances will be varied and many, and will include the period of time over which the dog's behavior was observed and the plaintiff's relationship, if any, with the dog ( see Illian v Butler , 66 AD3d 1312 , 1313 [3d Dept 2009] [noting the plaintiff's "longstanding familiarity with the dog"].)
It is against this legal backdrop that we must consider Plaintiff's contention here that the evidence at trial requires judgment in her favor, despite the jury's contrary judgment. Here, perhaps, the most significant circumstances for the jury to consider, other than the observed behaviors of the dog, were the period of time from the Woods' purchase of Halo in November 2004 until the incident giving rise to this action in June 4, 2008, i.e., approximately three and a half years; during which period the jury could reasonably conclude the dog was let into the Woods' backyard at least once a day for its bodily functions; and during which period the jury could reasonably conclude Plaintiff, her husband, and the niece who also lived in the Ruffins' house were occasionally, if not regularly, in their backyard.
As described by Ms. Ruffin at trial: "The dog ran down the steps and came straight towards me, charged at me and I moved backward to save my face and that's when I went backward and fell"; The dog . . . just ran, charged at me with the legs up"; "The dog charged"; "The dog growled as I moved backward." ( See T. at 37-40.) The dog put part of its front legs and its head over the fence, but did not come over the fence, or bite, scratch, or otherwise make actual physical contact with Plaintiff. This account was essentially confirmed by Jean Yolanda Noel, Mr. Ruffin's niece, but in any event was not disputed by any witness for Defendants nor by Defendants' counsel during summation.
Ms. Ruffin also testified that approximately one and a half years to two years prior to the injury-producing incident, she and her husband were in their backyard, tending to tomato plants
when "the dog ran at him" ( see T. at 47), apparently toward the fence, but the dog did not on that day, or any day before the injury-producing incident, get over the fence.
Because of bad health, Dinis Ruffin, Plaintiff's husband, did not testify at trial, but portions of his examination before trial were read to the jury. Mr. Ruffin testified that he observed Halo trying to come over the fence separating the backyards "many times, many times, many times"; "It would always go out there and if I moved anywhere near there, it made a move like it was coming over to me"; "I didn't think it would come over my fence." ( See T. at 108.) Mr. Ruffin did not say anything to the Woods about the dog; "We didn't have any need to do that because he didn't do anything." ( Id. at 108-09.) Mr. Ruffin also testified that his "memory and [his] mentality [were] not as good as I would like them to be" ( id. at 102), and the jury might fairly have discounted his testimony to the extent favorable to his wife's claim.
Focusing on the specific injury-producing behavior here, the caselaw is not particularly consistent on whether it is sufficient to support a finding of "vicious propensities." In Fontecchio v Esposito ( 108 AD2d 780 [2d Dept 1985]), there was testimony at trial that "the dog growled and charged at the fence whenever persons passed by his owner's property; that on one occasion the dog broke loose from his owner, bit the mailman's pouch, and had to be pulled away; and that on another occasion, the dog lunged at the fence and snapped at a child who was walking on the public sidewalk" ( id. at 780-81.) "The dog constantly barked, exposed his teeth, and strained at his leash." ( Id .at 781.) On appeal from a jury verdict in favor of the plaintiff, the Second Department concluded that this evidence "was sufficient to establish that the dog possessed vicious propensities, in that he habitually tended to do acts which might endanger persons" ( see id.)
In McLane v Jones ( 21 AD3d 1376 [4th Dept 2005]), on a defendant's motion for summary judgment, the Fourth Department concluded that the plaintiff raised an issue of fact with evidence that the "defendant's dog would run along defendant's side-yard fence and would behave in an aggressive manner by jumping on the fence, casting her paws over the fence, and barking and growling as pedestrians passed by the house" ( see id. at 1377.)
On the other hand, in Roupp v Conrad ( 287 AD2d 937 [3d Dept 2001]), on the defendants' motion for summary judgment, the Third Department concluded that "evidence that [the dog] would often jump on the fence in defendants' front yard and bark or growl at people walking by the house does not demonstrate vicious propensities" ( see id. at 938.) And in Rose v Heaton ( 39 AD3d 937 [3d Dept 2007]), also on the defendants' motion for summary judgment, the Third Department stated that where "all three of defendants' dogs rushed toward the fence," with the subject dog "leading the pack and . . . barking and growling," the "dog's behavior simply does not rise to the level of raising an issue of fact regarding his vicious propensities" ( see id. at 939.)
