The remedies and penalties in California pertinent to dangerous dogs and their owners are established by common law (dating from colonial times), court cases ("case law"), city ordinances, county ordinances, and state statutes (the Civil Code, Penal Code, Food & Agriculture Code, and Health & Safety Code). There are different consequences depending on who the victim is, and the behavior of the dog and its owner. Note that the overview is limited to situations involving human victims and domestic animal victims, not farm animals; the remedies and penalties for injuries to farm animals are not within the scope of this website.

Overview of criminal prosecution and restitution

The conviction of a crime under the Penal Code or the code of ordinances of a city or county is extremely important in cases of dog attacks on people or domestic animals because it triggers the remedy of restitution under California Constitution, Article 1, section 28, subdivision (b) and Penal Code section 1202.4. Approximately 800,000 Americans require medical treatment for dog bites every year, but less than one percent of the victims receive compensation from liability insurance policies (homeowners, renters and commercial insurance). In cases where a criminal law was violated (including but not limited to leash laws), restitution normally is the victim’s only recourse for the costs of medical treatment and other economic losses (i.e., not pain and suffering, loss of quality of life, or other nontangible items of damage covered by tort law). The victim’s right to restitution is guaranteed under the California Constitution. Article 1, section 28, subdivision (b) states: "All persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." To implement this right, California Penal Code section 1202.4 states: "A victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.”

If a defendant does not pay for the victim’s medical treatment, the costs thereof must be borne by the victim, the health insurance industry and public welfare programs. This is unjust and contravenes both the California Constitution and the intent of the legislature. Therefore an animal control department or prosecutor’s office that does not file available criminal charges and press for conviction (or a disposition which includes restitution) performs a grave disservice to both the victim and the people of this state.

Overview of remedies for potentially dangerous and vicious dogs

A dog can be potentially dangerous or vicious in fact, or can be officially declared to be potentially dangerous or vicious. A dog is "dangerous" if it presents an unacceptably high risk of serious injury, even before causing harm; it is “vicious” if it demonstrates a desire to bite people. It can be declared “dangerous,” “potentially dangerous” or “vicious” if the city, county or state laws so provide, depending on the actions of the dog or its owner, including keeper or harborer. From place to place the focus of the "dangerous dog law" can be the actions of a particular dog or the acts or omissions of its owner. California does not permit the official classification of a dog as “potentially dangerous” or “vicious” solely on the basis of its breed, however, despite overwhelming evidence that pit bulls are associated with higher morbidity rates, higher hospital charges, and a higher risk of death than attacks by other breeds of dogs, and kill or seriously injure tens of thousands of pets and hoofed animals annually.

It is important to note that animal control authorities, law enforcement officers and prosecutors can choose to enforce city, county or state laws. The comprehensive provisions pertaining to dogs found in the Food & Agriculture Code do not preempt city and county laws even if they are entirely different than those of the state. This means that a dog owner can be prosecuted under whichever laws seem to best fit the circumstances. If a city code lacks an important remedy (such as a requirement that the owner of a potentially dangerous dog must maintain liability insurance), a prosecutor may choose to proceed under a county code that contains what the city ordinances are missing.

Remedies

Unrestrained:

  • Animal control officer may seize and impound dog if provided in city or county code (i.e., Santa Clara County Code secs. B31-20, B31-31).

Public nuisance (chasing vehicles, molesting passers by, noise):

  • Animal control officer may seize and impound dog if provided in city or county code (i.e., Santa Clara County Code secs. B31-13, B31-20).
  • Infraction and declaration of public nuisance if provided in city or county code (i.e., Santa Clara County Code secs. B31-13, B31-16).

Known propensity to attack, injury and threaten safety of humans or domestic animals:

  • Designation as a “potentially dangerous dog” if provided in city or county code (i.e., Los Gatos City Code section 4.10.010(r)(1)).

Trained to guard persons or property:

  • Designation as a “potentially dangerous dog” if provided in city or county code (i.e., Los Gatos City Code section 4.10.010(r)(1)).

One biting incident to a domestic animal:

  • Civil action for negligence (meaning that the owner, harboror or keeper can be sued for negligent behavior if it caused the incident).
  • Civil action for negligence per se (the violation of a city or county ordinance intended to prevent the incident, if the city or county has such an ordinance).

Two biting incidents to domestic animal(s) off the property of the dog owner:

  • The remedies given for one biting incident.
  • Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).

Two incidents requiring defensive action by a human off the property of the dog owner:

  • Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).

One bite incident to a human victim, no severe injury:

  • Statutory strict liability for payment of damages (Civil Code section 3342).
  • Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).

One bite incident to a human victim, severe injury:

  • Designation as a "vicious dog" (Food & Agriculture Code section 31603, city and/or county code if provided per Food & Agriculture Code section 31683).
  • Statutory strict liability for payment of damages (Civil Code section 3342).
  • Felony or misdemeanor if dog trained to fight, attack or kill and defendant having custody or control of dog failed to exercise ordinary care (Penal Code section 399.5(a)).
  • Following conviction, dog euthanized or removed from area (ibid.).

Two biting incidents to human victim(s):

  • Private animal control (i.e., special proceeding by "any person" to have dog put down or impose conditions on dog owner; see Civil Code section 3342.5(b)).
  • The remedies given for one bite incident to a human victim, no severe injury.
  • Statutory strict liability for payment of damages (Civil Code section 3342).
  • Common law strict liability for payment of damages by harborer or keeper (case law).
  • Malicious injury warranting punitive damages (case law).
  • Felony or misdemeanor if dog trained to fight, attack or kill and defendant having custody or control of dog failed to exercise ordinary care (Penal Code section 399.5(a)).
  • Following conviction, dog euthanized or removed from area (ibid.).
  • City or county ordinance remedies if any (Food & Agriculture Code section 31683).

Dog owner convicted under section 599(A) of the Penal Code:

  • Designation as a "vicious dog" (Food & Agriculture Code section 31603).
  • Statutory strict liability for payment of damages (Civil Code section 3342).
  • Common law strict liability for payment of damages by harborer or keeper (case law).
  • Malicious injury warranting punitive damages (case law).

Dog previously determined to be potentially dangerous, recidivist or owner's violation of law:

  • Designation as a "vicious dog" (Food & Agriculture Code section 31603 and city and/or county code if provided per Food & Agriculture Code section 31683).

Penalties

Criminal acts

  • The acts or omissions which may result in a designation of “potentially dangerous” or “vicious” may be prosecuted as crimes.
  • Restitution fine from $100 to $10,000 (Penal Code section 1202.4).
  • Restitution to victim of economic losses (Penal Code section 1202.4).

Potentially dangerous dog:

  • Licensed.
  • Vaccinated.
  • Jurisdiction can charge a special fee.
  • Dog must be kept indoors or in a securely fenced yard.
  • When off the owner's premises the dog must be restrained by a substantial leash under the control of a responsible adult.
  • The owner shall notify the animal control department of any new location of the dog.
  • These terms and conditions are for 36 months or longer unless there is a change in the circumstances of the dog that mitigated the risk to the public.
  • Any violations may be punished by a fine of to $500. (Food and Agricultural Code section 31662.)
  • City or county ordinance conditions if any (Food & Agriculture Code section 31683). See topic, below.

Vicious dog

  • Euthanasia.
  • Conditions to protect the public.
  • Special enclosure pursuant to section 31605.
  • Owner may be prohibited from having any dog for up to three years if ownership would create a significant risk to the public.
  • Any violations may be punished by a fine up to $1000. (Food and Agricultural Code section 31662.)
  • City or county ordinance conditions if any (Food & Agriculture Code section 31683). See topic, below.

