How Do You Prove Your Dog-Bite Case?

Every State has different laws regarding how a dog owner is liable or not for dog bites or dog attacks. Many states have a so-called “one-free bite” rule, which means that the owner can’t be held liable unless the dog had bitten someone else before it bit you. In New York, the rule is not that simple. Here are some common questions we get about the New York rule and our answers to those questions.

Is the dog owner liable if the dog never bit anyone before?

It depends. If the dog has bitten someone before, and the owner knew or should have known about it, then the owner is absolutely liable. That’s because the rule in New York is that the owner is liable if he knew or should have known the dog had vicious propensities. If the dog already bit someone, that is clear proof the dog had vicious propensities.

What if the dog had not bitten anyone before me? Does that mean the dog owner is not liable to me?

Not necessarily. You can prove the dog owner “knew of should have known the dog had vicious propensities” in several ways, not just by showing a prior bite. For example, we represented Bill, a mail deliverer, who was bitten by a dog. It was the dog’s first bite. But the owner had purchased the dog as a “watch dog”, had a “beware of dog” sign on the front door, kept the dog locked up in the cellar because he knew it was an aggressive dog, and the dog tended to growl and bare his teeth when confronted with strangers. That was a successful dog bite case because, even though the dog had never bitten anyone before, the owner obviously knew it was a “vicious” animal, which is why he had wanted it as a guard dog. So even without a prior bite, you can prove the owner liable using witness testimony that the dog tended to snarl, bare his teeth, lung at people, was kept on a chain or locked up, and just generally showed a potential to attack even if the dog hadn’t actually attacked before.

Do I have to prove the owner was “negligent”?

No! Negligence is not an element of proof in a New York dog bite case. The law provides for “strict liability”, meaning that if the owner knew or should have known of the dog’s vicious propensities, the owner is liable regardless of whether he was “negligent”. For example, if the owner kept the dog on a chain, and the dog got loose through no fault of the owner, the owner is nevertheless liable if the dog bites someone, as long as the owner knew or should have known the dog had vicious propensities.

How do we find evidence of the dog’s prior vicious propensities?

We investigate. Unfortunately, dog owners sometimes lie about their dog’s past. So we can’t just rely on what they tell us. Also, many dog owners really believe their dogs are “good dogs” who “would never hurt anyone”, but if you ask around the neighborhood, you often come up with a different story. At Michaels & Smolak, we hire investigators to check with the neighbors, the postman, other deliverers, and anyone else who frequented the neighborhood or the home. We also look for tell-tale signs that the owner knew the dog was dangerous. The fact that the dog was tied up, or there was a “beware of dog” sign, are evidence that the owner knew the dog was no “goody goody”.

Here’s an example of a case where our in depth investigation turned a dog bite case around. We recently a child who was viciously attacked by a great Dane. The owners denied the dog had vicious propensities. The owners’ insurance carrier also initially denied the claim under the belief that the dog had never threatened or harmed anyone. Our investigation, however, revealed that the dog had previously bitten a neighbor and that a dangerous dog hearing had taken place in the applicable town court. Once this information came to light, the insurance company offered the entire $100,000 policy limit.

Where does the money come from to pay me for my dog bite compensation?

Generally, homeowner’s insurance. Almost everyone who owns a home has this type of insurance, which usually covers dog bites, even if the dog bite did not happen in the home. If the dog owner is a renter, they sometimes have renter’s insurance (though this is less common).

What if the owner has no insurance?

Unfortunately, this is usually a problem. If the owner had no homeowner’s or renter’s insurance, then the dog owner is “uninsured”. In that case, we investigate his or her assets to determine whether the case is worth pursuing. If the dog owner is Bill Gates, it’s a no brainer. If the dog owner is a disabled senior citizen living off her social security check, that’s a no brainer, too. But there are many “middle ground” situations where we have to carefully investigate the potential for a financial recovery. You can’t get water from a rock, so you don’t want to spin your wheels on a case that will never pay out.

Ok, now we have covered the most commonly asked dog-bite case questions, there are a few questions that no one initially thinks to ask us but we are going to answer for you anyway:

What’s my dog bite case worth?

