Go to Home Page
Return to Dog Bite
WHO IS LIABLE? DOG BITE / ATTACK LAW - CALIFORNIA
A. Who is liable for a dog bite or attack?
A dog owner / tenant, landlord, employer, or government entity or its employee may be legally responsible depending on the circumstances.
1. Dog Owner Liability:
1a. Strict Liability - Dog Bite Statute: A dog owner is generally automatically liable (legally responsible) for damages / harm caused from a dog “bite”. Civil Code Section 3342(a).
Under this law, the dog owner is liable: no matter how carefully the owner guards or restrains the dog (See CACI No. 463); even if the dog was never vicious before (Civil Code § 3342(a)); and even if the owner did not know the dog was vicious (Civil Code § 3342(a)).1b. Strict Liability - Dangerous Propensities: A dog owner is automatically liable (legally responsible) for damages / harm caused from a dog if owner knows or should have known (had reason to know) about the dog's dangerous tenancies. See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116; Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 665.
But dog owner is not liable unless the dog bit the person while the bitten person was either:
(1) in a public place; or
(2) lawfully on private property (meaning the person was performing a duty required by law [example: postal worker]; or
(3) the owner expressly or impliedly invited the person on the property.
Civil Code § 3342(a).
See also Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358 [trespassers may not recover under dog bite statute].
Assumption of Risk and Comparative Fault: “The defenses of assumption of the risk and contributory negligence may still be asserted” in an action brought under Section 3342. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176.)
Employee is Bitten:
Dog Handling Employee: “A veterinarian or a veterinary assistant…has assumed this risk as part of his or her occupation.” This is coined the “veterinarian’s rule” (Nelson v. Hall (1985) 165 Cal.App.3d 709, 712, 715 “…a kennel worker, assumed the risk of being bitten or otherwise injured by the dogs… [at a] commercial kennel where she worked pursuant to a contractual boarding agreement…the dog bite statute (§ 3342) was therefore unavailable to [plaintiff].” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1132.).
Government Employee: Farnam v. State of California (2000) 84 Cal. App. 4th 1448: “A police dog handled by defendant, Joseph Morrison, a California Highway Patrol officer, bit plaintiff Ronald Farnam, a Los Alamitos police officer, at the scene of an arrest. Plaintiff sued Morrison and his agency, contending Morrison negligently handled the dog… [But] primary assumption of risk (the "firefighter's rule") bars the claim.” *** “The appellation "firefighter's rule" can be misleading because its application is not limited to situations involving fires or firefighting…”Such employees may, however, seek compensation against the employer via a Worker’s Compensation claim, however.
This law is commonly used to prove liability when the dog did not "bite" the person.
“California has long followed the common law rule of strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class.” Drake v. Dean (1993) 15Cal.App.4th 915, 921
"Any propensity on the part of a domestic animal, which is likely to cause injury ...is a dangerous or vicious propensity..." Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 437
"A possessor of a domestic animal is liable (no matter how careful he or she was to prevent the harm) if he or she ‘knows or has reason to know’ of the animal's "dangerous propensities abnormal to its class." Restatement Second of Torts, Section 509.
People who own, keep, or control animals with unusually dangerous natures or tendencies can be held responsible for the harm that their animals cause to others, no matter how carefully they guard or restrain their animals. CACI 462.
Excitable Playful Dog: In Northon v. Schultz (1955) 130 Cal. App.2d 488, 490, evidence that an excitable dog in the habit of jumping on people, which was kept in the basement as much as possible for that reason, dashed against the legs of plaiintiff at the first opportunity is sufficient to support a finding that the dog had a trait which made him dangerous to the safety of others.
1c. Negligence: A dog owner may be held liable for “negligence…predicated on the characteristics of the animal which, although not abnormal to its class, create a foreseeable risk of harm. As to those characteristics, the owner has a duty to anticipate the harm and to exercise ordinary care to prevent the harm.” Drake v. Dean (1993) 15 Cal.App.4th 915, 929.
This law is commonly used to prove liability when the dog did not "bite" the person.1d. Assault / Battery: A dog owner who uses a dog to intentionally harm another or intentionally put one in imminent fear of harm may be liable for battery and/or assault.
Leash Law Violation:
“Dog owner is in violation of local leash law when the dog is allowed to exist on public property without a leash by failure of the owner to take necessary action to prevent such an occurrence, and the owner may be liable for the acts of the unsecured dog…” Delfino v. Sloan (1993) 20 Cal.App.4th 1429, 1438 (plaintiff was injured when a dog attacked the wheel of a bicycle plaintiff was riding. The court upheld liability based on violation of a leash ordinance).
Brotemarkle v. Snyder (1950) 99 Cal. App.2d 388, 389-390: “The plaintiff had been riding a scooter when a dog, left unleashed and unattended in violation of a local ordinance, collided with him. The plaintiff was knocked to the ground and suffered serious injuries... the Second District held a violation of the statute constituted negligence per se...modern city conditions no longer permit dogs to run at large."
