Who’s Your Doggy? Civil Liability for Dog Bites in California

December 20, 2019

For those of you who are dog lovers like me, you know that we would do just about anything for our dogs.  Fortunately or unfortunately, this also applies to assuming civil liability if our best friend decides to take a chunk out of someone. 

Defense counsel who are defending cases where a plaintiff has sustained injuries caused by a dog bite face two primary obstacles: 1) the strict liability standard imposed by California statute on dog owners for injuries caused by their pets; and 2) the public perception that certain dog breeds are more vicious and prone to biting people.  The former does not allow much wiggle room if defense counsel is representing the dog owner (often through a homeowners’ insurance policy), but the owner of the property where the bite occurred (such as a landlord, or by extension, the owner’s property manager), can escape liability if they did not have any actual notice of the dog’s propensity for viciousness.  This can usually be determined by a motion for summary judgment. 

But the latter is especially relevant given the many media reports of pit bulls (or similar breeds) attacking children or even their owners, often times seemingly without provocation or warning.  If you are representing a potential defendant in a dog bite case, the differing legal standard imposed by the courts makes all the difference in whether you have a defensible case or a case that should be settled.

California’s Strict Liability Standard for Dog Owners

The owner of any dog is liable for the injuries and damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousnessCal. Civ. Code § 3342, subd. (a) (emphasis added) (A person is lawfully upon the private property of an owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner).  The purpose of this statute is to allow the person who is actually bitten to file suit without the usual necessity of proving the previous vicious character of the dog, or the knowledge of its dangerous habits on the part of the owner.  Hicks v. Sullivan (1932) 122 Cal. App. 635, 639.  The statutory language specifically provides that postal carrier or other delivery persons, as well as visitors (“by invitation, express or implied”), within its definition of “lawfully in a private place.”

Thus, there is no “one bite rule” in California[1]; the Civil Code imposes a strict liability standard for a dog owner for injuries caused by the bite of his or her dog.  Therefore, a dog owner is responsible for the injuries caused by his or her dog’s biting a person even if the dog had never bitten any person before, or if the owner was at not aware of a prior bite. 

According to the language of the statute, this strict liability standard applies if the dog attack occurs in a public place or the person is lawfully in a private place, including the dog owner’s own property.  But what about guard dogs attacking an intruder on the owner’s property?  No civil liability would attach – and a defense could be raised – because an intruder is not “lawfully in a private place.”[2]  By contrast, liability would attach if the dog bites a guest of his or owner, or someone who is allowed to enter the property by law, such as a mailman, or package delivery driver.

Although a strict liability standard applies, the liability of the dog owner is not absolute.  Other defenses can be raised on behalf of the dog owner, for example, assumption of risk or comparative fault.  See Smythe v. Schacht (1949) 93 Cal. App. 2d 315, 321.

What About Certain Breeds ‘Known’ to Be Vicious?

According to a study from the Center For Disease Control (CDC)1, approximately 4.7 million dog bites occur in the United States each year, and 800,000 of those bites result in medical care. The U.S. population is approximately 325.7 million people as of 2017.  Certain dog breeds, for example, pit-bulls, Rottweilers, Doberman pinschers, and German Shepards, who are often kept as guard dogs or security dogs, are perceived by the general public as being more vicious and/or more likely to bite or attack people.  Yet, statistically in the United States, only two of these breeds are in the top 10 in terms of attacks on people,[3] albeit pit-bulls lead the pack (pun intended) in bites by a wide margin.

California law adheres to its strict liability standard regardless of the breed or its propensity or reputation for viciousness.  ‘”The liability of the keeper is absolute, for the gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with knowledge of the vicious propensities.  In such instances the owner is an insurer against the acts of the animal, to one who is injured without fault, and the question of the owner's negligence is not in the case.”  Hillman v. Garcia-Ruby (1955) 44 Cal. 2d 625, 626; see also Buffington v. Nicholson (1947) 78 Cal. App. 2d 37, 41-42; Menches v. Inglewood Humane Soc. (1942) 51 Cal. App. 2d 415, 417; Radoff v. Hunter (1958) 158 Cal. App. 2d 770, 773 (The (a) vicious propensities and dangerous character of a dog and (b) knowledge thereof by his owner may be inferred from evidence that the dog was kept (1) tied (2) as a watchdog and also (3) from his size and breed [a 75 pound German police dog]). 

Who Else Can Be Liable for a Dog Bite?

