Liability for Injuries Caused by Domestic Animals
With the exception of dog bites, liability for injuries inflicted by a domestic animal – such as a dog, cat, or horse – depends on whether the owner or keeper of such animal knew or had reason to know of the animal’s dangerous propensity or trait that caused the injury, that is, when the owner had “scienter.” If the injuries to or death of a person are due to the actions of an animal that had theretofore been of peaceable disposition, but suddenly and unexpectedly inflicted injury, the owner is not responsible if at the time of the injury the owner was exercising due care in the management of the animal. An unwitting owner of an otherwise apparently peaceful animal is not liable whenever that animal happens to cause injury to another person, in the absence of any negligence whatsoever. (Thomas v. Stenberg, 2012, 206 Cal. App. 4th 654). Conversely, the owner who knows or has reason to know of the animal’s vicious propensities is liable for injuries inflicted upon another or damages to another’s property.
Where the animal is of a species inherently dangerous by its nature, or the animal, although not of a species inherently dangerous, possesses dangerous propensities which were or should have been known to the owner or keeper, is strictly liable for damages to the plaintiff as a result of those propensities or traits. (Staats v. Vintner’s Golf Club, LLC, 2018, 25 Cal. App. 5th 826; Swigart v. Bruno, 2017, 13 Cal. App. 5th 529; Thomas v. Stenberg, 2012, 206 Cal. App. 5th 654).
It has been said that the liability of the owner or keeper is absolute, for the “gist of the action is not the manner of keeping the vicious animal, but the keeping the animal with the knowledge of its 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 the case. (Opelt v. Al G. Barnes Co., 1919, 41 Cal. App. 776, 779). For example, where a dog has a propensity to do a dangerous act upon a person or property, and the owner knows or has reason to know of this propensity, the dog’s owner or keeper has an absolute duty to restrain or confine it. Although liability under these circumstances is often referred to as “absolute,” the defense of comparative negligence or assumption of risk may be raised by the defense in appropriate cases.
Definition of Dangerous Propensity
The plaintiff need not prove that the defendant knew of the animal’s proclivity to inflict the specific type of harm: “It is not the law that a vicious propensity means only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. Any propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangerous or vicious propensity within the meaning of the law.” (Talizin v. Oak Creek Riding Club, 1959, 176 Cal. App. 2d 429, 438).
Where there is a complete absence on the owner’s part of any dangerous propensity of a domestic animal, liability does not attach. Accordingly, the owner of two dogs that ran into and knocked down a visitor was not liable for the injuries, as the dogs were not known to run against persons or objects while playing. (Hagen v. Laursen, 1953, 121 Cal. App. 2d 379). Similarly, the mere fact that a horse became unmanageable on the occasion of the injury is not sufficient to show that it had a vicious propensity or was generally unsafe. (Finney v. Curtis, 1889, 78 Cal. 489).
In Nava v. McMillan (1981) 123 Cal. App. 3d 262, the plaintiff was frightened by two dogs barking and jumping against a chain link fence, causing the plaintiff to run into the street where she was struck by an automobile. The court rejected the plaintiff’s claim on the basis it was not reasonably foreseeable that the mere appearance of the dogs at the fence or their barking might cause a person passing by on the sidewalk to become frightened and run into the street. The court noted that barking and jumping against fences were harmless activities ordinarily associated with and expected from dogs. The court concluded that it would be unreasonable and unfair to hold the owner of a fenced dog liable for injuries sustained by frightened passersby, irrespective of any conduct of the dog and irrespective of any unreasonable or excessive timidity on the part of the passerby. Such a rule, the court noted, would be totally at odds with the present standards which attempt to strike a reasonable balance between the lawful enjoyment of pets by their owners and the personal security of others.
Liability Based on Regulations and Ordinances
A statute, regulation, or ordinance that requires certain safety cautions to be taken to protect persons from being injured by an animal may form the basis of liability for injuries resulting from the animal’s owners or keeper’s noncompliance. Hence, the owner of a dog who violates a leash ordinance designed to protect members of the public from dogs running at large are liable where the violation of the leash law causes injury to a person or damage to property. (Rollins v. Hedin, 1952, 114 Cal. App. 2d 488).
According to the Centers for Disease Control (CDC), some 4.5 million people are bitten by dogs each year. More than 800,000 victims require medical attention and almost 370,000 of them are treated in a hospital emergency department. Many were treated and released but over 6,000 were admitted to the hospital for more intensive treatment. Children are the most frequent victims of dog bites – indeed, injury rates of any age group are highest among children aged 5 to 9 years – and when bitten are more likely to be severely injured. Injuries to the hand or arm were most common (45.3%), followed by injuries to the leg or foot (25.8%) and head and neck. (22.8%). Injuries to the face, head, and neck were most frequently found in infants and young children. Pit bulls were responsible for the highest percentage of dog bites and their bites are more traumatic due to their sharp teeth and a jaw that locks once it sinks in on its target. Since 2016, 58 different breeds and mixed breeds have been involved in fatal dog attacks in the United States, including Akitas, Chow Chows, Doberman Pinschers, Mastiffs, Pit bull types, and Rottweilers. Breed specific legislation (BSL) targets specific breeds of dogs that are thought to be the most dangerous, including Pit Bulls, Pit Bull-type dogs, and Rottweilers.
