When dogs attack: Despite a sound pet policy, owner loses civil case

It started off as a picturesque afternoon: Two Long Island grandparents took their 4-year-old grandson and 14-month-old granddaughter for a stroll. But the idyllic scene didn’t last long.

As the toddler road his tricycle along the sidewalk, three dogs who had escaped from a nearby yard approached the family. The dogs, a bulldog and a male and female Rottweiler, attacked the family, knocking them to the ground. They desperately tried to flee to their nearby home, but the dogs refused to let up.

The dogs chased the family up the driveway, through their back door and into the kitchen. The grandmother shielded the granddaughter while the grandfather tried to do the same for the young boy. It was a valiant effort, but the female Rottweiler managed to get a hold of the boy, biting his face, torso, and buttocks, and nearly severing his ears.

The grandfather finally chased the aggressive dogs from the house, with two returning to their owner’s home and the other found in a nearby yard. When a neighbor heard the screams from his basement, he ran upstairs, opened the door, and found one of the Rottweilers in his path. He tried to shoo the animal away with a baseball bat, but the dog refused to move. The police arrived on the scene shortly thereafter and pepper-sprayed the dog, but even then the animal wouldn’t budge. It was only when the dog’s owner showed up that the Rottweiler finally retreated.

“It was a bloody mess in that house,” said Shari Shapiro, another neighbor who heard the commotion. “[The boy’s] clothes were torn off his little body. He was sobbing. He was in shock.”

The toddler was rushed to the emergency room, where he underwent five hours of surgery and needed more than 250 stitches to reattach his ears and repair the chunk taken out of his left cheek. Meanwhile, police arrested the dogs’ owner, Lawrence Kelly, Jr., for allowing the animals to run wild.

As it turns out, Kelly was already under a court order to keep the female Rottweiler kenneled or muzzled at all times, stemming from an incident two years prior when the dog attacked and killed a neighbor’s pet rabbit. After this case, Kelly ultimately agreed to a settlement that led to all three dogs being euthanized. In return, all criminal charges were dropped. It was determined that the dogs had been in an enclosed backyard but somehow managed to push open the gate on their own.

Accidents as horrifying as these never truly end with criminal proceedings, however. It was only a matter of time before the family filed a civil lawsuit. In an interesting plot twist, the family didn’t just sue the aggressive dogs’ owners: They also sued Nassau County, Kelly’s landlord, and his two roommates, claiming negligence, strict liability, and violation of the code of the Town of Hempstead.

Naturally, the landlord and Kelly’s roommates denied responsibility. Kelly was the sole owner, making the dogs his sole responsibility. What’s more, the lease explicitly prohibited the tenants from keeping dogs on the property, therefore absolving the landlord from culpability.

But the court disagreed.

“It cannot be said, as a matter of law, that [the roommates] did not harbor the dogs,” wrote the New York Supreme Court in its June 2015 decision. “One harbors a dog by ‘making it a part of his (or her) household’, even if he or she does not assume control over the animal.”

And the lease? It still was insufficient to protect the landlord. “(Lawrence) Etkind, as the landlord, was authorized to remove the dogs which… Kelly harbored in violation of the lease,” the court determined.

This case is a tricky one. For all intent and purposes, the landlord thought he was doing the right thing by creating an ironclad lease that prohibited dogs on the property. But the court determined the landlord had enough advance knowledge about the dogs that he could have taken action to prevent the attack.

Tips to Strengthen Your Pet Policy

For any property owners and managers considering allowing pets on the premises, here are a few things to remember:

• Carefully consider which pets to allow — It seems unfair to discriminate against man’s best friend, but the reality is some dog breeds are more prone to attack than others. Before granting blanket approval, consider which types of pets tenants will bring to the property. In this case, there were two Rottweilers and a bulldog — two types of dogs with known tendencies for aggressive behavior. Specify any restrictions in the pet clause of the lease. A note of caution: If pets are allowed under a tenant’s original lease, move in with their pets, and then in subsequent years the property owner changes the pet policy on existing tenants (even upon lease renewal), courts have typically found in favor of the renters (assuming no major incident occurred during the original lease period).
• Review insurance policies — If you will allow a dog on the property, be sure to carefully review your building or homeowners insurance policy. Many policies do not allow dogs at all. Others only allow dogs of specific breeds and/or size. Ensure the types of animals your tenant seeks to bring on site fall within the perimeters of your homeowner’s policy in case of an accident or injury.
• Require tenants to purchase a separate insurance policy — Homeowner’s insurance will only protect owners to a certain degree. If you’re going to let tenants have pets, require the tenants to get renters insurance and submit proof to you prior to bringing any pet on to the premises.
• Include language in lease to protect the owner from unwelcome pets. — As noted above, this case involved a lease that clearly prohibited dogs. The lease could have, and apparently should have, included language to protect the landlord and give him the authority to forcibly remove the dogs from the property if needed. A strict pet policy, where terms are reasonable and specific, provides property owners with recourse to remove the pet, either by calling animal control or by beginning eviction proceedings. In this case, where one of the pets in question had a known history of violence and the tenant was improperly keeping the dogs in violation of an outstanding court order, the court most likely would have supported the landlord’s action. It is important, however, that owners take action as soon as they learn of the unauthorized pet. In some states, owners only have a set amount of time to enforce no-pet clauses. In New York, where this case took place, that period is only three months.

Smart owners and managers know to do their due diligence before selecting tenants, and then writing rock-solid leases to protect their interests.  The same also should be done when considering to allow a tenant’s furry friends to live on the property.

Do you do the equivalent of background checks on prospective tenants’ pets? Do you have any advice we didn’t cover in this article? We’d love to hear about it in the comment section below.

NOTE: This blog submission is only for purposes of disseminating information. It does not constitute legal advice. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.