After conviction under Penal Code 399.5:

  • Euthanasia.
  • Removal from area.

Additional city and county conditions:

City and county codes often provide similar and more stringent and detailed terms and conditions than those imposed by the state. Some of the most important include:

  • Dog must be kept in a locked pen surrounded by a fence.
  • Residence must be securely closed if dog inside.
  • Dog must be muzzled when in public or people present.
  • Owner must have liability insurance with limits of $50,000 (potentially dangerous) or $100,000 (vicious).

Judicial process

Food and Agricultural Code sections 31621-31626 governs the process of declaring a dog to be "potentially dangerous" or "vicious" under other sections of the same code. City and county codes have their own procedures.

Choice of law

As to dangerous and vicious dogs, California statutes do not preempt county and city laws (Food & Agriculture Code section 31683).

Relevant code sections

Civil Code section 3342.5(b)

Whenever a dog has bitten a human being on at least two separate occasions, any person, the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

California Food & Agriculture Code section 31602

"Potentially dangerous dog" means any of the following:

(a) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.

(b) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.

(c) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.

California Food & Agriculture Code section 31603

"Vicious dog" means any of the following:

(a) Any dog seized under Section 599a of the Penal Code and upon the sustaining of a conviction of the owner or keeper under subdivision (a) of Section 597.5 of the Penal Code.

(b) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.

(c) Any dog previously determined to be and currently listed as a potentially dangerous dog which, after its owner or keeper has been notified of this determination, continues the behavior described in Section 31602 or is maintained in violation of section 31641, 31642, or 31643.

California Food & Agriculture Code section 31604

"Severe injury" means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.

California Food & Agriculture Code section 31605

"Enclosure" means a fence or structure suitable to prevent the entry of young children, and which is suitable to confine a vicious dog in conjunction with other measures which may be taken by the owner or keeper of the dog. The enclosure shall be designed in order to prevent the animal from escaping. The animal shall be housed pursuant to Section 597t of the Penal Code.

California Food & Agriculture Code section 31644

If there are no additional instances of the behavior described in Section 31602 within a 36-month period from the date of designation as a potentially dangerous dog, the dog shall be removed from the list of potentially dangerous dogs. The dog may, but is not required to be, removed from the list of potentially dangerous dogs prior to the expiration of the 36-month period if the owner or keeper of the dog demonstrates to the animal control department that changes in circumstances or measures taken by the owner or keeper, such as training of the dog, have mitigated the risk to the public safety.

California Food & Agriculture Code section 31645

(a) A dog determined to be a vicious dog may be destroyed by the animal control department when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that the release of the dog would create a significant threat to the public health, safety, and welfare.
(b) If it is determined that a dog found to be vicious shall not be destroyed, the judicial authority shall impose conditions upon the ownership of the dog that protect the public health, safety, and welfare.
(c) Any enclosure that is required pursuant to subdivision (b) shall meet the requirements of Section 31605.

California Food & Agriculture Code section 31646

The owner of a dog determined to be a vicious dog may be prohibited by the city or county from owning, possessing, controlling, or having custody of any dog for a period of up to three years, when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that ownership or possession of a dog by that person would create a significant threat to the public health, safety, and welfare.

California Food & Agriculture Code section 31683

Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in Section 122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.

California Health & Safety Code section 122331

Cities and counties may enact dog breed-specific ordinances pertaining only to mandatory spay or neuter programs and breeding requirements, provided that no specific dog breed, or mixed dog breed, shall be declared potentially dangerous or vicious under those ordinances.

California Penal Code section 399.5

(a) Any person owning or having custody or control of a dog trained to fight, attack, or kill is guilty of a felony or a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment, 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. No person shall be criminally liable under this section, however, unless he or she knew or reasonably should have known of the vicious or dangerous nature of the dog, or if the victim failed to take all the precautions that a reasonable person would ordinarily take in the
same situation.

(b) Following the conviction of an individual for a violation of this section, the court shall hold a hearing to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bite or bites have changed so as to remove the danger to other persons presented by the animal. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

(c) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) based on a bite or bites inflicted upon a trespasser, upon a person who has provoked the dog or contributed to his or her own injuries, or by a dog used in military or police work if the bite or bites occurred while the dog was actually performing in that capacity. As used in this subdivision, "provocation" includes, but is not limited to, situations where a dog held on a leash by its owner or custodian reacts in a protective manner to a person or persons who approach the owner or custodian in a threatening manner.

(d) Nothing in this section shall be construed to affect the liability of the owner of a dog under Section 399 or any other provision of law.

(e) This section shall not apply to a veterinarian or an on-duty animal control officer while in the performance of his or her duties, or to a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, if he or she is assigned to a canine unit.

California Penal Code section 597t

Every person who keeps an animal confined in an enclosed area shall provide it with an adequate exercise area. If the animal is restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a manner that it will prevent the animal from becoming entangled or injured and permit the animal's access to adequate shelter, food, and water. Violation of this section constitutes a misdemeanor. This section shall not apply to an animal which is in transit, in a vehicle, or in the immediate control of a person.

Under the age of five

An act which constitutes negligence on the part of an adult does not necessarily constitute negligence when committed by a child of limited judgment, discretion and experience. (Bowdoin v. Southern Pacific Co., 178 Cal. 634.) Minors under the age of five are, as a matter of law, deemed incapable of negligent acts, i.e., failing to exercise reasonable care under the circumstances. (Christian v. Goodwin (1961) 188 Cal.App.2d 650.)

In People v Berry (1991) 1 CA 4th 778, the defendant's dog killed a young child. The defendant dog owner was charged with keeping a mischievous animal that caused death, a felony per California Penal Code section 399. The defense was that there was no proof that the child acted with due care. The court held that no such proof was required where the child is a minor under age five, because children that young are not legally capable of acting with reasonable care toward a dog. 

"The proposition that 'An infant may be so very young that no negligence may legally be imputed to him' [citation], is predicated on the principle that a child of very early years is 'incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.' [Citation.]"  Christian v. Goodwin (1961) 188 Cal.App.2d 650, 652- 654, as quoted in People v Berry (1991) 1 CA 4th 778.

Also see Greene v Watts (1962) 210 CA2d 103 (young child may not be capable of assumption of risk or contributory negligence in dog bite case) and Witkin, 6 Summary of California Law (9th Ed.), "Children -- Duty Owed by Child," sec. 806, pp. 160 et seq.

Obeying the directions of parent

Minors acting in obedience to parents' directions are, as a matter of law, deemed incapable of being found negligent. 

Proving negligence when the minor is too young to testify

When there is a substantial probability that a defendant's negligence was a cause of the injury, and when such negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant to prove its negligence was not a cause of the injury (i.e., in those circumstances, the burden is more appropriately borne by the party with greater access to information). Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774, ftn. 19. In Haft, the decedents were found dead in the bottom of a hotel pool. Nobody had witnessed them drown, but the hotel operators had failed to comply with several safety regulations regarding pools. 

Liability of day care center

Every year, a substantial number of children are bitten by dogs at day care centers across the country. Some jurisdictions forbid dogs from being in day care centers. Even if it is not forbidden, it seems clear that is negligent to permit a dog to freely wander among children of tender years. Some day care centers have required parents to sign a release that purports to exculpate the center from its own negligence. (See Gavin v. YMCA (2003) 131 Cal.Rptr.2d 168.) The Gavin court held that such agreements are void as against public policy.

When liability of minor is imputed to parent

Minors who commit intentional torts may be held civilly liable for the resulting damages based on the usual principles of law. In some cases, the minor's parents also may be held liable up to a certain monetary limit. Civil Code section 1714.1 provides:

1714.1.  (a) Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.

Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000).  The liability imposed by this section is in addition to any liability now imposed by law

The limit is adjusted upwards every two years. In 2001, for example, the limit was $28,844.00. (See the calculation by the Judicial Council.)

When liability is imputed to the parents and does not result from a willful act on the part of an insured person, an insurer may have to pay on the parents' behalf, but not more than $10,000.00:

(e) Nothing in this section shall impose liability on an insurer for a loss caused by the willful act of the insured for purposes of Section 533 of the Insurance Code.  An insurer shall not be liable for the conduct imputed to a parent or guardian by this section for any amount in excess of ten thousand dollars ($10,000).

Defense based on lack of ownership of dog

The California dog bite statute is limited, by its own terms, to the owner of the dog. If the target defendant is not an owner, the victim must use the scienter cause of action. "[A] keeper, in contrast to an owner, is not an insurer of the good behavior of a dog, but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animal shall attach to him." (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 42 [177 P.2d 51].)

Ownership of an animal can be proved a variety of ways. These include the animal control records, the written authority to euthanize, and circumstantial evidence such as where the dog commonly slept and who took the dog to the veterinarian. Exercising substantial control over a dog also is an indication of ownership.

In one case, the target defendant was able to avoid liability by proving that the victim had become the owner of the dog just minutes before the injury happened. In Menches v. Inglewood Humane Society (1942) 51 Cal. App. 2d 415, 418, the court held that the victim who purchased the dog from the local humane society only ten minutes before being bitten could not sue the former owner because "ownership became absolute upon delivery of the animal to plaintiffs and the payment by them of the impounding fee."

Defense based on inadequate identification of dog

The plaintiff has the burden of proof as to which dog bit him, and that the defendant owned the dog, and the failure to establish the same will result in judgment for the defense. Jordan v. Harvey (1943) 61 Cal.App.2d 134.

Defense based on injury caused by something other than a bite

By its own terms, the dog bite statute is limited to bites. Not all of the so called "dog bite statutes" mention bites, but California's does. When this type of law specifies that it applies to bites, then a defense can be based upon the contention that the injury was not by means of a bite. Did the dog bite or did it jump, frighten, trip, etc.?

It is not necessary that the skin be broken, however, in order for the statute to apply. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176 [80 Cal.Rptr.2d 173].)

Defense based on trespass

Trespass is a defense under the California dog bite statute. Fullerton v. Conan (1948) 87 Cal.App.2d 354 (against clear prohibition by dog owner, young child opened a gate and wandered into dog owner's back yard while she and her mother were guests; held that the child was trespassing and therefore no liability under the dog bite statute).

The dog bite statute protects a victim "while in a public place or lawfully in a private place, including the property of the owner of the dog." This prevents trespassers from obtaining recovery. (Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358.)

Note, however, that a trespasser still can base a claim on strict liability for a dangerous propensity, or negligence. There is no Judicial Council jury instruction on this point, but BAJI Jury Instruction 6.67 (Dog Bite Statute) confirms that recovery is possible, in that it states: "One who is not lawfully on the property of a dog owner is a trespasser thereon, and if the trespasser is bitten by the dog, the question of liability must be determined in accordance with the rules of law now to be stated."

A person is considered to be lawfully on private property if he is there in furtherance of a duty required by law (i.e., a police officer or a mail carrier), or was there as a result of an express or impled invitation. See Judicial Council of California Civil Jury Instructions, Instruction 463 (Dog Bite Statute), which states: "[Name of plaintiff] was lawfully on private property of the owner if [he/she] was performing any duty required by law or was on the property at the invitation, express or implied, of the owner."

An invitation to private property may be implied. "Every man, by implication invites others to come to his house as they may have proper occasion either of business or courtesy or information, etc." (Duval v. Rowell, 124 Cal.App.2d Supp. 897, 901 [269 P.2d 249]; DeLay v. Braun, 63 Cal.App.2d 8, 10 [146 P.2d 32]; Cambou v. Marty, 98 Cal.App. 598, 601 [277 P.2d 365].)

It has been held that the reference to trespass in the dog bite statute means a technical trespass, not a criminal trespass. In Bauman v. Beaujean (1966) 244 Cal.App.2d 384, the defendant's dog bit a young child who was playing the defendant's backyard. The issue was whether the defendant expressly or impliedly invited the victim there. The Court first held that the plaintiff had to prove an express or implied invitation. (244 Cal.App.2d at pp. 387-388.) Finding that there was substantial evidence to support the jury's finding that there was no invitation, the Court turned to the issue of trespass. The New York rule was adopted: 

The correct rule is thus stated in Heller v. New York, N. H. & H. R. Co., 265 F. 192, 194: "Every unauthorized entry on another's property is a trespass and any person who makes such an entry is a trespasser. A trespasser is one who goes upon the premises of another without invitation, express or implied, and does so out of curiosity, or for his own purposes or convenience, and not in the performance of any duty to such owner. It is not necessary that one making such an entry should have any unlawful intent. ... A child, even of tender years, may be a trespasser. [Citing cases.]"

In Fullerton v. Conan (1948) 87 Cal.App.2d 354, the trial court found that a five- year-old child, who was lawfully on the premises, became a trespasser because she went into the backyard after being told not to.

Nevertheless, the invitation may be implied from the circumstances. In Smythe v. Schacht (1949) 93 Cal.App.2d 315, the court found that there was sufficient evidence to sustain the inferential finding of the jury that there was at least an implied invitation to play in that portion of the yard where the assault by the dog took place. 

Defense based on provocation, comparative negligence and assumption of the risk

Although Civil Code section 3342 appears to impose strict liability in all instances where the victim is not a trespasser and the dog was not on duty for the military or the police, California courts have denied recovery to victims who (a) provoked the dog, (b) negligently caused the attack, or (c) assumed the risk of a dog attack. Burden v. Globerson (1967) 252 Cal.App.2d 468, 471. Such defenses exist "in spite of the language of Civil Code section 3342." Burden v. Globerson, ibid., at p. 470.

The court decisions are directly opposed to the wording of the statute, and yet, California courts have always permitted these defenses. See Johnson v. McMahon (1998) 68 Cal.App. 4th 173, 176, "[t]he defenses of assumption of the risk and contributory negligence may still be asserted" (citing Witkin, 6 Summary of Cal. Law, Torts, sec. 1225, p. 659 (9th Ed. 1998).)

We entertain no doubt that in adopting the statute here in question the Legislature did not intend to make the liability of the owner absolute and render inoperative certain principles of law such as assumption of risk or wilfully inviting injury, which over a long period of time have been established in our system of jurisprudence. While the Dog Bite Statute does not found the liability on negligence, good morals and sound reasoning dictate that if a person lawfully upon the portion of another's property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof. (Smythe v. Schacht (1949) 93 Cal.App.2d 315, 321-322.)

Provocation, comparative negligence and assumption of the risk are for the trier of fact to decide. (Burden, supra.) These defenses are discussed together because the court opinions frequently mix the concepts.

