Pisciotta v. Parisi

— In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (Becker, J.), dated April 14, 1988, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $150,000. Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event. We agree with the defendant’s contention that the trial court erred in refusing to charge the doctrine of comparative negligence to the jury (see, CPLR 1411). Although the evidence adduced was conflicting, a reasonable view thereof establishes that the plaintiff approached and attempted to pet a chained, barking dog at a time when the son of the dog’s owner was engaged in a loud altercation nearby. Based upon this evidence, it cannot be said that no rational trier of fact could have concluded that the plaintiff was negligent, and that her negligence may have contributed to her injuries. Thus, a comparative negligence charge should have been given (see, Willis v Young Men’s Christian Assn., 28 NY2d 375, 378). However, we would note that the trial court did not err in denying the defendant’s request that the issue of the plaintiff’s implied assumption of the risk be submitted to the jury. While it is well established that the doctrine of implied assumption of the risk may be a viable defense in so-called dog bite cases (see, Arbegast v Board of Educ., 65 NY2d 161; Smith v Sapienza, 115 AD2d 723), the evidence adduced at the trial was insufficient to support such a defense (see, Graham v Murphy, 135 AD2d 326; McCabe v Easter, 128 AD2d 257). Specifically, while the defendant testified that a "Beware of the Dog” sign was posted somewhere on the premises, there was no evidence presented that the plaintiff should have been aware of the existence of that sign. Nor was there evidence adduced to establish that the plaintiff was aware of the dog’s alleged vicious propensities. Given the absence of such evidence, an assumption of the risk charge was not warranted (see, Graham v Murphy, supra; McCabe v Easter, supra). Finally, we conclude that the trial court properly excluded a photograph of the plaintiff from evidence, as the defendant failed to lay an adequate foundation for its introduction (see, Moore v Leaseway Transp. Corp., 49 NY2d 720, 723). Mollen, P. J., Brown and Lawrence, JJ., concur.