There are two excellent articles for attorneys: 87 A.L.R.4th 1004 (1992) [American Law Reports ALR4th Volume 87 (1992) Current through the September, 1998 Supplement Annotation LANDLORD'S LIABILITY TO THIRD PERSON FOR INJURY RESULTING FROM ATTACK ON LEASED PREMISES BY DANGEROUS OR VICIOUS ANIMAL KEPT BY TENANT by Danny R. Veilleux, J.D.; and 89 A.L.R.4th 374 (1992) American Law Reports ALR4th Volume 89 (1992) Current through the September, 1998 Supplement Annotation LANDLORD'S LIABILITY TO THIRD PERSON FOR INJURY RESULTING FROM ATTACK OFF LEASED PREMISES BY DANGEROUS OR VICIOUS ANIMAL KEPT BY TENANT by Danny R. Veilleux, J.D.
Here is part of the above article as supplemented:
In addition to showing that defendant landlords had knowledge of previous attacks by their tenants' dogs, injured parties may establish that the landlords knew about the dogs' vicious tendencies by showing that the landlords observed the dogs threatening or lunging at others, or snapping, growling, or acting ferocious. To support the contention that the landlords had such knowledge, the injured parties may also prove that the landlords were aware that their tenants posted "Bad Dog" or similar warning signs, or that their tenants intended to use the dogs as guard dogs. In cases involving landlords who employ security personnel or property managers to supervise or maintain apartment complexes, trailer parks, housing on military bases, or similar multiple-dwelling residential areas, the victim of an animal attack may be able to show that the landlord or his or her agent received oral or written reports regarding the animal's prior attacks or vicious behavior.
Proof that a landlord frequently visited the owner of an animal on the leased premises may also be presented to support the claim that the landlord must have known that the animal was vicious or dangerous.
Although a court might take judicial notice of the fact that a particular breed of dog is dangerous, so that knowledge of the animal's vicious propensities may be implied due to the type of dog involved, a number of courts have refused to do so. One court, for example, declared that dogs, like other domestic animals, were presumed to be harmless at common law, and ruled that the presumption must prevail regardless of the dog's breed or size, absent a statute to the contrary, or a showing that the landlord had actual knowledge of the dog's vicious or dangerous propensities. Courts have refused to imply that landlords had knowledge of a dog's vicious tendencies, based on the particular breed involved, in cases to recover for attacks by a German shepherd, a Doberman pinscher, and a dog with pit bull ancestry.
The opposing parties may establish whether landlords negligently allowed dogs to remain upon the leased property, or negligently failed to take sufficient precautions to prevent the injuries, by emphasizing a variety of facts. For example, they may show whether the landlords attempted to make the premises safe by warning or requiring their tenants to warn others of the danger, by requiring their tenants to chain, leash, or otherwise restrain the dog, by placing provisions in the lease regarding the confinement or control of the dog, or by providing a protective fence.
To persuade the court to grant recovery, particularly when also trying to convince the court to adopt a new rule making recovery against a landlord more likely, victims of animal attacks may present a variety of public policy arguments in favor of imposing liability, emphasizing matters such as the obvious danger to the public caused by vicious animals, and the insurance coverage which the landlords may obtain. On the other hand, landlords may argue that the law should not discourage them from allowing tenants to keep pets, or guard dogs, since these activities have an important value to society which should not be unduly burdened.
Although evidence that a tenant's dog attacked other individuals subsequent to the attack on the plaintiff is not relevant to establishing a landlord's prior knowledge of the dog's vicious nature, such evidence might be introduced to demonstrate a pet owner's inability to objectively evaluate the animal's dangerous propensities, and thereby support the argument that public policy requires the imposition of a duty of care upon someone other than the pet's owner.
To establish whether a landlord had a sufficient degree of control over the leased premises to prevent injuries to a third person caused by a tenant's animal, the parties may introduce evidence showing the respective rights and duties of the landlord and tenant based upon their written or oral lease agreements, or course of conduct. The landlord may show that the lease gave the tenant exclusive possession and control of the premises, and may emphasize that the tenant, rather than the landlord, was responsible for maintaining the premises in a safe condition. Although the lease may give the landlord some control over the property during the term of the lease, such as the right to inspect, the landlord may nevertheless argue that such control did not create a duty to inspect for, or eliminate, an unsafe condition such as the presence of a vicious animal.