The cases provide some guidance as to what conduct of the plaintiff may, or may not, constitute provocation, comparative negligence, and assumption of the risk:

Recovery permitted

  • Walking toward a dog did not constitute provocation. Chandler v. Vaccaro (1959) 167 Cal.App.2d 786.
  • Holding packages, walking toward a dog and its owner, and addressing the owner did not constitute contributory negligence. Eigner v. Race (1942) 43 Cal.App.2d 506.
  • Where the plaintiff was seated in front of the dog, rising up and turning to face the dog did not constitute provocation. Westwater v. Southern Pacific Co. (1940) 38 Cal.App.2d 369.
  • Reaching toward a dog to pet him did not constitute contributory negligence. Ellsworth v. Elite Dry Cleaners, etc., Inc. (1954) 127 Cal.App.2d 479.
  • Playing with a dog and patting his head did not constitute assumption of the risk. Smythe v. Schacht (1949) 93 Cal.App.2d 315. 
  • Feeding a dog did not constitute assumption of the risk. Burden v. Globerson (1967) 252 Cal.App.2d 468.
  • Helping to wrap and transport an injured dog did not constitute assumption of the risk. Davis v. Gaschler (1992) 11 Cal.App.4th 1392. 
  • Initiating contact with a dog that previously acted friendly toward the plaintiff did not constitute assumption of the risk. Burden v. Globerson (1967) 252 Cal.App.2d 468.
  • Initiating contact with a dog that did not growl or bark when plaintiff was nearby did not constitute assumption of the risk even though the owner said the dog was a watchdog, trained to keep intruders out, and vicious. Burden v. Globerson (1967) 252 Cal.App.2d 468.

Recovery denied 

  • Where plaintiff saw a dog barking with hostility inside a fenced yard, and plaintiff opened the gate to the yard and went inside, plaintiff was deemed to have assumed the risk of being bitten. Gomes v. Byrne (1959) 51 Cal.2d 418.
  • "The elements of the defense of assumption of risk are a person's knowledge and appreciation of the danger involved and his voluntary acceptance of the risk. Thus if plaintiff recognized the danger that the dog would bite him, his knowledge was sufficient although he did not know whether the dog had a history of viciousness." Gomes v. Byrne (1959) 51 Cal.2d 418.
  • A trainer of commercial guard dogs was held to have assumed the risk of being bitten. Reynolds v. Lancaster County Prison (1999) 325 N.J. Super. 298, 739 A.2d 413.

In dog bite law, "provocation" is a specific "breed" of comparative negligence. Legal provocation is not unlike self-defense; the proper test is whether the violent action of the dog was a justifiable response to something that the victim was in the process of doing to the dog. For example, a lengthy mauling, consisting of repeated bites, or a bite that was accompanied by shark-like shaking intended to deeply lacerate, would hardly ever be a justifiable response to accidental, even painful, conduct by a person.

Application of the doctrine of assumption of the risk requires appreciation of the danger involved. (Gomes v. Byrne (1959) 51 Cal.2d 418.) In dog bite cases, the defense has a heavy burden to prove, because dogs are commonly regarded as "man's best friend." There is a well-established legal presumption that, absent provocation, "a domestic animal is presumed not to have vicious tendencies." See Drake v. Dean (1993) 15 Cal.App.4th 915, 921 ("Harming a human being is regarded as contrary to a dog's nature"); see also Restatement 2nd of Torts, section 509, comments d and f ("[Because][t]he great majority of dogs are harmless... the possession of characteristics dangerous to mankind... is properly regarded as abnormal to them.")

Defense to claims by veterinarians, pet sitters, groomers and dog handlers generally

Because of the normal risks inherent in their occupations, people who work with dogs usually are unable to get compensated, even for medical bills, but there are four exceptions to the rule. ​One is where the victim was bitten prior to or after actually working on the dog. Another is where the owner knew the dog was a "biter" but failed to disclose that fact to the victim or someone at her company. The third is where the victim was working as an employee of the dog owner. The fourth is where the victim had a contract making the dog owner liable and the dog owner signed the contract. There also may be other situations where a victim cannot have assumed any risks under the particular circumstances.

The California Supreme Court has ruled that with certain exceptions all persons who handle dogs as part of their occupation are deemed to have assumed the risk of being bitten while the dogs are in their custody. Priebe v. Nelson (2006) 39 Cal.4th 1112. The court expanded the "veterinarian's rule" -- a rule that prevents veterinarians from recovering compensation for dog bites -- to cover all persons who work with dogs, such as dog walkers, dog groomers, employees of pet shops, persons handling dogs in transport, paid house sitters, dog obedience trainers, and trainers of guide dogs and other service dogs. This decision affects a large number of people, in that the number of people throughout the USA who were bitten by dogs in a work setting (meaning canine workers as well as other kinds such as plumbers, utility workers, etc.) was 16,526 in the most recent year studied. ("Nonfatal Dog Bite-Related Injuries Treated in Hospital Emergency Departments - United States, 2001," Centers for Disease Control MMWR Weekly, 52(26); 605-610 (July 4, 2003).)

However, there are important exceptions to the veterinarian's rule:

  • If [defendant] knew or should have known of his dog’s vicious propensities and failed to inform [plaintiff] of such facts, he could be found to have exposed [plaintiff] to an unknown risk and thereby be held strictly liable at common law for her injuries. Under such circumstances, the defense of primary assumption of risk would not bar [plaintiff]’s claim since she could not be found to have assumed a risk of which she was unaware.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116.). See also the pointed reference to "demon dog" in Griffiths v. Schafer (1996)  223 Ga. App. 560, 478 SE2d 625: ("[T]here may come a case where, for example, veterinary employees have never dealt with a particular dog and are actively misled by an owner about its tendencies, or there may be a case involving a "demon dog" ... whose propensities for violence extend far beyond any risk such employees may ever be deemed to assume in their employment.")
  • "We emphasize that the defense of assumption of the risk extends only to the danger which the injured person has knowingly assumed; i.e., the danger the dog will bite while being treated." (Nelson v. Hall, (1985) 165 Cal.App.3d 709, footnote 4 emphasis in original.) 
  • The "veterinarian's rule" does not apply when the defendant dog owner has not contracted for the services of the plaintiff.  In Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 14 Cal.Rptr.2d 679 (cited with approval in Priebe) a dog owner sought to avoid liability for a dog bite on the  ground that plaintiff was a professional breeder and handler of dogs.  But because the plaintiff had encountered the dog not in her capacity as a breeder, but as a Good Samaritan who took over the handling of the injured dog, there was no relationship between the parties that justified exonerating the defendant from the usual standard of care. 
  • The veterinarian's rule does not apply where control of the dog was still in the hands of the dog owner or defendant as opposed to the victim. Prays v. Perryman (1989) 213 Cal.App.3d 1133, 1138 (cited with approval in Priebe).

An exhaustive discussion of assumption of the risk can be found in (See also Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 (holding that the firefighter's rule did not apply to a private safety employee's claim against a third party for starting a fire in which the employee was injured; discussion included all variants of the firefighter's rule including the veterinarian's rule). 

It should be noted that courts outside the State of California have treated this issue differently. See, for example, Cole v. Hubanks, 681 N.W.2d 147 (Wis. 2004), holding that the firefighters' rule — a form of assumption of risk, and the basis for the veterinarian's rule — does not apply in case where police officer, duty-bound to enforce the leash law, was bitten by a stray as she tried to capture it, and sued the dog's owner for negligence at common law and for violation of a statute creating tort liability for dog bites. Mulcahy v. Damron (1991 Ariz. Civ. App.) 169 Ariz. 11, 816 P.2d 270 held that the Arizona strict liability statute, which is virtually identical to California Civil Code section 3342, imposes liability on a dog owner whose dog injured a dog groomer who performed grooming services to dogs boarded at a kennel; the court noted that the strict liability statute made the owner "virtually an insurer of the dog's conduct," citing Massey v. Colaric (1986) 151 Ariz. 65, 66, 725 P.2d 1099, 1100-1101. Hass V. Money (Okla. Civ. App. 1993) found that the state's dog bite statute, which was the same as California's in its strict liability effect, imposes liability on the owner of a dog whose dog bit a dog walker working for a clinic where the dog was boarded. Dicta in Reynolds v. Lancaster County Prison (1999) 325 N.J. Super. 298, 739 A.2d 413 provides an exception if the dog had a history of biting people and the owner neglected to reveal it.

