The State of Washington makes the owner of a dog strictly liable for dog bites.

Overview

washingtonThe state of Washington has a dog bite statute that is favorable to dog bite victims. The law makes the owner of the dog strictly liable for dog bites. Additionally, anyone who harbors, keeps or is negligent with a dog can be held liable for injuries caused by the dog. Washington dog bite law generally protects landlords from liability for canine-inflicted injuries, however, unless the landlord is a keeper or harborer of the dog.

If a dog has bitten before, or indicated that it might bite someone, or if it has injured a person in another manner, or indicated that it might do so, then the owner, harborer or keeper having knowledge of the dangerous propensity of the dog may be held liable if the dog inflicts injury by doing any of those things in the future. The law refers to that advance knowledge as "scienter." This rule applies not only to dogs but to all domestic animals. People who are liable for their scienter of an animal's dangerous include the animal's owner, keeper, and harborer. When there is proof of scienter, the range of activities causing liability is expanded; instead of just bites, all activities of the animal can cause liability. Furthermore, when there is proof of scienter, the circle of potentially liable persons is also expanded; instead of just owners, the persons who may be found liable include the owner, harborer and keeper.

People who are liable for negligence in a dog case include anyone who unreasonably failed to control the dog on that day, and thereby caused injury to another person. The activities of the dog which caused the injury are without limit when it can be shown that the actions or inactions of the defendant were unreasonable, and those actions or inactions were the proximate cause of injury.

 

Common law liability for scienter

At common law, an owner, keeper, or harborer of a dog, who knows or reasonably should know the dog has vicious or dangerous propensities likely to cause the injury complained of, is liable for such injury regardless of any negligence. Arnold v. Laird, 94 Wn.2d 867, 871, 621 P.2d 138 (1980); Johnston v. Ohls, 76 Wn.2d 398, 400, 457 P.2d 194 (1969); Shafer v.Beyers, 26 Wn. App. 442; 613 P.2d 554 (1980).

Liability under this rule attaches to an owner, keeper, or harborer of a dog. Markwood v. McBroom, 110 Wash. 208, 211, 188 P. 521 (1920); Miller v. Reeves, 101 Wash. 642, 644-45, 172 P. 815 (1918).

As far as the common law is concerned, dogs are usually regarded as harmless and in order to recover "it must be shown that the defendant knew, or had reason to know, of a dangerous propensity in the one animal in question." W. Prosser, Handbook of the Law of Torts § 76, at 500 (4th ed. 1971). Accord, Johnston v. Ohls, supra at 404.

This is referred to as the "one-bite rule." Its importance in Washington is that it extends liability to persons other than the dog owner himself. Common law liability is not necessary to prove against a dog owner, because Washington has a dog bite statute.

 

Negligence liability

The common law recognized two separate causes of action for injuries caused by animals. First, if a dog owner knows the dog has vicious or dangerous propensities, the owner is strictly liable for any injuries the dog causes. Arnold, at 871; Johnston v. Ohls, 76 Wn.2d 398, 400, 457 P.2d 194 (1969); Markwood v. McBroom, 110 Wash. 208, 211, 188 P. 521 (1920). Second, if a dog owner or other person does not know of any vicious or dangerous propensities, that person is liable only if negligent in failing to prevent the harm. Arnold v. Laird, 94 Wn.2d 867, 871, 621 P.2d 138 (1980); Restatement (Second) of Torts §§ 509, 518 (1977).

The amount of care required is commensurate with the character of the animal: "The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen." Arnold, at 871; see also Restatement (Second) of Torts § 518 (1977).

 

Statutory liability under the Washington dog bite statute

The Revised Code of Washington, section 16.08.040 (Dog bites -- Liability), states as follows:

The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

 

Liability for actions of vicious dogs and wild animals

Washington courts hold the owner of a wild animal liable if the owner knew or reasonably should have known that the wild animal had the same dangerous propensity that caused the present victim's injury. "We do not believe that a separate rule of law for cases involving wild animal attacks is necessary." Frobig v. Gordon, 124 Wn.2d. 732, 737, 881 P.2d 226 (1994).

Allowing a vicious dog to run at large is a crime. A criminal statute, RCW 9.08.010, prohibits allowing any animal known to have vicious or dangerous tendencies to escape or run at large. Violation of any such statute makes a person liable under the doctrine of negligence per se. This would apply, however, only to a "person having the care or custody" of such animal.

 

Liability based on violations of local ordinances (negligence per se)

Local legislative bodies may create different rules with respect to animal liability in order to protect public safety, where such rules do not conflict with more general state laws. Rhoades v. City of Battle Ground, 115 Wn. App 752, 763, 63 P.3d 142 (2002), review denied, 149 Wn.2d 1028, 78 P.3d 656 (2003). For example, Seattle City Code § 12.24.010 requires dogs to be on a leash; the ordinance relates only to the "owner or custodian" of a dog, or to the "owner or custodian or other competent and authorized person . . . ." The violation of such an ordinance constitutes negligence per se.