Because of its facts and its posture as an appeal from a verdict in favor of the defendants, the Third Department's decision in Sorel v Iacobucci ( 221 AD2d 852 [3d Dept 1995]) appears closest to this case, at least as to the specific injury-producing conduct. The plaintiff appealed from the trial court's denial of her motion to set aside the verdict as against the weight of the evidence ( see CPLR 4404 [a]), which is governed by the less-demanding standard of "fair interpretation of the evidence" ( see Sorel v Iacobucci, 221 AD2d at 852; Nicastro v Park, 113 AD2d 129, 134-37 [2d Dept 1985].)
"[T]estimony at trial showed that the dog was known to bark and sometimes lunge at defendants' fence or front door in response to the presence of strangers. Although this evidence was sufficient to raise a question of fact as to the dog's known propensities so as to necessitate a trial . . ., in our view defendants produced sufficient evidence to permit the jury to conclude that the dog was not vicious, and . . . we defer to the jury's assessment of the witnesses' credibility'" . . .
Although the dog admittedly exhibited protective tendencies, there was no evidence contradicting [the defendants'] testimony that the dog had never been known to attack, bite or harm people with whom he came into contact . . . There was also no evidence that the dog had ever previously escaped to put defendants on notice that this event could occur." ( Sorel v Iacobacci, 221 AD2d at 853 [quoting Hayden v Sieni, 192 AD2d at 574].)
The appellate court affirmed the trial court's denial of the plaintiff's motion to set aside the verdict.
Here, as well, there is no evidence that Defendants' dog Halo ever managed to traverse the fence separating the Woods' backyard from the Ruffins'. Mr. Wood testified that before the incident with Ms. Ruffin, Halo "[n]ever attacked anyone or made any aggressive action toward anyone" (T. at 128-29); and when Ms. Wood was asked whether she ever observed the dog acting in an aggressive manner, she answered, "maybe toward other animals" (T. At 155.) Mr. Wood also acknowledged that Halo would "act[ ] in an aggressive manner toward other dogs" (T. at 132.)
The caselaw is ambivalent, or, again, perhaps simply sensitive to the full and particular circumstances, in the significance given to the behavior of the dog toward other animals. ( Compare Grillo v Williams , 71 AD3d 1480, 1481 [4th Dept 2010]; Calabro v Bennett, 291 AD2d 616, 616 [3d Dept 2002]; with Campo v Holland , 32 AD3d 630 , 631 [3d Dept 2006].) In this case, moreover, Mr. Wood offered an explanation for Halo's behavior as to other dogs with the description of an attack by two pit bulls upon Halo when he was approximately 14 to 15 months old.
Plaintiff here also presented evidence of Halo's jumping on visitors, which is behavior that courts have considered as evidence of vicious propensities, although, again, not without exception. ( See Lewis v Lustan, 72 AD3d at 1486-87; Campo v Holland, 32 AD3d at 631]; Goldberg v LoRusso, 288 AD2d 257, 259 [2d Dept 2001]; but see Dickinson v Uschold, 11 AD3d 1036, 1036-37 [4th Dept 2004].)
Plaintiff read into evidence the deposition testimony of Defendants' son, Jordan Wood, "The dog, it jumps on people not like in a — — I don't know, attacking manner, more of like in a friendly way," and "Some people are startled by it." (T. at 142.) And Ms. Wood testified that Halo "would only like put his paws up if he like knew you"; "Like if you came into my house, and he knew you from visiting before, he would jump up in a playful manner . . ., but never just to jump on you and attack you, no." (T. at 156.)
The jumping behavior is arguably sufficiently related to the injury-producing behavior here that it would present a closer question than the evidence in Sorel v Iacobucci ( 221 AD2d 852) on a "fair interpretation of the evidence" standard ( see id. at 852.) But that is not the standard here, and, in any event, there was other evidence that the jury could reasonably have weighed against it. Jordan Wood testified that "[b]efore this incident, Miss Ruffin used to call Halo her boyfriend as a joke" (T. at 143-44), and Ms. Wood testified that "there were more than one instances where I seen her pet my dog" (T. at 154), which the jury could consider evidence of Plaintiff's assessment of Halo's "vicious propensities." And the jury could consider as evidence of Defendants' assessment that in 2008 Halo resided with the Woods and three girls aged 4, 7, and 9.
The question put before the jury, and upon which it resolved this case in favor of Defendants, calls upon the jury's common knowledge, experience, and judgment in a way that most justifies the costs and inconvenience of the jury system. Perhaps that explains the absence of any appellate court decision overturning a jury's verdict for the defendant in a dog attack case, and granting judgment as a matter of law to the plaintiff. In any event, the jury's verdict here was rational and supported by the evidence.
Plaintiff's motion is denied. Defendants may enter judgment accordingly.