Defense to claims by police officers

Ferocious pit bull attacks have required the intervention of police officers for the protection of the victim. Intervening to protect a victim exposes the officer to the danger of an attack. If an officer were attacked by a dog while attempting to protect a victim from the dog, the dog owner (or the insurance company) might argue that the "firefighter's rule" precludes suit by the officer. If the officer's injuries occurred under other circumstances, however, the "firefighter's rule" probably would not prevent recovery.

A special rule has emerged in the law of torts, which limits the duty of care that the public owes to firefighters and police officers. The so-called "firefighter's rule" precludes recovery for injuries suffered as a direct consequence of responding to calls in the line of duty. (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061-1062.) Stated in its most traditional terms, the firefighter's rule "is that which negates liability to firemen by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman." (Giorgi v. Pacific Gas  & Elec. Co. (1968) 266 Cal.App.2d 355, 357 [72 Cal.Rptr. 119].) Although the doctrine first gained currency in American common law more than a century ago (see, e.g., Gibson v. Leonard (1892) 143 Ill. 182 [32 N.E. 182], overruled on other grounds in Dini v. Naiditch (1960) 20 Ill.2d 406 [170 N.E.2d 881, 886, 86 A.L.R.2d 1184]), it was not adopted in California until 1968. (Giorgi v. Pacific Gas & Elec. Co., supra, 266 Cal.App.2d 355.) Subsequently, in Walters v. Sloan, supra, 20 Cal.3d 199, the California Supreme Court not only gave its imprimatur but extended the rule to police officers. (Id. at p. 202.)

The undergirding legal principle of the rule is assumption of the risk, i.e., the "legal conclusion that the person who starts a fire owes no duty of care to the firefighter who is called to respond to the fire. [Citations.]" (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541 [34 Cal.Rptr.2d 630, 882 P.2d 347]; Knight v. Jewett (1992) 3 Cal.4th 296, 309-310, fn. 5 [11 Cal.Rptr.2d 2, 834 P.2d 696]; see Walters, supra, 20 Cal.3d at p. 204.) " 'In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.' " (Walters, supra, 20 Cal.3d at p. 205, quoting Krauth v. Geller (1960) 31 N.J. 270 [157 A.2d 129, 131].)  This is referred to as "primary" assumption of the risk, meaning that the dog owner has no duty to protect the police officer, firefighter, veterinarian or canine worker. This form of the doctrine should be contrasted with "secondary" assumption of the risk, which applies when, for instance, two karate students are sparring as part of their training; in the latter case, there is a duty from one to the other, but they have voluntarily waived it, accepting the risk of being hurt during their match.

Like most legal principles, the firefighter's rule is not without its exceptions. "The firefighter does not assume every risk of his or her occupation. [Citation.] The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene. [Citations.]" (Neighbarger, supra, 8 Cal.4th at p. 538; see also Krauth v. Geller, supra, 157 A.2d at pp. 131-132.) "In Walters, the majority [also] recognized that the fireman's rule does not preclude recovery when the defendant has violated a statute and the officer ' "suffering ... the injury ... was one of the class of persons for whose protection the statute ... was adopted." ' (20 Cal.3d at pp. 206-207, quoting Evid. Code, § 669, subd. (a)(4).)" Calatayud v. State of California, 18 Cal.4th at p. 1063. The exception at issue in Calatayud is contained in the Civil Code. Subdivision (a)(1) of Civil Code section 1714.9 provides that "[n]otwithstanding statutory or decisional law to the contrary, any person is responsible not only for the results of that person's willful acts causing injury to a peace officer, firefighter, or any emergency medical personnel employed by a public entity, but also for any injury occasioned to that person by the want of ordinary care or skill in the management of the person's property or person, in any of the following situations: [¶] (1) Where the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel." The Court held, however, that a police officer who was injured by another officer while effecting an arrest cannot sue the other officer. Farnam v. State of California (2000) 84 Cal.App.4th 1448 specifically applied the "firefighter's rule" to prevent an officer from recovering compensation for dog-inflicted injuries, where the dog was a police dog and the defendant was a fellow officer who was using the dog to effect an arrest.

It is undecided in California whether the "firefighter's rule" would apply to a dog attack, where the victim is a police officer (except where the defendant is another police officer who was effecting an arrest, as in Farnam). It is reasonable to speculate that some circumstances would result in liability, while others would not. For example, if the officer responded to a report that a dog was attacking a pedestrian, and the officer was injured while trying to save the pedestrian from further injuries, the officer probably would not be permitted to recover against the dog owner. However, the officer might be able to recover if he or she was attacked while writing a speeding ticket, by a dog that was owned by someone other than the people in the car, and was off-leash in a city that had a leash law.

in other states, courts have refused to apply the "fireman's rule" to police officers. See, for example, Cole v. Hubanks, 681 N.W.2d 147 (Wis. 2004), holding that the firefighters' rule does not apply in case where police officer, duty-bound to enforce the leash law, was bitten by a stray as she tried to capture it, and sued dog's owner for negligence at common law and for violation of a statute creating tort liability for dog bites. 

Are the defenses of comparative negligence and provocation fair to the victim?

A few states that have strict liability dog bite statutes do not allow the defense to raise the issue of comparative negligence.

"Some states impose liability upon an individual without regard to fault. The ones most frequently encountered are 'dog bite' statutes... [Par.] In cases brought under 'dog bite' statutes, the authority is split, with some courts holding that comparative negligence is applicable while others hold it is not to be applied." (Clark Boardman Callaghan, Comparative Negligence Manual (3rd Ed.), sec. 5.34, pp. 5-51.) 

The courts apply concepts of comparative negligence, provocation, assumption of the risk, and consent in a manner that cannot always be predicted -- and, some would say, is completely arbitrary. For example, Illinois holds that an 18-moth-old baby who fell on a dog and got mauled did not provoke the dog because its reaction was out of proportion to the provocation itself. (Wade v. Rich (1993, 5th Dist.) 249 Ill.App.3d 581.) Is the court using a "reasonable dog" standard? Not really. It is trying to temper other Illinois cases that hold that 2-year-olds can provoke dogs. (See, i.e., Von Behren v. Bradley (1994 Ill.App. 4th Dist.) 203 Ill. Dec 744, 640 NE2d 664.) Clearly the Wade court is using the doctrine of provocation for the convenience of the court.

Liability for battery 

Battery is defined as a harmful contact intentionally done. Ashcraft v. King (1991) 228 Cal.App.3d 604, 611. To constitute a battery, an act has to be unconsented to; an illegal act is not required. Barouh v. Haberman (1994) 26 Cal.App.4th 40. In that case, the defendant slapped the plaintiff on the side of his head, without warning.

If the defendant intentionally caused the dog to attack the plaintiff, a cause of action for battery may be stated, with a request for punitive damages. Intent to cause harm may be proved several ways:

"If the defendant acts with the intention of bringing about some type of harmful or offensive contact with plaintiff, he or she will be liable for any resulting injuries, even though he or she may not have intended the particular harm that resulted or any harm at all. Although the general definition of battery refers to 'intentional contact,' the authorities nevertheless indicate that an intent to cause an apprehension of harmful or offensive contact will suffice to create liability for resulting actual contact." Levy, Golden, Sacks, 3 California Torts (1994), "Assault and Battery," section 41.01[3][b], p. 41-8. 