A landlord may support a denial of recovery by indicating that the lease allowed, or did not expressly prohibit, the presence of an animal on the leased premises, to establish that the landlord had no right to terminate the tenancy or require the removal of the animal. Similarly, a landlord may show that notice requirements, established by the lease or statutory provisions, made it impossible to terminate the lease or remove the animal in time to prevent the injury. On the other hand, the injured third party might successfully argue that the landlord should have taken precautions to prevent animal attacks, by placing restrictions in the lease regarding the possession or control of animals.
The manner in which tenants or visitors use the premises may indicate whether particular portions are "common areas" over which the landlord impliedly exercises control. Thus, where tenants of a duplex considered the yard as a severable area with recognizable portions used for their separate purposes, one court determined that the evidence was not sufficient to establish such implied control.
The recreational immunity defense is a feature of California statutory law and similar laws in other jurisdictions. The rule of landlord liability appears to conflict with the recreational immunity defense, and no case has resolved the conflict. The issue of immunity would be presented where a landowner keeps his property opened to the public, so that people can walk their dogs and kids can play ball, but the landowner knows that some of the dogs snap at the kids. If a dog seriously injures one of the children, can the victim sue the landlord?
The recreational use immunity statute (Civil Code section 846) creates an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming onto the land. It states:
Civil Code section 846: An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, ,uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.
A "recreational purpose," as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.
An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.
This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
Nothing in this section creates a duty of care or ground of liability for injury to person or property.
Jackson v. Pacific Gas & Elec. Co. (2001) ___ Cal.App.4th ___ , 2001 DJDAR 13261, held that a utility is immune, under Civil Code section 846, from suit by a child who suffered injuries when he attempted to retrieve his kite from an overhead power line, and none of the statutory exceptions applies. The court noted that flying a kite was a recreational activity. In that case, it required that the child go onto the property of a neighbor, and then come into contact with the power line, which was located on an easement belonging to Pacific Gas & Electric Company. The court cited Hubbard v. Brown (1990) 50 Cal.3d 189, 193, for the proposition that the goal of section 846 is to constrain the tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.
Landlords who know that there are dangerous dogs on their property become liable to victims when the landlords fail to remove this danger from their land. By opening up their land to children, as in the example given at the beginning of this section, should the landlords' duty to get rid of vicious dogs come within the protection of section 846 and the recreational use immunities provided by other jurisdictions? The enlightened view would be that 846 does not relieve landlords of their responsibility to keep their property free of dangerous dogs. The primary reason is that the section specifically "does not limit the liability which otherwise exists ... for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity." (Section 846.) The presence of a dangerous dog certainly is a dangerous condition; allowing dangerous dogs to roam the property clearly is a dangerous activity. However, no case has decided this point.
Liability for Bites by Dogs Upon Adjacent Property
The states differ as to whether a landlord can be held liable for a dog bite that happens (a) on adjacent property or (b) by a dog that is kept on adjacent property.
A general rule pertaining to the landlord-tenant relationship, applicable in states such as California, is that a landowner may discharge a duty of care either by remedying a hazard, protecting people from the hazard, or warning them of the hazard: "A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard." Alcaraz v. Vece (1997) 14 Cal.4th 1148 (where landlord did not create the hazard).
The landlord-tenant relationship is "protective by nature, requiring the [landlord] to guard his charge against harm from others." William Prosser and Page Keeton, "The Law of Torts," 383 (5th Ed. 1984). Landlords' "liability for failure to warn is not founded upon their control over the common areas but upon their position of superior knowledge." Wylie v. Gresch (1987) 191 Cal.App.3d 412.
An interesting issue arises when a vicious dog is known to be kept on adjacent property (not the landlord's property, but adjacent to it). The cases are conflicting. For example, Florida law does not generally make the landlord liable for an attack by a tenant's dog that happens on adjacent property having no connection to the landlord's property, but does hold a landlord liable for such an attack if the adjacent property is "part of the total package" that was rented to the tenant, or is closely related to the landlord's property, and the victim is one of the landlord's tenants. See the discussion in Ramirez v. M.L. Management Co., Inc., 920 So.2d 36 (Fla. 4th DCA 2005).
In an important case involving not vicious dogs but hazards in the ocean, the 9th U.S. Circuit Court of Appeals held that the government and its management company had a duty to warn about such hazards even though they did not cause them. Pacheco v. United States, 220 F.3d 1126 (9th Cir. 2000). The rationale of the decision is that where a landowner has a certain type of relationship with one who comes on his or its land, and also has actual knowledge of a substantial danger existing on adjacent property (of which the visitor is unaware), then there is a duty to warn the visitor of the danger.
