Miller v. Wamp
2025 NY Slip Op 03877
| N.Y. App. Div. | 2025Background
- Edward Miller, the plaintiff, was walking his two leashed dogs at a NY State campground.
- Defendants, Stephen and Suzanne Wamp, had their large rottweiler mix restrained by a pinch-style collar and a clothesline tied to a tree at their campsite.
- The Wamps’ dog broke free, attacked one of Miller's dogs, and in Miller's attempt to intervene, he was knocked over and bitten.
- Miller sued the Wamps, alleging liability for injuries caused by their dog.
- The Wamps sought summary judgment to dismiss the complaint, arguing insufficient evidence of their dog’s vicious propensities or their knowledge thereof.
- The trial court denied the Wamps’ motion, and they appealed to the Appellate Division, Fourth Department.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dog's Vicious Propensities and Knowledge | Wamps knew or should have known of their dog's dangerous behavior, having used special restraints and training | The dog was not vicious; measures were merely precautionary | Triable questions exist as to both viciousness and knowledge; summary judgment denied |
| Viability of Negligence Claim | Plaintiff can pursue ordinary negligence based on lack of due care | Strict liability is required for dog bite cases; negligence not available | Negligence claim remains viable under new appellate authority |
Key Cases Cited
- Collier v. Zambito, 1 NY3d 444 (N.Y. 2004) (establishes liability for dog owners aware of their animal's vicious propensities)
- Modafferi v. DiMatteo, 177 AD3d 1413 (4th Dep't 2019) (supports considering leash-pulling as evidence of vicious propensity)
- Long v. Hess, 162 AD3d 1646 (4th Dep't 2018) (outlines how animal behavior may indicate risk)
- Lewis v. Lustan, 72 AD3d 1486 (4th Dep't 2010) (addresses evidence needed for knowledge of vicious propensities)
- Pollard v. United Parcel Serv., 302 AD2d 884 (4th Dep't 2003) (similar proposition re: knowledge and propensities)