Liability for failure to vaccinate 

A dog owner is required to vaccinate his or her dog with an anti rabies vaccine. Health and Safety Code section 1920, subdivision (b), provides in part that "[e]very dog owner, after his or her dog attains the age of four months, shall, at intervals of time not more often than once a year, as may be prescribed by the state department, procure its vaccination by a licensed veterinarian with a canine anti rabies vaccine ...." County ordinances frequently contain the same requirement.

A bite victim who has to submit to rabies treatment can base a cause of action on the fact that the attacking dog was over four months old when it bit plaintiff and had not been vaccinated against rabies. Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399-1400.

Liability for injuries inflicted in ways other than a bite

The scienter cause of action can be used where the injuries were inflicted in ways other than a bite. The victim must prove the existence of a dangerous propensity that was known to the defendant.

A dangerous propensity can include dangerous playfulness and over-demonstrative affection:

"[O]ne who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under [section 509 of the Restatement] for harm done by its dangerous playfulness or over-demonstrative affection .... [Par.] ... [L]ikewise [i]f the possessor knows that his dog has the playful habit of jumping up on visitors, he will be liable without negligence when the dog jumps on a visitor, knocks him down and breaks his hip .... " (Restatement Second of Torts, sec. 509, comments (c) and (i), cited in Drake v. Dean, supra, 15 Cal.App.4th at p. 922.) 

The treatise California Torts states:

"The type of propensity necessary to hold a possessor strictly liable for injuries caused by a domestic animal need not necessarily be the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. On the contrary, any propensity on the part of an animal that is likely to cause injury to human beings, under the circumstances in which the party controlling the animal places it, is a dangerous or vicious propensity within the meaning of the law. *** The tendency of a dog to jump on people has also been held to constitute a dangerous propensity." (1 California Torts (1994), "Strict Liability -- Animals," sec. 6.10[2][a], p. 6-7.) 

However, it should be noted that evidence that an animal had infrequently jumped against persons was held insufficient to support a verdict when plaintiff was knocked to the ground when the dog ran into the back of her legs. (Hagen v. Laursen (1953) 121 Cal.App.2d 379.)

Liability for a dog's wounding of other animals 

California Civil Code section 3341 provides that the owner, possessor or harborer of a dog that wounds certain animals -- not including dogs and cats -- must pay damages and costs of suit:

3341.  The owner, possessor, or harborer of any dog or other animal, that shall, on the premises of any person other than the owner, possessor, or harborer of such dog or other animal, kill, worry, or wound any bovine animal, swine, horse, mule, burro, sheep, angora goat, or cashmere goat, or poultry, shall be liable to the owner of the same for the damages and costs of suit, to be recovered in any court of competent jurisdiction
1. In the prosecution of actions under the provisions of this chapter, it shall not be necessary for the plaintiff to show that the owner, possessor, or harborer of such dog or other animal, had knowledge of the fact that such dog or other animal would kill, wound or worry bovine animals, swine, horses, mules, burros, sheep, goats, or poultry. [ ... ]

For cases involving the negligent injury to or killing of a dog, see When a Dog Is Injured or Killed.

Landlord liability for dog bites inflicted by tenant's dog

Under some circumstances, a California landlord can be held liable when a dog belonging to a tenant bites a person. For example, the landlord might have been taking care of the dog, or might have failed to repair a gate or fence. In such cases, the liability of the landlord would be based upon negligence.

A commercial landlord can be held liable for a dog attack if he 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. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated: "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."

In the Portillo case, the plaintiff was bitten in a liquor store by a dog owned by the tenant who was operating the business. The court noted that it is reasonably foreseeable that guard dogs in commercial establishments open to the public will injure someone. The court held that the landlord could not avoid liability by failing to inspect the premises and thereby claim that he had no knowledge of the dog.

A landlord can be held liable when a dog belonging to a tenant bites a person, if the landlord or his representatives possessed actual knowledge of the dogís viciousness prior to the attack, and could have removed the dog before it injured the victim. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504. The essential difference between the duty of a residential landlord and that of a commercial landlord cases is that a commercial landlord has a duty to inspect the premises throughout the term of the tenancy, while a residential landlord does not because the tenant has a right of quiet enjoyment. In Uccello (supra), the court said the following about residential landlords:

"[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." Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.

At the commencement of a rental term, and when it expires, a landlord of residential or commercial property has the legal duty to inspect the premises and remedy dangerous conditions. (California Civil Jury Instructions, 1006 (Landlord’s Duty); Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal. App. 4th 608.) An inadequate fence or gate in need of repair or replacement is a dangerous condition if the landlord knows that it is to be used for the purpose of confining a dog or another animal that, if not confined, can cause damage. (Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446.)

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. The plaintiff sued the dog's owner and the owner's residential landlord. The court held that the landlord could be liable, explaining the law as follows:

"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." 

Landlord liability for failure to warn about a vicious dog in the neighborhood

In Wylie v. Gresch (1987) 191 Cal. App. 3d 412 it was held that a landlord in California has no duty to warn his tenants about the presence of a vicious dog in the neighborhood. 

Liability of store for allowing dog on the premises

A store, bar or other public establishment (referred to simply as a "store") can be held liable for a dog bite or a trip-and-fall caused by a dog if the store allows the dog to be present.

In Baley v. JF Hink & Son (1955) 133 Cal. App. 2d 102, the plaintiff was injured when she tripped over a small dog in a department store. The plaintiff had been shopping and did not see the dog, which was on a leash. The Court of Appeals held that the facts supported a claim against the store based on negligence:

"[I]t was the duty of respondent Hink [i.e., the store] to exercise ordinary care for the safety of appellant [the plaintiff]. 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. Appellant was a business invitee and it was the duty of respondent Hink to exercise reasonable care to maintain supervision and reasonably safe aisles for its customers. ... Here the hazard of another customer bringing a dog into the crowded aisles of a department store makes the defendant department store negligent particularly in view of the fact that the evidence shows that the dog had been brought into the store on previous occasions. The jury could have concluded that the department store had notice of the hazard." 133 Cal.App.2d at pp. 111 - 112.

The court relied heavily on Hodge v. Weinstock Lubin & Co (1930) 109 Cal.App. 393, in which it was held that "[i]t was the defendant's duty, when it invited the public into its store, to exercise ordinary care and prudence to keep the aisles and passageways of the premises in and through which, by their location and arrangement, a customer in making purchases was induced to go, in a reasonably safe condition so as not unnecessarily to expose the customer to danger or accident." 109 Cal. App. at pp. 396-397.

Baley cited cases from other jurisdictions and therefore is a noteworthy case beyond California. 

Employer Liability When Employee Bitten by Dog

If an employee is injured on the job, his employer is required to compensate him under the Labor Code provisions dealing with workers compensation. Therefore a postal worker, utility repairman, or FedEx delivery person can make a workers compensation claim if bitten by a customer's dog. The same is also true of a housekeeper. In Rosa Pale v. Sabrina Coble (2006) 8 Cal.App.4th ___, WCAB Rptr. 10, 332, non-published, https://www.workcompcentral.com/pdf/2006/misc/DogBiteCase.pdf, the Fourth District Court of Appeal held, "Workers' compensation is the exclusive remedy available to the plaintiff attacked by the plaintiff's employer's dog during the course of employment [as a housekeeper], and the plaintiff may not pursue an additional action against the employer under section 3342." See generally the the compensation provisions of Division 4 of the Calfornia Labor Code (Workers' Compensation and Insurance).

