Housemates Responsible for Dog Bite, even if those dogs are solely owned by another housemate, according to the Appellate Division, Second Department decided on June 22, 2015 in Matthew H. v. County of Nassau.
This case arose out of an April 28, 2006 incident involving a then four-year-old infant plaintiff who was seriously injured when he was attacked by two rottweilers and an English bulldog who were owned by one of the defendants, Lawrence Kelly, Jr. The attack happened near an apartment where Kelly, a college student, was living with other housemates, defendants Dionisios Georgatos, Christopher Scheck and Jezel Yepez. They were renting from defendant, Lawrence Etkind.
On the date of incident, the three dogs had escaped from the fenced-in backyard, which they had done previously, and were roaming the neighborhood unattended. It was while the dogs were roaming unattended when the infant plaintiff, who was riding his tricycle on the sidewalk outside of his own home near Kelly’s apartment, the infant plaintiff’s mother, the infant plaintiff’s grandfather and the infant plaintiff’s four-month-old sister, when the infant plaintiff was attacked by the dogs. In an attempt to escape, the infant plaintiff, along with his grandfather, mother and four-month-old sister, retreated through their home, into the kitchen and then into the backyard. However, one of the rottweilers continued the attack on the infant plaintiff in the kitchen, and then into the backyard, where the attack only ended when the infant plaintiff’s grandfather was able to chase the dog from the home.
The infant plaintiff was taken to Nassau University Medical Center, where he was admitted, and sustained significant injuries including: partial amputation of both ears requiring reconstructive surgery; a flap avulsion on his left facial cheek that exposed a gland and required plastic surgery; lacerations on his right forehead, brow, right facial cheek, right upper eyelid, upper and lower back, buttocks, neck, left thigh, and left shoulder; and puncture wounds to various parts of his body.
There is no doubt that this was a vicious attack and it cannot be said, as a matter of law, that the four-year old infant plaintiff in any way provoked any of the dogs. But the question remained who, if any of those living in the house, were responsible for the attack. Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by that animal (i.e., if you know the dog has bitten before, you are strictly liable for any future bites). However, strict liability does not apply to an individual who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises.
Therefore, an individual will not be liable if:
- They did not harbor, or exercise dominion and control over the dogs; and
- They were not aware, nor should they have been aware, of the vicious propensities of the dogs.
So Kelly, as the owner and someone aware of the vicious propensities of the dogs, is strictly liable, but what about the other housemates?
The answer comes down to how the term harbor is defined because to establish liability against the housemates, it does not matter whether or not they were the actual owners of the dogs, it is enough that they permitted the dogs to live in their home (i.e. harbored them). The Court found that the housemates, even though not owners of the animals, housed the animals and exercised “dominion and control over the dog(s)”. As the Court noted, “where a dog is kept within a home on a consistent enough basis to become part of a household, it can be found that those who do not own the dog, but allow it to reside there and participate in its care, are harboring the dog.”