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Amherst sued over dog park accident that left visitor with broken leg

A Cheektowaga woman who said she broke a bone in her lower leg after she was knocked down by a group of dogs at an East Amherst dog park has sued the town and the association that runs the park.

Mary Busenlehner, 72, said the town and the Amherst Paw Park Association are responsible for the injury she suffered on Sept. 1 at the Paw Park at 550 Smith Road, off New Road and near the Glen Oak Golf Course, because they failed to use "reasonable care" in designing, building and operating the park.

In her lawsuit, filed last week in state Supreme Court, Busenlehner said she went to the off-leash dog park at about 6 p.m. that day to give her dog some exercise. She owns a 65-pound pit bull mix, according to the attorney representing the town.

She said she was walking toward a bench near the gate leading to the large dog section of the park when a group of dogs heading in that direction knocked into her from behind, causing her to fall and to suffer a pilon fracture in her right leg. That's a break in the tibia, or shin bone, near where it meets the ankle joint and it often requires surgery to repair.

Busenlehner notified the town of her intention to sue last November. Her attorney, Alison K. Haseley of Collins & Collins, did not respond to a message seeking comment.

The Paw Park held its grand opening in June 2011. The park was years in the making as the association, a group of volunteers, sought a location, worked to receive permission from town officials to open the park and raised money for the project.

The town owns the land the dog park was built on but the association – through the non-profit Amherst Conservation, Recreation & Parks Foundation – built and maintains the park. The lawsuit also names the foundation.

The association has a list of rules posted at the park and on its website. A handout available at the park entrance states: "Use of this off-leash recreational facility is at your own risk. All park users and dog owners assume all risk and liability related to their presence in the park. Dog handlers are financially and legally responsible for damage and injury inflicted by their pets."

The town's outside counsel, Michael J. Chmiel, said he doesn't believe the town faces any legal exposure because no one did anything wrong to cause Busenlehner's injury.

Her argument, according to Chmiel, is that the benches in the park shouldn't be located where they are. But, he said, it's a dog park and there's no way to entirely separate the benches from the park's canine visitors.

If anyone is at fault, it could be the owner of the dog or dogs that bumped into Busenlehner, he said. The lawsuit filed by Busenlehner doesn't name the owners of any of the dogs that knocked her over.

"You assume the normal risks of going into a dog park," Chmiel said.

Peter Warn, a longtime organizer with the Paw Park Association, said he was not previously aware of the lawsuit. He said he believes this is the first time someone was seriously hurt at the dog park and the first time anyone sued the park association.

He said dogs in the park often run around after each other in what is typical behavior for dogs in this type of social setting.

"They get together, play and rampage, particularly the bigger ones. They're chasing whoever's in the lead, or each other, and not really looking where they're going," Warn said. "That's why we don't like kids in the park. It's not antagonism – it's play."

Warn said he doesn't believe the association is legally at fault for Busenlehner's injury.

"No, because it's natural play and activity that happens there," he said.


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