  1. Property Owners/Landlords of Private Property

Often times, the dog owner is not the only potential defendant in a civil suit by the dog bite victim.  Many dog owners are not insured or do not have the financial means to respond to a civil suit or to satisfy a civil judgment.  Therefore, plaintiffs often file suit against the person or entity who owned or managed the property where the bite occurred -- if the incident occurred on private property.  This is often the case with landlords or homeowners’ associations, or even sometimes, neighbors.

However, unlike with dog owners, to impose liability on someone other than the owner, even a keeper (someone who is entrusted with the care of a dog by the owner), previous knowledge of the dog's vicious nature must appearLundy v. Cal. Realty (1985) 170 Cal. App. 3d 813, 821 (holding summary judgment was properly granted a landlord where “aside from what was in the handwritten rental agreement, defendant property owners knew nothing whatever about the dog, there was nothing in the facts indicating defendant property owners knew either the dog's size or age.  He might have been a playful pup for all they knew.  Neither do we believe judicial notice may be taken that all German shepherds are dangerous.  Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder.  It is not uncommon for an owner of a St. Bernard or Great Dane to name the dog Tiny”) (emphasis added). 

Under traditional premises liability law, liability of property owners requires notice, either actual knowledge or constructive knowledge by the owner of a dangerous condition on their property. Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203. Notice can come in the form of a property owner receiving a specific complaint about or creating the condition, i.e., actual knowledge, or by the knowledge acquired by the owner’s required duty to inspect, i.e., constructive knowledge.  Lucas v. George T.R. Murai Farms, Inc. (1994) 15 Cal.App.4th 1578, 1590. 

However, in the context of potential liability for dog bites, courts require actual knowledge of the dog’s past viciousness, not constructive knowledge. The differing legal duty required of owners is based on public policy grounds.  As one court put it, 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.  Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504, 514 (emphasis added).

The actual knowledge requirement can be satisfied by circumstantial evidence that the property owner must have known about the dog's dangerousness as well as direct evidence the property owner actually knew.  However, actual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture.  Only where the circumstances are such that the defendant must have known and not should have known will an inference of actual knowledge be permitted.  Donchin v. Guerrero (1995) 34 Cal. App. 4th 1832, 1838; Yuzon v. Collins (2004) 116 Cal. App. 4th 149, 163 (finding that a landlord only had a duty of care to protect the invitee if he had actual knowledge of the dog's vicious nature in time to protect against the dangerous condition on his property.  He did not have a duty to inspect the premises. 

In addition, a landlord has no duty to warn a prospective tenant of the presence of a vicious dog in the neighborhood.  Wylie v. Gresch (1987) 191 Cal. App. 3d 412, 414 (emphasis added). 

  1. Homeowners Associations and Neighbors/Other Tenants

The same reasoning supporting the standard for a property owner’s legal duty has also been applied to homeowners’ associations and neighbors.  For example, in an unpublished decision, Edwards v. North Country Village Homeowners Ass’n (2001) 2001 Cal. App. Unpub. LEXIS 1118, a homeowner’s association was granted summary judgment after asserting it was undisputed that they had no knowledge that the dog had bitten or attacked anyone or had dangerous or vicious propensities.  The trial court found there was no evidence the association knew of the dog’s dangerous propensities and without such knowledge, they were not liable and had no duty to enforce the CC7Rs or the pet rules.  Id. at *4-6; See also Cody F. v. Falletti (2001) 92 Cal. App. 4th 1232, 1237 (holding that access easement owners [property owners and subdivision association members] did not have any duty of care to prevent a dog bite injury where owners did not create the hazard, did not own the dogs, had no interest in the land from which the dogs escaped, and did not own the road where the attack took place). 

Conclusion

If you are the dog owner, keep a tight leash on your pet as you are strictly liable if he or she attacks someone.  If you are the owner of private property, or manage private property, and a dog attacks someone on the property, unless you know the dog and know it is vicious or has a history of biting, California courts have put a leash on your potential liability.

 


[1] Certain jurisdictions adhere to the common law “one bite rule,” i.e., there is no liability for the dog owner unless they knew of the dog’s propensity for viciousness beforehand.  This commonly translated to whether the dog had bitten anyone else before.  If the dog had never bitten anyone else before, no liability would attach, thus dogs essentially had “one free bite.”

[2] The undersigned defensed a civil case in which he represented the property owner whose pit-bull bit had significantly injured his neighbor who had trespassed onto the property ostensibly to ‘save’ the dog from being eaten because she believed her neighbor (being Asian), habitually ate dogs.  She was also drunk at the time of the attack.

[3] www.Puppy Lover News.com