 

Landlord liability

Liability to persons who are not tenants

The Washington Supreme Court in Frobig expressly held that "landlords have no duty to protect third parties from a tenant's lawfully owned but dangerous animals," even where the landlord knows that the dangerous animal is present on the property. Frobig, 124 Wn.2d at 740-41. The court said:

The rule in Washington is that the owner, keeper, or harborer of a dangerous or vicious animal is liable; the landlord of the owner, keeper, or harborer is not. Clemmons v. Fidler, 58 Wn. App. 32, 35-36, 791 P.2d 257, review denied, 115 Wn.2d 1019, 802 P.2d 125 (1990); Markwood v. McBroom, 110 Wash. 208, 211-12, 188 P. 521 (1920); Shafer v. Beyers, 26 Wn. App. 442, 446-47, 613 P.2d 554, review denied, 94 Wn.2d 1018 (1980).

The landlord's ownership of the property does not in and of itself make them liable for persons thereon who own or possess, harbor or keep a dangerous dog. Shafer, 26 Wn. App. at 447, citing Harris v. Turner, 1 Wn. App. 1023, 1028, 466 P.2d 202 (1970).

Washington has not adopted the Restatement (Second) of Torts §379A (1965), which provides 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."

In Clemmons v. Fidler, 58 Wn. App. 32, 37, 791 P.2d 257, review denied, 115 Wn.2d 1019, 802 P.2d 125 (1990), it was held that a landlord's knowledge regarding the viciousness of a tenant's dog was immaterial to a finding of liability, adopting the common law rule that "only the owner, keeper, or harborer of the dog is liable for [harm caused by the dog]." Clemmons, 58 Wn. App. at 34, 35. The Frobig court cited Clemmons as one of the sources of the rule announced in Frobig. Frobig, 124 Wn.2d at 735.

Under these decisions, however, a "landlord" is a person who does not live on the premises where the dog resides. For example, the Shafer court said: "So far as the rented premises are concerned, the owners' liability to third persons in connection therewith is based on the law applicable to 'landlords' rather than that applicable to 'occupiers.' " Shafer, 26 Wn. App. at 447, citing Sunde v. Tollett, 2 Wn. App. 640, 642, 469 P.2d 212, 41 A.L.R.3d 319 (1970).

Liability to tenants

Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994), stated that Washington common law provides that a landlord will be liable to a tenant for harm caused by:

(1) latent or hidden defects in the leasehold

(2) that existed at the commencement of the leasehold

(3) of which the landlord had actual knowledge

(4) and of which the landlord failed to inform the tenant.

The court also stated:

With regard to conditions on the land that develop or are created after the property has been leased, the general rule is that a landlord is not responsible, either to persons injured on or off the land, for conditions which develop or are created by the tenant after possession has been transferred. W. Page Keeton et al., Prosser and Keeton on Torts § 63, at 434 (5th ed. 1984); see also Danny R. Veilleux, Annotation, Landlord's Liability to Third Person for Injury Resulting From Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant, 87 A.L.R.4th 1004, 1012 (1991). In the words of the Washington Court of Appeals, "The duty and liability of the invitor-lessor do not, as a rule, extend to matters having to do merely with the lessee's management or operation of premises which would be safe except for such management or operation, at least where the lessee is in sole actual control". Peterick v. State, 22 Wn. App. 163, 170-71, 589 P.2d 250 (1977) (citing 49 Am. Jur. 2d Landlord and Tenant § 763 (1970)), review denied, 90 Wn.2d 1024 (1978), overruled on other grounds by Stenberg v. Pacific Power & Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985)."

The Frobig court also relied on the Residential Landlord-Tenant Act of 1973, RCW 59.18.060, which provides that a landlord has no duty to repair a defective condition caused by a tenant, and RCW 59.18.130(5) states that it is the tenant's duty not to permit a nuisance on the rental premises.

Frobig specifically limited the landlord's liability in a case that involved a wild tiger on leased property. The court said that the fact that a tiger inflicted the injury to the plaintiff was immaterial. The rule of law was the same one that is applicable to dogs. Liability could not be based on being a landlord. At least, this was the rule where the injured person was a third party, not a tenant. It would seem that this rule would also apply when a dog belonging to one tenant injures another tenant.

 

Owner

Under the dog bite statute, an owner is strictly liable. There is no definition, however, of "owner." Therefore one must look to the court decisions to determine who will be regarded as a dog's owner in any particular case.

In Harris v. Turner, 1 Wn. App. 1023, 466 P.2d 202, review denied, 78 Wn.2d 993 (1970), a running dog collided with a moving motorcycle. The injured passenger received a jury verdict against the dog owners and the owners of the property on which the dog owners lived. A Pierce County code provision defined "owner" as "any person, firm or corporation owning, having interest in or having control or custody or possession of any animal." A subsequent provision provided that it was unlawful for any owner to "keep, harbor, or maintain" a vicious dog. The court held the ownership of a house in which the dog owners resided did not make the property owners the owners, harborers, or keepers of the dog. Harris, at 1028.

