During the past year victims of animal attacks have had a hard time finding relief through the courts. Towards the end of 2011 the Court of Appeals in Smith v. Reilly dismissed plaintiff’s case because he could not overcome the defendant’s submission that the dog in issue did not have a “vicious propensity.”1 Such a result has become more common as the Court of Appeals has restricted the liability theories under which such cases can be proven. In fact, for persons injured as a result of the actions of an animal, New York is perhaps the toughest jurisdiction in the nation to be in.
To understand why those injured by animals in New York have such a hard time reaching a jury, one must understand what the standard of law is today. In 2004 the Court of Appeals in Collier v. Zambito stated that “the law in this state has been 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.”2 Two years later in Bard v. Jahnke, the Court of Appeals held an animal owner’s liability is to be determined “solely” by application of the vicious propensity rule.3
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