A plaintiff commenced an action seeking damages for injuries he sustained in a motorcycle accident when he attempted to avoid hitting the defendants’ dog, which had entered the road. The lower court denied defendants’ motion seeking summary judgment dismissing the complaint. The Supreme Court, Appellate Division, Fourth Department, however reversed the lower Court’s decision and granted the defendant’s request for dismissal. The Court reasoned that it is well established that the negligence of the owners of a domestic animal is not a basis for liability for injuries caused by the, unless the owners knew or should have known that the animal had a vicious which includes a propensity to interfere with traffic.
In the case at hand, it was undisputed that, on the date of the accident, the defendant closed the gate on the six-foot chain link fence surrounding defendants’ yard but failed to secure it and that the dog pushed open the gate and ran down the 100–foot driveway and into the road. However, the defendants established that the dog had never been unrestrained outside of the confines of their yard prior to that date and further, the defendants submitted plaintiff’s deposition testimony that he lived one-quarter mile from defendants’ house and that he passed defendants’ house at least twice per day and had never seen the dog prior to the date of the accident. The Court concluded that the plaintiff failed to raise a triable issue of fact whether the dog had a propensity to interfere with traffic and therefore reversed the lower Court’s order and granted the motion dismiss the complaint.