## Facts

- Charles and Mary Zambito owned “Cecil,” a mixed-breed family dog.
- The Zambitos commonly kept Cecil behind a kitchen gate when visitors arrived or when they were away, because the dog would bark.
- On December 31, 1998, 12-year-old Matthew Collier visited the Zambitos’ home as a guest of their son.
- As Matthew came downstairs to use the bathroom, Cecil began barking.
- Mary Zambito put Cecil on a leash and invited Matthew to approach so the dog could smell him, noting the dog had seen him on prior visits.
- Cecil lunged and bit Matthew in the face; the attack was unprovoked.
- Both sides testified they were unaware of any prior instance in which Cecil had threatened or bitten anyone.

## Issues

1. Whether the evidence raised a triable issue that the dog had “vicious propensities.”
2. Whether the evidence raised a triable issue that the owners knew or should have known of any such propensities.
3. Whether routine confinement of a barking dog can support an inference of vicious propensities and owner knowledge sufficient to defeat summary judgment.

## Decision

- The Court of Appeals affirmed the order granting summary judgment to the defendants.
- The court held that plaintiff’s proof was insufficient as a matter of law to show vicious propensities or the owners’ actual or constructive knowledge of them.
- Evidence that the dog barked and was sometimes confined for that reason did not, without more, establish a propensity to endanger others.
- The owners’ conduct in inviting the child to approach the leashed dog supported the conclusion that they did not believe the dog posed a danger.
- The complaint was dismissed, with costs.

## Legal Principles

- An owner of a domestic animal is liable for injuries only if the plaintiff proves: (1) the animal had vicious propensities, and (2) the owner knew or should have known of those propensities.
- “Vicious propensities” include a tendency to do acts that might endanger the safety of others in the relevant situation, but ordinary canine behavior (e.g., barking or boisterousness) is not enough, standing alone.
- Without evidence of prior conduct indicating dangerousness, an owner generally cannot be charged with knowledge of vicious propensities.
- Liability for injuries caused by domestic animals is not established by general negligence concepts absent proof of vicious propensities and owner knowledge.

## Conclusion

The court held that an unprovoked bite, without prior evidence of threatening behavior and without proof the owners knew or should have known of a dangerous tendency, does not permit recovery; routine confinement to control barking does not create a triable issue of vicious propensities or owner knowledge under New York law.


Collier v. Zambito, 807 N.E.2d 254 (N.Y. 2004)