In California, breed specific ordinances that pertain only to mandatory spay or neutering programs and breeding requirements are permitted. However, no specific dog breed or mix can be declared potentially dangerous or vicious in city or county ordinances. More important than the breed of a dog is how it has been brought up, trained, and treated. The common law did not impose liability against the dog’s owner for injuries caused by the dog biting a person unless there was sufficient evidence showing the dog had a propensity to bite humans. This required evidence that the dog had bitten at least one other person before biting or attacking the plaintiff. Civil Code section 3342, colloquially known as the “Dog Bite Statute,’ discards the “one free bite” rule and makes the owner liable for injuries caused by the first bite the same as a second or subsequent bite: “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.” Civil Code section 3342. A person is lawfully upon the private property of such owner within the meaning of section 3342 when he or she is on such property in the performance of any duty imposed upon him by the laws of California 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. The strict liability dog bite statute is designed to prevent dogs from becoming a hazard to the community by imposing a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place and assigning strict liability for its breach. (Priebe v. Nelson, 2006, 39 Cal. App. 4th 1112).
A landlord owes a duty to a tenant’s invitees to prevent injury from the tenant’s vicious dog when the landlord knows of the dog’s presence and its vicious nature and has the ability to control or remove the dog, or otherwise prevent the harm in time to prevent the injury. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of the rented premises is vested in the tenant, the landlord must have actual knowledge of the dangerous animal’s existence and not mere constructive notice. However, a landlord has no duty to inspect the premises for the purpose of discovering the existence of the animal or its viciousness; only when the landlord has actual notice of the animal, coupled with the right to remove it from the premises, does a duty of care arise. (Salinas v, Martin, 2008, 166 Cal. App. 4th 404; Yuzon v. Collins, 2004, 116 Cal. App. 4th 149; Martinez v. Bank of America Nat. Trust & Sav. Ass’n, 2000, 82 Cal. App. 4th 883; Uccello v. Laudenslayer, 1975, 44 Cal. App. 3d 504).
The landlord’s actual knowledge may be shown not only by direct evidence but also by circumstantial evidence. Actual knowledge can be inferred from the circumstances only if, in light of the evidence, such inference is not based on speculation or conjecture. But only where the circumstances are such that the landlord “must have known” and not “should have known” will an inference of actual knowledge be permitted. (Chee v. Amanda Goldt Property Mgmnt., 2006, 143 Cal. App. 4th 1360).
Defenses – Assumption of Risk
Where the owner, who knows of the animal’s vicious propensities but failed to inform the plaintiff of such facts, the owner can be found liable for exposing the plaintiff to an unknown risk and thereby is strictly liable for the plaintiff’s injuries. Under such circumstances, the doctrine of primary assumption of risk would not bar the plaintiff’s claim since he or she could not be found to have assumed a risk of which she was unaware. (Swigart v. Bruno, 2017, 13 Cal. App. 5th 529) (primary assumption of the risk barred a negligence claim arising out of an endurance horseback riding incident); (Levinson v. Owens, 2009, 176 Cal. App. 4th 1534) (being thrown off a horse is an inherent risk of horseback riding and is one of the most obvious risks of that activity and readily apparent to anyone about to climb on a horse).
A visit to the veterinarian’s office can bring about unpredictable behavior in a normally docile animal, and this is an inherent risk which every veterinarian assumes. The “veterinarian’s rule” provides that a veterinarian or other person whose occupation involves interaction with animals by an animal he or she is treating, knowingly accepts the risks of such employment and generally may not recover for such injuries. This is just another application in a different context of the “fireman’s rule,” which is based on the primary assumption of risk. (Farnam v. State of California, 2000, 84 Cal. App. 4th 1448) (Firefighter’s rule barred suit by police officer who was bitten by highway patrol officer’s dog); (Nelson v. Hall, 1985, 165 Cal. App. 3d 709). Consequently, the veterinarian’s rule barred a kennel worker’s suit for injuries suffered from dog bites in the course and scope of the worker’s job. (Priebe v. Nelson, 2006, 39 Cal. App. 4th 1112). See also (Gregory v. Cott, 2014, 59 Cal. 4th 996) (under the doctrine of primary assumption of risk, veterinarians’ assistants assume the risk of injury just like their credentialed employers).
The veterinarian’s rule applies only to known risks; if the owner intentionally or negligently concealed a particular known hazard of the dog from the veterinarian, which would expose the veterinarian to an unknown risk, the animal’s owner would not be shielded from liability if he or she knew that the animal had a propensity toward vicious behavior and concealed that information from the veterinarian. (Willenberg v. Superior Court, 1986, 185 Cal. App. 3d 185; Nelson v. Hall, 1985, 165 Cal. App. 3d 709).