Defense Digest, Vol. 31, No. 2, June 2025

All Bark and All Bite

By
Keith M. Andresen

Key Points:

  • In New York, if the owner of an animal knew or should have known the animal had vicious propensities, a plaintiff may seek to hold the owner strictly liable. 
  • After Flanders v. Goodfellow, 2025 WL 1127772 (N.Y. Apr. 17, 2025), a New York plaintiff may now also rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances which caused the plaintiff’s injury.

The New York Court of Appeals just did away with the “one-bite rule” and opened the possibility for finding dog owners liable in negligence for the “first bite” by a dog. In a case where a postal carrier was bitten by a dog while delivering a package to the dog owners’ residence, the court reinstated causes of action for strict liability and negligence against the dog’s owners.

Anyone who has litigated a dog bite case in New York is aware of the so-called “one-bite rule.” This rule provides that, absent a history of prior acts showing vicious propensities on the part of the dog or other domestic animal, such as a prior bite, the owner may not be held liable in negligence for a “first bite” by the animal or charged with knowledge of vicious propensities. See Bard v. Jahnke, 848 N.E.2d 463, (N.Y. 2006). 

In a recent decision, the New York Court of Appeals in Flanders v. Goodfellow, 2025 WL 1127772 (N.Y. Apr. 17, 2025), overruled Bard, supra, to the extent that it precluded negligence liability for harm caused by domestic animals and reinstated the plaintiff’s negligence cause of action. It held that the 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. It noted that a vicious propensity includes the propensity to do any act that might endanger the safety of the persons and property of others in a given situation, and it indicated that once an owner’s actual or constructive knowledge of their animal’s vicious propensities is established, the owner faces strict liability for the harm the animal causes as a result of those propensities. 

Knowledge of vicious propensities “may of course be established by proof of prior acts of a similar kind of which the owner had notice,” a triable issue of fact “might be raised—even in the absence of proof that the dog had actually bitten some-one—by evidence that it had been known to growl, snap or bare its teeth.” Collier v. Zambito, 807 N.E.2d 254, 255-256 (N.Y. 2004); see also Bard, 848 N.E.2d at 466-467. A “vicious propensity” should be understood to include “any behavior that ‘reflects a proclivity to act in a way that puts others at risk of harm,’” see Hastings v. Sauve, 989 N.E.2d 940, 941 (N.Y. 2013), quoting Bard, 848 N.E.2d at 467.

If there is a question of fact as to whether the dog owner should have known that the dog’s behavior reflected a proclivity to act in a way that puts others at risk of harm, see Collier, 807 N.E.2d at 256, this would preclude a grant of summary judgement on the strict liability cause of action. See Flanders. In Flanders, postal workers who had been to the dog owners’ residence stated that anyone in the defendants’ home would have been aware of the dog’s aggressive behavior, which included growling, snarling, barking, slamming into windows, and trying to bite at postal workers through the glass, 2025 WL 1127772, at *2. Although the defendants contended that they did not know of the dog’s behavior and emphasized that the postal workers did not report the dog’s behavior to them or the post office, that response merely presented questions of credibility about the defendants claimed ignorance of the dog’s behavior and the postal workers’ reasons for not reporting it. Id. Moreover, the defendants admitted that the dog got into a fight with another dog during its brief stint with its trainer. Id. Given all of this evidence, the New York Court of Appeals concluded that there was a triable issue of fact which precluded a grant of summary judgment for the defendants on the strict liability cause of action. Id. It also held that “to the extent we previously held that a plaintiff may not assert a common-law negligence cause of action against the owner of a domestic animal for harms caused by that animal, we now overrule that precedent.” Id. at *8. 

A New York plaintiff who suffers an animal-induced injury, therefore, now has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold the owner strictly liable. Or the plaintiff may now rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. A plaintiff may assert both theories of liability pursuant to Flanders. 

Dog bite law is now all bark and all bite. Sounds “ruff” to us. 

*Keith is a member of our Casualty Department and works in our New York City office. 

 

Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.