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DOG BITES / INJURIES
Being bitten by a dog can be a horrifying experience, especially for young children who are often the victims of canine attacks. However, biting a victim is not the only way a dog can cause serious injuries. An owner may be liable for injuries resulting from a dog that knocked the plaintiff down by leaping on or otherwise coming into contact with the plaintiff, causing the plaintiff to fall when the plaintiff tried to flee from the dog, or tripping the plaintiff with the dog’s leash. California law establishes liability on the dog owner under a strict liability, negligence or negligence per se theory.
THEORIES OF LIABILITY FOR THE DOG OWNER
STRICT LIABILITY
California law follows a theory of liability for the owner of a dog that bites someone known as “strict liability.” “Strict liability” means that regardless of the owner’s prior knowledge/lack of prior knowledge of the viciousness of his/her dog, regardless of whether the dog ever bit someone before, and regardless of whether the owner warned/failed to warn the victim of the dog’s propensity to bite, the owner will automatically be held liable if their dog bites someone. There is no such thing as the “one bite rule” in California under a strict liability theory. If your dog bites someone, you are liable, subject to a few defenses (See Dog Bite/Attack Defenses). See California Civil Code Section 3342 for the language of California’s “Strict Liability” statute. However, there is an important exception to this very strict rule. The exception is known as the “Veterinarian’s Rule.” The veterinarian’s rule states that if the victim of a dog bite is one who is a professional trained to handle dogs (e.g., a veterinarian, groomer, kennel employee, etc.) and the dog was within the victim’s exclusive control, custody and care, then such a victim cannot recover under a “strict liability” theory because that victim inherently assumed the risk of being bitten as a routine consequence of his/her job. The victim would have to pursue his/her claims under a negligence theory of liability (discussed below). Focus, though, on the very specific requirements of the “veterinarian’s rule”: (1) The victim must be one who works with dogs in their line of business/service offerings and the defendant paid/contracted with the victim to service their dog (i.e., a paid groomer, dog walker, dog boarder, etc.) and (2) the dog must be within the exclusive custody of the victim (i.e., if a groomer is approaching a dog to place the dog within his/her custody but the dog bites before the groomer is able to do so, then this required element of the “veterinarian’s rule” has not been met, because attempting to place a dog within one’s custody is not the same as actually placing the dog within one’s custody).
NEGLIGENCE
The plaintiff who is seeking damages for injuries resulting from a dog bite under a negligence theory may demonstrate:
(1) The dog in question had a dangerous propensity for viciousness; (2) The dog owner knew or should have known of the dog’s dangerous propensity; (3) The dog owner failed to adequately warn the victim of the dog’s propensity to bite; and (4) the dog bit the victim. Alternatively, the victim of an injury resulting from the actions of a dog may show (1) the owner owed a duty of care to the victim (i.e., the owner was obligated not to allow her dog to harm the victim – almost always shown); (2) the owner breached that duty (e.g., the owner failed to properly restrain his/her dog on a leash); and (3) the owner’s breach resulted in the dog causing harm to the victim (e.g., an unleashed dog jumped on the victim knocking her down resulting in a broken hip).
The following cases are helpful resources in establishing the owner’s knowledge of the dog’s dangerous propensities. In the cases below, the court found that the following facts placed or should have placed the owner with knowledge of the dog’s dangerous propensities:
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Keeping the dog solely as a “guard dog” and posting a sign that reads “Beware of Dog” – Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1135
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Keeping people away from the dog – Northon v. Schultz (1955) 130 Cal.App.2d 488.
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The owner’s knowledge of the dog’s dangerous propensities can be implied by the dog’s: (1) reputation (2) type and size or (3) proving that the dog is regularly chained or muzzled – Smith v. Royer (1919) 181 Cal. 165, 170.
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The owner of the dog told people that his dog may bite them – Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 729
THEORIES OF LIABILITY FOR A LANDLORD OF PROPERTY
Generally speaking, a landlord is not, per se, liable for the actions of a tenant’s dog when it bites someone. However, there are exceptions to this general rule. Various California courts have found liability on the part of the landlord in fact-specific situations. For example, a landlord caring for a tenant’s dog while the tenant was away may inculpate the landlord under a negligence theory if the dog bites someone or if the landlord failed to repair a gate on the property and the dog escaped and bit someone the landlord may likewise be liable under a negligence theory.
DUTY OF RESIDENTIAL LANDLORDS
In Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, the court found that if a landlord or his agent had actual knowledge of a tenant’s dog’s viciousness and could have removed that dog before it bit someone then the landlord can be held liable. The court held that “a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required. For this reason we hold that a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.” Keep in mind that landlord liability can be found where the bite happens off of the rented property.
In Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, the plaintiff was bitten by a tenant’s dog approximately four blocks from the property. The plaintiff sought recovery from both the tenant and the landlord. The court stated: “If the dog is taken on a leash by its owner, off the premises, prevention of an attack by the dog may be beyond the landlord’s control. But if the dog escapes the landlord’s property because of defects in that property, the landlord is liable for the off-site injuries.” Thus, as mentioned above, a landlord must repair dilapidations on the property that may allow a dog to escape and cause injury, if not, he may be liable for damages caused by the dog.
DUTY OF COMMERCIAL LANDLORDS
A commercial landlord may be held liable for a dog bite if he had actual or constructive knowledge of the dog’s propensity for violence before the attack, and could have removed the dog prior to it harming the plaintiff. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court remarked: “We hold that a landlord has a duty to exercise reasonable care in the inspection of his commercial property and to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises.” A landlord could not escape liability by failing to inspect the property and then asserting that he had no actual knowledge of the vicious dog.
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