Liability for Bites by Tenants' Dogs
When a renter's dog bites a person, the victim will consider making a claim against the renter's landlord if the renter does not have renter's insurance (or that insurance is insufficient). The claim must be based on common law principles because there are no statutes in the USA making landlords automatically liable for dog bites. Court cases have held landlords liable in the following situations:
- The landlord had knowledge of the animal's presence and its dangerous tendencies, and had control of the premises or otherwise had the ability to eliminate the danger by having the animal removed or confined.
- The landlord had knowledge that the animal was a pit bull, and had control of the premises or otherwise had the ability to eliminate the danger by having the animal removed or confined.
- The landlord had an obligation to make a repair or take other action which, if the repair or other action had been completed reasonably, would have prevented the incident from happening. For example, if the landlord failed to repair a gate, and a vicious dog ran from behind the gate and bit a person who was on the common grounds of the premises, the landlord could be held liable.
- The landlord did not make a repair or take other action which the landlord had undertaken voluntarily, and the landlord's inaction or negligent completion of the task increased the risk of the accident happening.
- The landlord prohibited dogs because of an awareness that any dogs would present a risk of injury on the particular property, or that certain breeds of dogs inflict substantial damage when they attack people or other dogs, but the landlord failed to enforce the prohibition and the injury was caused by a dog that was prohibited.
The general, traditional rule of landlord liability is set forth in Restatement (Second) of Torts §379A (1965), which states that a landlord will be held liable for any activity on his property if:
- "(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
- "(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken."
As it applies to dog bites, the landlord liability rules are more specific and cover a wider variety of circumstances. In most states, a landlord may be liable for injuries and bites inflicted by a dog belonging to a tenant, if the landlord (a) had scienter and the requisite degree of control over the premises or the dog itself, such as the ability to have it confined or removed, or (b) increased the risk of danger by failing to do something pertaining to the confinement or control of the dog which fell within the normal obligations of the landlord or which he undertook voluntarily, such as neglecting to fix a gate or fence. See generally Wade R. Habeeb, LL.B., Annotation, Landlord's Liability to Third Person for Injury Resulting from Attack by Dangerous or Vicious Animal Kept by Tenant, 81 A.L.R.3d 638 (1977).
"Scienter" is defined as knowledge of a dog's dangerousness or viciousness. (See The One Bite Rule.) A landlord's knowledge may be actual (Rocha v. Lopez, 509 So. 2d 1241 (Fla. App. 1987)) or implied or imputed because of the actual knowledge of his agent or employee. Anderson v. Walthal, 468 So. 2d 291 (Fla. App. 1985). In one state, actual knowledge is required if the property is residential (Uccello v. Laudenslayer (1975) 44 Cal App 3d 504), or constructive knowledge if the property is commercial (Portillo v Aiassa (1994) 27 Cal App 4th 1128). The doctrine of "constructive knowledge" permits someone to be held to know something if he should have discovered it, or had enough facts to deduce it, even if he did not subjectively know the thing.
When a landlord has notice of a vicious dog, he cannot be held liable under the scienter doctrine unless he has both the right to impose conditions of confinement on the dog (or evict the tenant if the conditions are not met) and the time required to do so. See, for example, dicta in Fernandez v. Marks (1982) 642 P.2d 542:
"We note that the first dog-bite incident which appears in the record occurred on January 9, 1977. Even had appellee been immediately informed thereof and thereupon elected to terminate the tenancy, she would have had to have given 28 days notice thereof under ? 521-71, HRS. Thus, the tenancy would still have been in existence when the two dog-biting incidents, which gave rise to this suit, occurred. Therefore, even with knowledge of the first attack, she could not have evicted the dogs' owner and the dogs from the premises in time to interfere with their being in Waiahole when the attacks in question occurred."
Landlord liability law differs from state to state. One of the most sweeping reviews of the various circumstances involving landlords and tenants' dogs can be found in Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544 (Md. 10/07/1998), discussed at Maryland Dog Bite Law, opinion available by clicking here. The Matthews opinion summarizes not just Maryland law but key decisions from all over the USA, and therefore the case is essential reading.
The states differ as to the circumstances which will make a landlord liable. They may include the following:
- The landlord knew that a tenant was the owner of a vicious dog. White v. Whitworth, 509 So.2d 378, 380 (Fla. 4th DCA 1987).
