Premises Liability Does Not Discount Snarling Dogs

January 23, 2011, 1:30PM. By Gordon Gibb

New York, NYPremises liability can refer to anything from a slippery floor in a restaurant to an errant banana peel on a supermarket floor to a threatening dog tied up outside a storefront adjacent to a public thoroughfare. A dog staked in a private yard is one thing—a passerby suffering a dog bite from an animal tied up in a private yard would be seen as trespassing. However, on a public sidewalk? An unsupervised dog tied to the premises, carries liability issues for both premise owner and dog owner.

In this case, leash laws—such as the statutes observed in Los Angeles—don't protect the public if a dog is leashed to the outside of a premises after the owner disappears inside. Given the prevailing climate in California, there is no reason for the owner to hurry along with their business; since there is no danger for a dog freezing to death such as might happen this time of year in, say, the state of Michigan.

What's more, Los Angeles Premises Liability, in general, constitutes basic protection for the citizenry and is pretty much mirrored in other communities. A case in New York State recently provides an apt illustration.

In early fall of 2003, a then-13-year-old boy was bitten on the leg by a pit bull adjacent to the rear entrance of a grocery market owned by the proprietor of the store, which was operated in space leased from the owner of the building. At the time of the dog bite, the pit bull was tied to the dumpster near the rear entrance.

The victim, who sued both the owner of the strip mall and the tenant, noted that he had frequented the facility often and repeatedly saw the dog acting aggressively toward others. Plaintiff Lamont Jones claimed that the dog barked often, had a tendency to growl and strained against his leash to lunge at people as they walked past.

The defendants managed to persuade the trial court to award them summary judgement, and argued that a trial on the merits of the case was unnecessary. This, in spite of statutes requiring premise owners to use reasonable care to maintain their premises, and to warn visitors about any known hazard—including an aggressive dog.

Jones appealed the ruling of the trial court, and the appellate court reversed the trial court's decision. In its ruling November 3, the New York Supreme Court, Appellate Division, Second Department held that neither the tenants nor the landlord proved their entitlement to judgment as a matter of law.

Issues of fact were debated as to whether the tenants allowed the dog to be chained to their garbage dumpster on a regular basis, whether the landlord was aware that the dog was chained on the premises, whether the dog had vicious propensities, whether the tenants and the landlord knew or should have known of the dog's vicious propensities, and whether the tenants and the landlord controlled the area where the incident occurred.

The reversal of the trial court's initial ruling allows for Jones' premises liability lawsuit to proceed.

Were this story to have happened in California, a California dog bite lawyer would most assuredly argue that even though a dog was tied and prevented from running free—therefore satisfying the basic premise of the LA leash law—the dog was neither restrained nor confined in an enclosed area without access to the public. Anyone could walk by within feet, if not inches, of the animal and suddenly be in the market for an LA dog bite attorney.