However, the amount of money paid by "comp" is completely inadequate when it comes to disfiguring scars, pain and suffering. It would be great if the victim could sue the dog owner, but it normally is not possible. The reason is the so-called "veterinarian's rule" which says that if you are hired to work with dogs or other animals, you are deemed to have accepted the risk of injury because it's so common to get bitten or injured by a dog that is being treated. This rule, which is a variation on the defense of "assumption of the risk," has been expanded to include every type of person who works with dogs.

Nevertheless, Attorney Kenneth M. Phillips was able to collect compensation from homeowners who employed a pet sitter, and from the pet sitting company that sent the pet sitter to that residence, despite the "veterinarian's rule" and the doctrine of assumption of the risk. The homeowners and pet sitting company did not have workers compensation insurance but the homeowner had homeowners insurance. The homeowners had dogs, including one that was known to bite. The company found the pet sitter through Craigslist and sent her to the residence to take care of the dogs for several days while the homeowners were on a trip. The homeowners gave the pet sitter two pages of detailed instructions about taking care of the dogs and the house. She was bitten on the first night of her assignment. Her injuries were substantial, including wounds to her lips that resulted in terrible scars. Phillips sued the homeowners and the pet sitting company as uninsured employers, based in large part on all the instructions given to the pet sitter. Phillips successfully contended that the pet sitter was an employee of both the company and the homeowners, and as such was entitled to sue them because they did not have workers compensation insurance. The doctrine of assumption of the risk did not apply because the pet sitter, according to Phillips, was an employee. The case settled for a 5-figure sum prior to trial, which was paid in part by the company and in part by the homeowners insurance which covered the residence. 

California permits a person to recover damages for canine-inflicted injuries of all types, based on the doctrine of negligence. The California rule of negligence in dog cases is similar to that observed by almost all American states, as established by the Restatement of Torts (2d), section 518, which provides, "Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if ... (b) he is negligent in failing to prevent the harm." (Cited in Drake v. Dean (1993) 15 Cal.App.4th 915, 924.) The "harm" might consist of a bite or another means of injury, such as a scratch or violent collision that causes a broken limb.

The non-bite cases set forth a variety of circumstances that are considered to be negligence. It can be based on mishandling a dog (Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191  [horse in a parade]), ineffectively controlling or failing to control a dog (Drake v. Dean (1993) 15 Cal.App.4th 915 [leaping dog], putting a dog in a situation that foreseeably can cause injury (Baley v. J.F. Hink & Son (1955) 133 Cal.App.2d 102  [small dog on a leash]), or violating an animal control law (Delfino v. Sloan (1994) 20 Cal.App.4th 1429 [violation of  leash law]). 

In Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191, a parade horse injured two bystanders. The horse had never before manifested a dangerous propensity. On that day, however, the horse was "rearing and whirling and backing around." 15 Cal.2d at 193. The court held that nonsuit was improper on the count that alleged negligent supervision and management of the horse. The case creates liability for mishandling a dog or any other animal.

In Drake v. Dean (1993) 15 Cal.App.4th 915, a dog knocked a woman to the ground. The court cited with approval the following general rule: "[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from that negligence." 15 Cal.App.4th at 926."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." 15 Cal.App.4th at 926.

In Baley v. J.F. Hink & So, (1955) 133 Cal.App.2d 102 , liability was found when a small dog, on a leash, ran against plaintiff's leg, causing her fall. The court reasoned that, because the parties were in a department store, the dog owner should have exercised greater control and the store could be held liable for negligence. Baley thus holds that it is negligent to place or permit a dog to be in a situation that foreseeably can result in injury. Restatement Second, section 518, comment (h), cautions that "even ordinarily gentle animals are likely to be dangerous under particular circumstances." See also Liability Based on Other Grounds in California

Liability for ineffective control does not rest on proving defendant's animal is vicious toward people generally. Restatement Second, section 518, comment (h), recognizes that "even ordinarily gentle animals are likely to be dangerous under particular circumstances." For that reason, an animal owner is required to (a) know the animal's normal tendencies, (b) know which normal tendencies are likely to be dangerous under particular circumstances, and (c) exercise reasonable care to prevent harm from those normal, but dangerous, tendencies. (Id.)

Proof of dangerous propensity is not required

It is important to note that the negligence cause of action in California does not require proof of a dangerous propensity or knowledge thereof, but only that it was foreseeable that injury would result from a particular set of circumstances involving the dog. "In a negligence action for personal injury caused by a dog, the plaintiff need not plead and prove that the injury was caused by some abnormal trait of the animal. The plaintiff need only prove that the defendant could reasonably have anticipated that the dog's conduct would cause injury and that the defendant did not exercise reasonable care to control the dog." (Levy, Golden, Sacks, 1 California Torts (1994), "Strict liability -- Animals," section 6.14, p. 6.26.)

The violation of an animal control law as constituting negligence per se

The doctrine of negligence per se is codified in Evidence Code section 669, as follows:

669. (a) The failure of a person to exercise due care is presumed if:

(1)  He violated a statute, ordinance, or regulation of a public entity;

(2)  The violation proximately caused death or injury to person or property;

(3)  The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4)  The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(B)  This presumption may be rebutted by proof that:

(1)  The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2)  The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.

Delfino v. Sloan (1994) 20 Cal.App.4th 1429, holds that a local ordinance, penalizing an owner whose dog is allowed to roam public streets unleashed, is an animal control law enacted to protect public health and safety. For that reason, the violation of a leash law or other animal control law constitutes negligence per se. "And if the evidence establishes that the plaintiff's or defendant's violation of the statute or ordinance proximately caused the injury and no excuse or justification for violation is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care." (Witkin, 6 Summary  of California Law (9th Ed.), "Negligence Per Se," sec. 818, pp. 170 et seq. See also Rollins v. Hedin (1952) 114 Cal.App.2d 488, 490, in which the court stated that "[a] 'leash ordinance' such as here involved is designed for the protection of the public from dogs running at large and where its violation proximately causes injury to a plaintiff he may recover therefor against the owner." Also see Brotemarkle v. Snyder (1950) 99 Cal. App. 2d 388, in which the doctrine of negligence per se caused the owner of a dog to be held liable for injuries to a person riding a motor scooter, when the at large dog ran into the scooter and knocked it down.

It is not a defense, in a negligence per se action based upon violation of a leash law, that the dog was controlled by some means not enumerated in the ordinance itself. In Garson v. Juarique (1979) 99 Cal.App.3d 769, the court held that when an animal control law requires a particular action, such as keeping a dog on a physical leash, the requirement is not satisfied by taking a similar action, such as keeping a dog under verbal command:

In ascertaining the intent of this ordinance, we think that it is significant that the legislative body chose only to enumerate several particular ways to restrain a dog; it did not refer to the possibility that other ways might also satisfy the ordinance. This enumeration of particulars suggests that the doctrine of expressio unius est exclusio alterius applies. Under this doctrine, the expression of one thing in a statute implies the intentional exclusion of the omitted thing. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 , 196 [132 Cal.Rptr. 377, 553 P.2d 537]; County of Madera v. Superior Court (1974) 39 Cal.App.3d 665 , 670 (114 Cal.Rptr. 283].) Since the ordinance in question expressly mentioned several particular means of preventing a dog from being deemed to be at large, yet omitted to mention the possibility of compliance through other conceivable means -- such as verbal commands given to a trained dog -- an inference arises that the means enumerated were intended to be exclusive.