It depends. Generally, the worse the injury, the more the case is worth. Many dog bites leave life-long scars. If the scar is on the face or neck where it is very noticeable, rather than, for example on the butt, the case is worth more. If it is a big, ugly scar, rather than a small inconspicuous one, it is worth more. If you had to undergo rabies shots and other medical procedures, it is worth more. It is impossible to tell you what your case is worth without meeting with you and looking at the scar and medical records.

The “settlement value” of a scar also depends on the gender and age of the victim. Scars are almost always worth more on young woman because it is assumed that scars will be more of a detriment to them than to men or older people. For example, we recently represented a 16-year old girl who had been brutally attacked by a pit bull. She had terrible scarring on her wrist and arm where the dog had locked its jaw on her. She also had lost some use of her wrist and hand because of nerve damage. The settlement value of that case was worth upward of a million dollars because, as a young woman, the scarring was likely to be very embarrassing for her for many years, and the partial loss of use of her hand was likely to impact not only her enjoyment of life, but her ability to earn a living. The case would not have been worth nearly that much if the victim had been a man in his sixties.

Each case is different. So don’t hesitate to call us to set up a free consultation. Or, if you would like more free information, don’t hesitate to order our free book, “Understanding Your New York Personal Injury Claim” by Michaels & Smolak lawyer Mike Bersani. If you chose to hire us, here is how the process works:

How The Claims Process Works
  • (1) Getting to know you. Our first meeting will probably take up to an hour. We will thoroughly question you, and examine whatever records you have, to gather all available evidence and leads to evidence. We will also get to know each other and decide whether we want to work together on your case. If we agree to work together, we will both sign our retainer agreement.
  • (2) Gathering records. Your medical records are extremely important and will play a big role in proving the “value” of your case. Since we need to be sure we get ALL the records, we will have you sign authorizations allowing us to write directly to each of your medical providers, who will then send us all your records. We will also measure and photograph any scars you have from the dog bite. From time to time, we will write them to get updates. We will similarly gather any records of your past income should you be claiming lost income. Relax: gathering records is all on us. All you have to do is sign the authorizations.
  • (3) Getting our ducks lined up. We will also write to all the relevant insurance carriers, defendants, etc. We may also take statements from witnesses. This will ensure we have everything in place for when we eventually make a settlement demand.
  • (4) Waiting. Yes, that’s right. The next step is usually just waiting. Waiting for what? For you to heal. We can’t make a settlement demand until we know the full extent of your injury, and whether you will have a permanent loss, and if so, how severe that loss will be. If you have scars, they can take up to a year to heal. After the year, we can photograph your scars and let the insurance company know that what is there is now permanent. If we settle before we know the permanent consequences, then we will sell you short. The insurance company will not pay for permanent injuries as long as you are still treating and there is a chance you will completely heal or that your scar will get better.
  • (5) Settlement. Once you are done treating, and any scarring is as good as it is going to get, all the lawyers (yes all of us!) will study your file, your medical records, etc., and together we will decide – based on our experience in the courtroom -- what a fair settlement should be. We will then call you back to our office to meet with you and discuss our recommendation. You can accept or reject our recommendation. If you accept it, we will then try to settle the case for MORE or at least as much as we have agreed would be fair. But if the insurance company offers less than the number we agreed on, and negotiations fail to bring them up to our number, we will help you decide whether we should “take them to court” or simply take the last best offer. The decision is always yours, but we provide you will all the information you need to make an informed decision.
The End Result

We have helped many dog-bite victims just like you get their lives back in order after suffering serious injuries. We especially enjoy helping children get justice, as they are often the victims of dog attacks.

Our team is standing by to help you, too. As a matter of fact, we look forward to your call and the chance to serve you as we have served others in our community. While we certainly can’t guarantee any results, we may be the right law firm for you. The best way for us to find out is by calling us at 315-253-3293 to arrange a free consultation.

Yours,
The Michaels & Smolak Team

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He is one of the top lawyers in central New York & has the accolades to show for this, but in my book he's the top lawyer in the country. I am honored to have had the opportunity to work with Mr. Bersani & to have had him on my team!
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I admire the amount of background work he did which was instrumental in getting me a very good settlement. Also, having never been involved in a personal injury lawsuit, Michael was very patient explaining the legal issues. You're in good hands with Michael Bersani and the firm of Michaels & Smolak. Richard
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