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].)
Cases addressing implied invitations under Civil Code section 3342 look to the dog owner's conduct and knowledge with respect to the plaintiff's presence on the owner's property. (See e.g., Fullerton, supra, 87 Cal.App.2d at pp. 356-358 [no implied invitation existed to enter the backyard where the child plaintiff was bitten by the owner's dog when the owner told the plaintiff's mother to not let her daughter go into the backyard]; Bauman v. Beaujean (1966) 244 Cal.App.2d 384, 387-388 [no implied invitation existed for the child plaintiff to enter the backyard where the dog was kept because the dog owner had never allowed the child to play in the backyard]; Smythe v. Schacht (1949) 93 Cal.App.2d 315, 319-320 [implied invitation existed where the dog owner was aware that the child plaintiff frequently played on the owner's property with the owner's child].)
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:
- 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.
- 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.