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This time, bite's a crime that doesn't pay

Ellis Henican

February 15, 2008

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Dear Danielle:

I feel terrible for you. Any decent person would.

Getting chomped by an 85-pound Labrador mix? No little girl deserves that.

But I'm sorry, sweetheart. You can't make Mr. Mendez pay for what Scooter did.

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Not this dog. Not this time. Not unless and until Scooter-the-huggable-toy-store-dog does it again, at which point Scooter's owner, Juan Abel Mendes of Penny Whistle Toys in Bridgehampton, can be taken for every hand-painted German locomotive and every brightly colored retro block set in his tony little shop.

Because then, Danielle, Scooter will be a recidivist attacker, a two-time loser in the vicious-dog sweepstakes, a flouter of the 200-year-old One-Bite Rule, an animal whose owner is on notice that a dangerous dog is present where children may gather - and whoa now, Mr. Responsible Dog Owner! That's not a place for a bite-prone beast to lounge.

But until that happens, Danielle, I'm afraid there's no payback in court for you. Only sympathy.

You and your family aren't getting any seven-figure recoveries for this unfortunate tort.

Even if you did tell your commercial-litigator father after you got bitten by Mr. Mendez's dog: "He has to pay!" (Yes, even the 8-year-olds are naturally litigious in some corners of New York!)

Anyway, Danielle. The whole world knows now about your trip to the toy store.

Penny Whistle is a wonderful place, isn't it? Started on Madison Avenue by the wife of Tom Brokaw. Sold to Mr. Mendez, a resourceful Cuban refugee who started in the store as a window dresser and showed such an instinct for the whims of indulgent parents, he ended up saving enough money to buy the place.

On that terrible day, Danielle, you came to the store with a friend and her mother. You had a lollipop in your mouth. Mr. Mendez was behind the counter. Scooter was sprawled on the floor, two paws in front of him, his two rear paws tucked underneath. He was tied loosely with a 20-foot leash.

There'd never been any problems with this dog before. Mr. Mendez had adopted him nearly five years earlier from the East Hampton Animal Rescue Fund. He came to work with Mr. Mendez, on average, a couple of times of week.

He was that kind of dog. It was that kind of store.

We may never know why this day was different from others. From the court record, we know this much.

Scooter sat up as Danielle approached him. She let him sniff her knuckles. She knelt in front of him. She bent to pet Scooter. She scratched behind his ears. She patted his back. The little girl hugged and kissed the dog on the sweet June day.

The scene was so precious that Carol Weiner, the friend's mom who'd taken her there, remarked to Juan Abel Mendez how amazing it was, this instant bond between animals and children.

Suddenly, without any warning, Scooter emitted a little growl.

Then, chomp!

The dog bit Danielle's right cheek.

Bit her hard.

So hard that when she got to the emergency room, she needed 50 stitches on her cheek, both inside and out.

There was no decision yesterday as Bernstein v. Penny Whistle Toys was argued in Albany before the state Court of Appeals.

But from the questions the judges were asking - and the interim decision from the Appellate Division - there was the clear sense that no court is about to overturn the One-Bite Rule.

That general legal principle, embedded in the Common Law and Collier v. Zambito, has been a fact of life in New York for at least two centuries now. It says that an owner can't be held liable for a dog bite unless he KNOWS he has a vicious dog.

The best evidence possible? The dog has bitten before. Otherwise, every pet owner is guessing what his or her dog might do - and risking huge lawsuits for guessing wrong.

So yesterday, the state's highest court was asked to make a decision between two compelling sympathetic parties - the decent owners of New York and a dog-bitten little girl.

Their hearts are with you, Danielle. I can tell you that much.

But their heads have clearly gone off with the dogs.