Dog Bite Injury Claim Where a Two-Year-Old Boy is Attacked by a Rottweiler*

The plaintiff in this instance is Dicky Mack (an infant) and his guardian/father Ken Mack. The defendants are Bob and Kimber Tanner. The court denied the motion by the defendants for summary judgment dismissing the plaintiff's complaint.

The plaintiff Ken Mack launched this action on behalf of his son Dicky to recover damages for personal injuries sustained as a result of a dog attack that took place at the home of the defendants.

The plaintiff Ken Mack indicated that at the time of the incident his son was 2-years old and his family was at his sister's (Kimber Tanner) for supper. The Macks were at the house frequently.

Mack stated that he never saw the dog bite anyone, however after his son's attack, he was told that the dog had previously bitten an employee on the ankle when the man came to perform yard work. The dog was allowed to roam free about the house and the property.

The attack occurred in the hallway of the home after the child twice tried to take a bone away from the dog. The dog bit his throat and chin and knocked him into the corner of the wall cutting the back of the child's head. Dicky's father filed this dog bite injury claim.

Defendant Mr. Tanner stated that he had never heard of or seen the dog bite anyone and he added that the dog had a good disposition and only received informal obedience training from his owners.

Defendant Tanner also stated that as part of the dog's training he would sometimes take his food away from him and he never witnessed the dog snap or growl at any of the children when they took his food away either.

The plaintiff Dicky said he was feeding the dog biscuits from a bag by throwing them at him. While throwing the biscuits the dog came up and bit him.

The other person who was bitten by the dog testified he was doing yard work when the dog started to growl and then lunged at him, almost biting his face. He ran from the dog and into the house to tell Kimber Tanner of the attack.

The court said that the person who wants summary judgment must make a prima facie showing of entitlement by tendering sufficient evidence to eliminate any material issue of fact. The burden then shifts to the nonmoving party to demonstrate that there are material issues of fact. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues in a dog bite injury claim.

Case law states that the owner of a domestic animal will be held liable for harm caused by that animal if the owner knew or should have known of that animal's vicious propensities.

A plaintiff may also establish knowledge by presenting evidence that the animal has a proclivity to act in such a vicious manner and that proclivity results in the occurrence of an injury.

Further, a defendant may also be held liable for an injury caused by a domestic animal where, although not vicious, the animal causes injuries that were reasonably foreseeable. Vicious propensities, however, are not established solely by the fact that a dog is confined, or the severity of the attack on the plaintiff, or the violent tendencies of the breed.

The defendants have not met their burden in establishing their entitlement to judgment as questions have been raised as to whether or not the defendants were aware the Rottweiler's propensities.

Questions of fact have been raised in this dog bite injury claim regarding whether the defendants were aware of the dog's viciousness. Accordingly the defendant's motion for summary judgment was denied.