A dog bite can be a traumatic event resulting in serious injury. Multiple deaths are reported each year as a result of the most vicious attacks. Often a bite will result in permanent scarring, nerve damage and a significant risk of infection. Many times there is psychological harm that lasts well beyond the physical injury.
The facts regarding dog bite injuries illustrate the frequency and seriousness of these events:
- Every 40 seconds, someone in the United States seeks medical attention for a dog bite related injury.
- It is estimated for every dog bite that is reported, three go unreported.
- Nationwide, as many as one million people annually require medical treatment for dog bites.
- More than 334,000 victims end up in the emergency room.
- More than 4.7 million people, or 2% of the U.S. population, are bitten by dogs each year.
- More than half of all the dog bite victims are children.
- National figures estimate that 60% of dog-bite attacks happen in the home, either by the family or a friend’s dog.
The dog owner can be held liable for the damages of the injured victim of a dog attack pursuant to the legal theories of strict liability and negligence.
STRICT LIABILITY. California has a dog bite statute, which imposes strict liability upon the owner of a dog for damages to any person bitten by the dog. It is not necessary to show the owner was negligent, or had knowledge that the animal was vicious. In California, there is no “one free bite” rule. California Civil Code section 3342 provides as follows:
3342. (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.
(b) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) against any governmental agency using a dog in military or police work if the bite or bites occurred while the dog was defending itself from an annoying, harassing, or provoking act, or assisting an employee of the agency in any of the following:
(1) In the apprehension or holding of a suspect where the employee has a reasonable suspicion of the suspect’s involvement in criminal activity.
(2) In the investigation of a crime or possible crime.
(3) In the execution of a warrant.
(4) In the defense of a peace officer or another person.
(c) Subdivision (b) shall not apply in any case where the victim of the bite or bites was not a party to, nor a participant in, nor suspected to be a party to or a participant in, the act or acts that prompted the use of the dog in the military or police work.
(d) Subdivision (b) shall apply only where a governmental agency using a dog in military or police work has adopted a written policy on the necessary and appropriate use of a dog for the police or military work enumerated in subdivision (b).
This statute is “designed…to prevent dogs from being a hazard to the community.” Davis v. Glaschler (1992) 11 Cal.App.4th 1392, 1399. It is the policy of the law that innocent victims should have their damages covered by those who choose to own dogs that bite. In essence, “the owner is virtually an insurer of the dog’s conduct” (Massey v. Colaric (1986) 151 Ariz. 65, 725 P.2d 1099, 1100, interpreting Arizona’s identically worded dog bite statute). a responsible dog owner is expected to be vigilant in preventing his dog from biting anyone.
Under the dog bite statute, all that the victim needs to show in order to recover from the dog owner is that the victim was “in a public place or lawfully in a private place” when bitten. See Delay v. Braun (1944) 63 Cal.App.2d 8, 146 P.2d 32 (plaintiff was lawfully on defendant’s property when bit by defendant’s dog while walking down the driveway around the home to find defendant to discuss defendant’s tutoring of plaintiff’s grandchild).
Since 75% of dog bite victims are friends, family, neighbors, or persons otherwise known and familiar to the dog owners, California’s strict liability allows for resolution of dog bite cases with minimal interpersonal conflict. Automatic liability means there is no dispute over litigation, assignment of fault, or drawn-out claims processes, which allows the dog bite victim and dog owner to continue their relationship unthreatened.
A second theory of strict liability is that the owner of an animal is strictly liable for injuries caused by the dangerous propensities of the animal, where defendant knows of these propensities, such as a tendency to attack humans. (See Drake v. Dean (1993) 15 Cal.App.4th 915, 19 Cal.Rptr.2d 325). This theory is useful where there is no actual bite that would otherwise make the dog bite statute apply. For example, if the dog knocked someone down as in Drake v. Dean. 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).
NEGLIGENCE. Another theory of liability is to show that the dog owner was negligent. One way to show negligence is to show that the owner allowed the dogs to run unrestrained in violation of the local leash law (for example see Oceanside municipal code section 4.14,), or some other law intended to protect the public from animals, which caused the incident to take place. This is called ‘negligence per se” and places the burden on the defendant to justify the violation of the local law.
Negligence can also be established by showing that the dog owner failed to exercise reasonable control over the dog. In Drake v. Dean 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.
LANDLORD’S LIABILITY. A landlord can be held liable for failure to remove a tenant’s dangerous dog from the property. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated that: “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 that 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 also 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 residential landlord with actual knowledge of a tenant’s dangerous dog can be held liable to an injured victim, but the landlord has no duty to inspect the premises for such an animal. “[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.
INSURANCE COVERAGE FOR ANIMAL LIABILITY
Animal liability coverage is not required in homeowner’s insurance policies. If you own a domestic animal, check your policy to be sure you have coverage for your specific breed of dog, or other pet. Kohn Law Office handled a case that highlighted the importance of reviewing your insurance coverage to be sure you are covered for liability due to your pets. In this case, the client was severely bitten by his neighbor’s German Shepherd dog, resulting in the neighbor being liable for damages of $50,000 or more. Because the neighbor did not have the correct insurance, and had limited financial means, he signed an agreement to pay our client a total of $18,000 in monthly payments over the next 2 years.
Although the dog owner had specifically added animal liability coverage on his homeowner’s insurance policy, for which he incurred an added premium charge, he did not realize that there was a coverage exclusion for injuries caused by certain listed dog breeds, including German Shepherds.
In a second case, a homeowner had an insurance policy paid for by his lender. The homeowner never reviewed the policy, and so was unaware that there was no liability coverage included. Thus when the homeowner’s dog viciously mauled a neighbor, Kohn Law Office took a judgment against the homeowner for $302,000. The homeowner was eventually forced to take out a second mortgage to pay the claim.
The importance of reviewing your insurance policies cannot be stressed enough. The California dog bite law makes the owner of a dog strictly liable to anyone bitten while in a public place or while lawfully in a private place. There is no such thing as “one free bite” in California.