Municipality, its police department and a police officer sued for injuries plaintiff suffered after being bitten by a police department K-9 Unit police dog

Plaintiff sued the municipality and others [Defendants] to recover damages for injuries he allegedly sustained when he was bitten by a municipality police department's police dog.

The incident occurred during a training exercise in explosives detection in which the police dog and his handler were participating. As part of the training, the police dogs were off-leash. Plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by the police dog. 

Supreme Court denied Defendants' motion for summary judgment dismissing the complaint and Defendants' appealed the court's decision. The Appellate Division reversed the Supreme Court's order "on the law, with costs" and granted the Defendants' motion for summary judgment.

Citing Applewhite v Accuhealth, Inc., 21 NY3d 420, and other decisions, the Appellate Division, said "[w]hen a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty* to the injured party".

The Appellate Division noted that the Defendants had established that its police officer "was an attendee at a training program" at a New York State facility and that its police officer "merely participated in the training exercise" and that he "took direction" from a New York City Police Department canine instructor.

Here, said the court, Defendants established, prima facie, that they did not owe a special duty to the Plaintiff as there was no evidence that the police officer took positive control of a known and dangerous safety condition which gave rise to Plaintiff's injuries.

As the Plaintiff failed to raise a triable issue of fact, the Appellate Division opined the Supreme Court should have granted the Defendants' motion for summary judgment and dismissed the complaint.

*  The Appellate Division's decision noted that such a special duty is present where the defendant "took positive control of a known and dangerous safety condition".

Click HERE to access the Appellate Division's decision posted on the Internet.