In New York, if a person is attacked and sustained injuries from a dog (or any domestic animal), then a claim for “absolute liability” (also known as “strict liability”) must be brought. (“Absolute liability” is defined as the legal responsibility for damages even if the defendant was not at fault or negligent.) A negligence claim cannot be brought in a dog bite scenario. See Collier v. Zambito, 775 N.Y.S.2d 205 (2004). However, one will only be successful in bringing an absolute liability claim if he or she alleges and proves that the dog exhibited "vicious propensities" prior to the attack, and that the dog's owner knew or should have known of the dog’s vicious propensities prior to the attack. Id. In regards to the above, the following should be noted.
The mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is not sufficient to establish that it had vicious propensities. Id. Also, “Beware of Dog” signs, standing alone, are insufficient as well. See Altmann vs Emigrant Savings Bank, 670 N.Y.S.2d 859 (2d Dept. 1998). More has to be shown to constitute vicious propensities, such as evidence of a prior attack, the dog’s tendency to growl, snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, or other evidence of the dog's proclivity to act in a way that puts others at risk of harm. See Bard v. Jahnke, 815 N.Y.S.2d 16 (2006). This law applies regardless of what type of breed of dog is involved (see Snyder v. National Parking Systems, 2004 NY Slip Op 51311).
One of the most common ways to show that a dog has exhibited vicious propensities is to prove that it bit someone before (hence why the law in this area is loosely referred to as "the dog bite law"). Another way is to have a person familiar with the dog testify to its vicious propensities (such as a member of the household or a neighbor).