By mentioning only physical restraints, the ordinance demonstrates that only such restraints were thought to provide adequate protection to the public. Psychological restraints, such as commanding a well-behaved and trained dog to sit, were not contemplated as providing adequate protection. As defendant's dog's own conduct makes clear, psychological restraints permit the public's protection to become subject to the vagary of the individual dog. We believe that the ordinance in question was intended to prevent that very situation. We therefore hold that the trial court erred when it concluded that defendant's dog was not "at large" in violation of the statute during the time that it apparently submitted to its master's command to sit on the lawn. On the contrary, the dog was at large as soon as the defendant brought the dog onto his unenclosed front yard without any physical restraints. (Garson v. Juarique (1979) 99 Cal.App.3d 769, 774.)

Dog owners frequently keep their dogs tied to benches, parking meters and other objects. This practice not only may violate local leash laws, but is a state misdemeanor. California Penal Code makes it a misdemeanor to affix any animal to anything unless the animal can reach shelter, food and water: 

597t. Every person who keeps an animal confined in an enclosed area shall provide it with an adequate exercise area. If the animal is restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a manner that it will prevent the animal from becoming entangled or injured and permit the animal's access to adequate shelter, food, and water. Violation of this section constitutes a misdemeanor. This section shall not apply to an animal which is in transit, in a vehicle, or in the immediate control of a person.

Local laws also might provide other avenues of liability for dogs that cause injury. For example, a municipal code section might prohibit walking more than a certain number of dogs. Violation of such a provision could constitute negligence per se. For example, here is a section of the Beverly Hills code:

Sec. 5-2.204. Walking dogs. It shall be unlawful for any person owning, controlling, or having in their care or custody, whether upon a leash or not, upon any public street, alley, or public place or upon any unenclosed land or property, four (4) or more dogs at any one time. (5-1.206 Amd.) 

Cities and counties often borrow ordinances from each other. Here is an example from the City of West Hollywood, California:

City of West Hollywood Municipal Code sec. 9.48.010: Adoption of Animal Control Ordinance. Title 10, Animals, of the Los Angeles County Code, as amended and in effect on February 5, 1993, is hereby adopted by reference as the "Animal Control Ordinance" of the City of West Hollywood. A copy of the Animal Control Ordinance has been deposited in the office of the City Clerk and shall be at all times maintained by the Clerk for use and examination by the public.

The doctrines of negligence, comparative negligence, and contributory negligence generally

The law of negligence is extremely complicated and difficult to research. Negligence is a common law doctrine, meaning that it developed through the courts over hundreds of years and in different jurisdictions and countries. It has spouted many related doctrines such as the defenses of comparative negligence and contributory negligence, which are applied daily to new situations. In short, the law of negligence, which includes the cause of action and the defenses thereto, is vast, complicated and changing. Lay persons and attorneys with limited experience are strongly cautioned against evaluating whether any particular incident occurred because of negligence or can be defended successfully under the doctrines related to negligence. For more information about the law of negligence, see Legal Rights of Dog Bite Victims in the USA: Negligence

Tactical importance of negligence cause of action in a dog bite case

In a dog bite case, it is advisable, as a matter of strategy, to plead negligence in the event that, for reasons unforeseen at the time of pleading, the dog bite statute does not apply. For example, an injury that looks like a bite might turn out to be a scratch, so there would be a failure of proof at trial if only the statute were alleged and the judge were not to allow late amendment of the complaint. For more strategy, see Tips and Tricks for Victims' Attorneys. For a downloadable template of the pleading, see Dog Bite Lawsuit Forms

Golden Gate BridgeLike all other American states, California has maintained the common law cause of action based on "scienter" or knowledge of a domestic animal's dangerousness. “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) 15 Cal.App.4th 915, 921.)

The two key elements of a scienter claim therefore are prior dangerous behavior and knowledge of it on the part of the defendant. “A common law strict liability cause of action may ... be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal’s vicious propensities. If [defendant] knew or should have known of his dog’s vicious propensities and failed to inform [plaintiff] of such facts, he could be found to have exposed [plaintiff] to an unknown risk and thereby be held strictly liable at common law for her injuries. (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116, internal citations omitted.)

“ ‘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, internal citations omitted.) Wrongful intent is not required for liability. (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, quoting Prosser, Torts, p. 432.)

 "[T]he gravamen of the action is knowledge of the owner that the beast was the possessor of vicious or mischievous propensities. Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown." (Hicks v. Sullivan (1932) 122 Cal.App. 635, 637-638.) 

Any propensity that is likely to cause injury under the circumstances is a dangerous or vicious propensity within the meaning of the law. (Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 437 [1 Cal.Rptr. 514].) In a dog bite case, the prior behavior may consist of either a vicious bite or behavior that clearly demonstrated the vicious propensity to bite.

The owner's or keeper's knowledge of a dog's vicious or dangerous propensities may be inferred by (1) the general reputation of the dog, (2) the size and breed of the dog, or (3) the fact that the dog is kept chained or muzzled. (Smith v. Royer (1919) 181 Cal. 165, 170; 1 California Torts (1994), "Strict Liability -- Animals," sec. 6.10[3], p. 6-10.)

The question of whether a domestic animal is vicious or dangerous is ordinarily a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601 [123 P.2d 560].)

If the prior bite was fully justified then it would not qualify as vicious, and consequently would not satisfy the requirements of the scienter doctrine. For example, if the dog previously bit a child who was hitting it with stick, the dog's action probably would be regarded as justified and not as demonstrating a dangerous or vicious nature.

The victim of the prior bite must be a human being, not another animal. This is based upon the belief that a dog that fights other animals will not necessarily attack humans. For that reason, a claim of strict liability cannot be based on the sole fact that the attacking dog had previously fought with another dog or other animal. "Knowledge that a dog will fight with other animals does not impute notice that it will attack humans." Belli, 2 Modern Trials 2d.Ed., sec. 35.3, p. 70, citing Sink v. Moore (1966) 267 NC 344, 148 SE2d 265; Fowler v. Helck (1939) 278 Ky. 361, 128 SW2d 564.

However, there has been no study to prove that belief valid. In fact, the experience of Attorney Kenneth Phillips suggests that a significant percentage of bites to humans results from attacks by one dog upon another dog. For that reason, it is his opinion that a dog's propensity to attack other dogs clearly makes that dog dangerous to people. (See the relevant section of Dangerous and Vicious Dogs.)

The scienter cause of action has limited application in California. Because this legal theory is the corollary of the one bite rule, and because the fundamental purpose of the dog bite statute is to abolish the one bite rule in most respects, there is no need to employ the scienter theory when the dog has bitten a person and the defendant is the dog owner. The doctrine may be indispensable, however, in a dog bite case that aims to establish liability on the part of someone who was not the owner of the dog. Therefore, it is advisable to plead this cause of action in all cases. For that reason, Dog Bite Lawsuit Forms for Plaintiffs' Lawyers contains a form of Complaint with the scienter cause of action as well as causes of action for negligence, the dog bite statute, negligence per se, emotional distress to bystander, landlord liability and more. 

 

Dog Bite Lawsuit Forms

Just about all the documents a plaintiff's attorney will need, for less than the cost of typing them. Complaint, interrogatories, document production requests, admissions, witness list, petition for approval of minor's compromise (structured settlement), order approving minor's compromise, and Kenneth Phillips' 50-page deposition outline that covers every issue that can arise in a dog bite case. Save hours of work with the Dog Bite Lawsuit Forms for Plaintiffs' Lawyers. Good throughout the USA. Download and use today.

Tips Tricks Dog Bite Lawyer

Tips and Tricks for Dog Bite Lawyers is Mr. Phillips' 2-1/2 hour video seminar for plaintiffs' lawyers, containing tips and tricks, practice pointers and winning strategies that cannot be found anywhere else. A highly rated legal best-seller. Covers case selection, establishing liability, dealing with defenses, settlement and litigation throughout the USA. Available for immediate download.