Business Negligence: Baley v. JF Hink & Son (1955) 133 Cal. App. 2d 102, 111: “[A] storekeeper must exercise reasonable care to protect a customer from harm by dogs or other animals, but is, however, not liable for an injury by a dog not owned or kept by the storekeeper, where he did not know and had no reason to know that the dog would commit such an injury * * * It was for the jury to determine whether or not said respondent was guilty of negligence in permitting dogs to be brought into the store during business hours whether on a leash or not.”
Negligence in Failing to Restrain Trained Attack Dog: See California Penal Code Section 399.5: "Any person owning or having custody or control of a dog trained to fight, attack, or kill is guilty of a misdemeanor ... if, as a result of that person's failure to exercise ordinary care, the dog bites a human being, on two separate occasions or on one occasion causing substantial physical injury."
People v. Nealis (1991) 232 Cal.App.3d Supp. 1 (1991) [criminal case where a woman commanded her Doberman Pinscher to attack two people].
Assault and/or batter are not commonly alleged because, among other things, insurance may not cover such intentional acts.
2. Landlord Liability for Dog Bites / Attacks:
2a. Noncommercial / Residential Landlord: A noncommercial landlord is liable for a tenant dog owner’s dog attack or bite on a third person if:
First, before the attack, the landlord had actual knowledge that the dog had a vicious propensity; and
Second, the landlord had the ability to timely prevent the foreseeable harm. That ability derives from the landlord's control over the property and ability to prevent dangerous conditions on that property (e.g. right to have dog removed from the premises such as, for example, by evicting the tenant).
Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 891-892; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507, 514; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152, 163; Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369.
Attack Off of the Property: Liability can be established even where the accident happens off the landlord's property. For example, in Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, a tenant's dogs attacked plaintiff four blocks away from where the dogs lived. Held: the landlord can be potentially liable. "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." In other words, a landlord can be held liable if a dog escapes as a result of broken or inadequate fencing.2b. Commercial landlord: A commercial landlord is liable for a dog attack or bite if he or she knew or reasonably should have known (i.e. has actual or constructive knowledge) of the dog's viciousness prior to the attack, and could have removed the dog before it injured the victim. Portillo v. Aiassa (1994) 27 Cal.App.4th 1128.
Neighbor’s Dangerous Dog: “[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.
In Portillo, cited above, a liquor store guard dog owned by tenant bit plaintiff): "[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."
Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360 (lease of a private condominium to a tenant for her own private residential use not impose a commercial duty of inspection discussed in Portillo to the lessor of a condominium; a commercial establishment is one that is open to the public).
3. Police Dog / Law Enforcement Service Dog- Excessive Force:
In furtherance of their duties, police may use K-9 dogs, so long as the use of that force is reasonable under the totality of the circumstances. Graham v. Connor (1989) 490 U.S. 386, 396. Police dog force that is unreasonable (or "excessive"), can create officer liability for unreasonable force, per the Fourth Amendment of the U.S. Constitution and the federal civil rights statute 42 U.S.C. Section 1983.
Silva v. Block (1996) 49 Cal. App. 4th 345, 351-352: “(5b) Plaintiffs' excessive force allegations are based upon the propriety of the use of police dogs…see Quintanilla v. City of Downey (9th Cir.1996) 84 F.3d 353 [actions of officers in releasing dog did not constitute deadly force]; Fikes v. Cleghorn (9th Cir.1995) 47 F.3d 1011 [same]; Chew v. Gates (9th Cir.1994) 27 F.3d 1432 […plaintiff who had suffered severe dog bite wounds, finding questions of fact regarding whether the use of a police dog constituted excessive force…or use of deadly force… *** …The question of liability to individual class members would depend upon the particular conduct in which the suspect was engaged and the facts apparent to the handler before the police dog was employed. (See People v. Rivera (1992) 8 Cal. App.4th 1000 [officer acted reasonably in ordering police dog to search, bite and hold a fleeing burglary suspect thought to be armed]; Mendoza v. Block (9th Cir.1994) 27 F.3d 1357 [deployment of police dog was objectively reasonable where suspect was fleeing arrest for bank robbery, deputies believed he was armed, suspect did not surrender when warned he would be bitten if he did not come out of the bushes, and the suspect was hiding on private property].) …”
Government service dog owner – Dog bite statute : Generally, the dog bite statute does not apply to bites involving military or police work [Civil Code § 3342(b)] but may apply where the victim is, for example, an innocent bystander [Civil Code § 3342(c); City of Huntington Beach v. City of Westminster (1997) 57 Cal.App.4th 220, 227 fn. 4] or where the government owner did not adopt a written policy on the necessary and appropriate use of a dog for the police or military work [Civil Code § 3342(d)].
Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change. This advice is based on California law. No legal advice is given and no attorney/client or other relationship is established or intended. The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own legal counsel prior to relying on any information on this website.
Copyright 2014 by M.B. Tozer Esq.
Return to Dog Bites