- The landlord had the right to remove the dog by retaking possession of the premises. Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 118 Cal. Rptr. 741 (1975). Gallick v. Barto, 828 F. Supp. 1168, 1174-1175 (M.D. Pa. 1993), quoting Palermo v. Nails, 334 Pa. Super. 544, 547-548, 483 A.2d 871, 873 (1984). Matthews v. Amberwood Associates Limited Partnership Inc., cited above.
- The landlord had the right to control the dog's presence directly. Giaculli v. Bright, 584 So. 2d 187, 189 (Fla. 5. th. DCA 1991).
- The attack occurred in a common area, meaning one that any tenant or guest could lawfully pass through or occupy, such as the hallway of an apartment building. Lidster v. Jones 176 Ga. App. 392 (1985).
- The landlord knew that a prospective tenant had a dangerous dog, and rented to him anyway. Strunk v. Zoltanski, 62 N.Y.2d 572 (1984). McCullough v. Bozarth, 232 Neb. 714, 724-725, 442 N.W.2d 201, 208 (1989). Vigil v. Payne, 725 P.2d 1155 (Colo. App. 1986).
- The landlord had a rule for tenants that prohibited vicious dogs, but did not enforce the rule. Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska 1986).
- The dog was owned by an employee of the landlord who was living upon the landlord's premises. Arlington Funeral Home v. Taylor, 474 S.W.2d 299 (Tex. Civ. App. 1971).
- The landlord had time to abate the hazard caused by the dog, even though the landlord had given up possession of the premises. Parker v. Sutton, 72 Ohio App. 3d 296, 299, 594 N.E.2d 659, 662 (1991).
- Where the lease agreement includes rules which specifically prohibit certain breeds of dogs, some courts have held the landlord liable for his failure to enforce those rules despite knowledge that prohibited dogs reside upon the premises. See, i.e., Matthews v. Amberwood Associates Limited Partnership Inc., cited above.
Where an attack occurs outside, off the premises owned by the landlord, courts have been reluctant to impose liability. See, e.g., Gibbons v. Chavez, 770 P.2d 377 (Ariz. Ct. App. 1988); Ward v. Young, 504 So.2d 528 (Fla. Dist. Ct. App. 1987); Allen v. Enslow, 423 So.2d 616 (Fla. Dist. Ct. App. 1982); Fernandez v. Marks, 642 P.2d 542 (Haw. Ct. App. 1982); Feister v. Bosack, 497 N.W.2d 522 (Mich. Ct. App. 1993); Wright v. Schum, 781 P.2d 1142 (Nev. 1989). For example, in Fernandez, a Hawaii court held that a landlord could not be held liable when the tenant's vicious dog attacked plaintiffs off of the landlord's premises. 642 P.2d at 544. The court reasoned that to make a landlord liable in such a situation where the landlord was not the owner or keeper of the dog and the injury occurred off the premises would have the effect of "making a landlord ... an insurer of the public against injuries, off the premises, by dogs domiciled by tenants on the landlord's premises." Id. In other words, to place liability on the landlord where the landlord retains no control would make the landlord in essence an insurer. As with areas off the premises, the landlord does not retain control within the leased premises. Thus, to place liability on the landlord for injuries occurring within the leased premises over which the landlord has given up control to the tenant is to make the landlord an insurer.
Some states do not ever impose liability on the landlord. For example, a landlord who has actual knowledge that a dangerous dog is on his tenant's property, and who has every right to expel the tenant or the dog, is not liable for a victim's injuries in the state of Kansas. (Colombel v. Milan (1998) 24 Kan.App.2d 728.) It therefore is important to review the law of the state where the attack happened. If you are not an attorney, you need to retain one in any dog bite claim against a landlord or landowner who is suspected of being liable for injuries inflicted by a dog owned by a tenant.
One commentator argues that a landlord's liability for harm created by the behavior of tenants (which includes the ownership of a dangerous dog) is based on the warranty of habitability. (John A. Humbach, Landlord Control of Tenant Behavior: An Instance of Private Environmental Legislation, 45 Fordham L. Rev. 223 (1976), "It is not unreasonable that the implied warranty of habitability should be extended to impose landlord responsibility for tenant misconduct.")
The liability of a hotel is similar to that of a landlord. As a general rule, a hotel has a duty of “maintaining the hotel premises in a reasonably safe condition, and of exercising reasonable care to protect them (guests) while in the hotel and in the part thereof open to the public from personal injury through his negligence." Adams v. Dow Hotel (1938) 25 Cal.App.2d 51, 53-54.
Landlord Liability for Dog Bites
Under a variety of circumstances, a landlord may be held liable for bites by tenants' dogs.