You have to prove the owner had proof their dog had vicious propensities.
I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. Feel free to check out my web site and contact me. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.
You have to prove vicious propensities. It may be easier to prove considering the dog involved was a pitbull. This excerpt from New York Jurisprudence, Second Edition may prove helpful to you:
"While some courts have suggested that the vicious propensities of certain animals are so well-known as to be almost a subject of judicial notice, there is no authority for the proposition that judicial notice may be taken as to the ferocity of any particular type of domestic animal or pet. [See Sorel v. Iacobucci, 221 A.D.2d 852(3d Dep't 1995)]. The New York Court of Appeals has refrained from holding that any particular breed or kind of domestic animal is dangerous, nor has it held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class." See NYJUR ANIMALS § 164.
Personally, I like your chances as a plaintiff.
IMPORTANT: Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely on this response. Mr. Murray's response was generated without conducting a full inquiry as would occur during an attorney-client consultation. It is likely that the response above may be made less accurate, or become entirely inaccurate, as you, i.e. the questioner, disclose additional facts that should only be discussed during a private attorney-client consultation. I strongly recommend that you consult an attorney who is licensed to practice law in your state (or, in the case of immigration law, an attorney in ANY state), whereupon all relevant facts will be discussed. All responses posted by Mr. Murray on Avvo.com are intended as general information for the education of the public, and not for any specific individual. For persons located in New Jersey: To the extent that Mr. Murray's profile can be considered an advertisement in New Jersey, which is denied, be advised that NO ASPECT OF THIS ADVERTISEMENT HAS BEEN APPROVED BY THE SUPREME COURT OF NEW JERSEY. Furthermore, the selection methodology for the SuperLawyers' "Rising Stars" awards is set forth at length at this website: http://www.superlawyers.com/about/selection_process.html.
This is not a personal injury claim, but actually one for property damage. Speak with a general practice attorney.
Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.
I suggest you first get your half before actually starting any legal action for the other half. Any lawsuit will have to sound in negligence as the owner would most likely deny any knowledge of vicious propensity, the latter which should be checked with local animal control records.
If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.
A roundup of the best tips and legal advice.