Shafer v. Beyers, 26 Wn. App. 442, 446, 613 P.2d 554, review denied, 94 Wn.2d 1018 (1980) is a badly reasoned decision that states the issue one way but bases the holding on something entirely different. In that case, it was held that a property owner was not liable for a dog owned by a person subletting an apartment on the property. The property owners did not live in the city where the accident happened, the people who had custody of the dog were not the original tenants but rather were sub-tenants, and it was unclear whether the sub-tenants were the owners of the dog or simply the temporary keepers of the dog.

The court said that "[o]ne ultimate issue is presented," and stated the issue in the following manner: "Are the owners of rental property (who do not live on the rented premises) liable for injuries sustained by a pedestrian while passing by the premises on a public sidewalk, which injuries were caused by a dog kept on the premises by a subtenant of the tenant to whom the premises were rented?"

Illogically, the court's decision was based not upon any definition of "owner," but on the complete absence of proof that the dog exhibited dangerous tendencies prior to the date of the accident. "We have carefully reviewed the record presented and it does not establish that the landlords knew or had reason to know that Nojo was a dangerous animal." Shafer, 26 Wn. App. at 448.

So the real issue did not depend upon the status of the defendants as landlords, owner, harborers or keepers, but rather upon whether anyone had knowledge of the dangerous propensity of the dog. Ultimately the Shafer case simply reiterated the common law rule that a person's liability for the injuries inflicted by a domestic animal is based on that person's scienter of the dangerousness.

In Beeler v. Hickman, 50 Wn. App. 746; 750 P.2d 1282; 1988 Wash. App. LEXIS 129 (1988), the appellate court reversed the summary judgment granted in favor of the defendants because it found that ownership of the dog, for purposes of imposing strict liability under the applicable statute, was an unresolved issue of material fact. The case therefore establishes that ownership is a factual issue to be determined by a jury when there is any evidence to support the view that the defendant might be an owner of the dog in question.

The Hickmans contended there was no genuine issue of material fact as to ownership because it was undisputed their granddaughter, Mrs. Layman, purchased the dog, never relinquished ownership, intended to get possession of him in the future, and the Hickmans denied ownership. However, the fact the Hickmans resided with, cared for, and had exclusive possession of the dog for 3 years was held to raise a genuine issue of material fact for the jury to decide. Furthermore, the court reasoned that since these allegations were particularly within the knowledge of the Hickmans and Mrs. Layman, summary judgment would not be proper. The court cited Michigan Nat'l Bank v. Olson, 44 Wn. App. 898, 905, 723 P.2d 438, review denied, 106 Wn.2d 1011 (1986).

Beeler held that "[t]he use of the term 'owner' evidences a legislative intent to exclude from liability persons who are mere keepers or possessors of a dog." Beeler, 50 Wn. App. at 752. The court rejected the argument that ownership is limited to purchasers, concluding that the Legislature must have intended to include persons who reside with and care for a dog for an extended period of time. Beeler, 50 Wn. App. at 752. Based on evidence that the defendants in that case had resided with, cared for, and exclusively possessed the dog for three years, the Beeler court concluded there was an issue of fact regarding ownership.

 

Harborer or keeper

To be a "harborer" or "keeper," a person must do more than allow the dog to resort on their premises. Harris v. Turner, 1 Wn. App. 1023, 1030, 466 P.2d 202 (1970). They must treat the dog as living at their house and undertake to control its actions. Shafer v. Beyers, 26 Wn. App. 442, 447, 613 P.2d 554 (1980); Harris, 1 Wn. App. at 1029-31.

In Harris, the court relied on Miller v. Reeves, 101 Wash. 642, 172 P. 815 (1918), which stated:

"A man may own an animal and yet not be its keeper. The word 'keeper' is equivalent to 'the person who harbors.' Harboring means protecting, and one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law."

The court also quoted from an old English case, M'Kone v. Wood, 172 Eng. Rep. 850 (1831), which held that "the harbouring a dog about one's premises, or allowing him to be or resort there, is a sufficient keeping of the dog . . . ".

The Harris court said:

'We consider the reference to allowing a dog to resort on one's premises to be obiter dictum and not sufficient reason to find that one is a harborer or keeper of a dog. The trial court erred in instructing the jury that the word "harbor" or "harboring" could consist of "allowing the dog to resort about one's premises . . . "

The Harris court also adopted the rule set forth in Restatement of Torts § 514, comment a at 30, 31 (1938):

"[A] person harbors a dog . . . by permitting his wife, son or household servant to keep it in the house or on part of his land which is occupied by the family as a group. On the other hand, the possession of the land on which the animal is kept, even when coupled with permission given to the third person to keep it thereon, is not enough to make its possessor liable as a harborer of the animal. Thus, a father, on whose land his son lives in a separate residence, does not harbor a dog kept by his son therein, although he has the power to prohibit the dog from being kept and fails to exercise the power or even if he presents the dog to his son to be so kept.

 

 

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