Can a landlord be held liable for a tenant’s vicious dog bite outside his property?

October 12, 2015 9:22 pm Published by

DONCHIN v. GUERRERO 34 Cal.App.4th 1832, 41 Cal. Rptr.2d 192 (1995)

Can a landlord be held liable for a tenant’s vicious dog bite outside his property?

Yes. The court held that the landlord is responsible if the landlord knew of the dog’s viciousness and if the dog escaped because the landlord failed to keep the dog from escaping because of poor property maintenance.

Is the landlord responsible for a tenant’s dog bite taking place four blocks away?

Yes. If the landlord knew of the dog’s viciousness and the dog escaped because of a fence needing repair.

FACTUAL BACKGROUND

In the morning Dolchin took her dog for a walk on January 28, 1991. As she was walking her dog degendant Guerrerro’s two rottweilers attacked her dog. Donchin then lifted her dog and the rottweilers attacked her. Donchin sufferred injuries including a broken hip. Swift and Guerrero, claimed tyhat Swift never knew of the dogs’ vicious propensities. Swift knew about the rottweilers from the initial rental agreement and from monthly visits where Swift collected rent.
Donchin claimed Swift was aware of the dogs’ viciousness and substantiated the claim with declarations from several individuals including a neighbor, a parcel carrier and a canine expert. Robert Kaylor the neighbor, declared he knew of the dogs’ viciousness. According to Kaylor, the dogs frequently ran loose around the neighborhood, lunging towards both people and other dogs. Kaylor also stated that he was so afraid that he kept a baseball bat outside his back door as a safety measure. United Parcel Service (UPS) employee, Scott Schreiner, declared he avoided entering Guerrero’s yard to deliver packages because he was afraid of the rottweilers. Instead of entering he would toss the packages over the fence into the yard. Animal behavior expert Richard H. Polsky, Ph.D., declared that if the dogs were vicious towards Kaylor and Schreiner, then they were probably vicious towards others, including the landlord Swift during his regular visits to the premises.

COURT’S ANALYSIS

A LANDLORD’S LIABILITY FOR INJURIES BY TENANT’S DOG FOLLOWING ESCAPE FROM LANDLORD’S PREMISES IS DETERMINED BY WHETHER THE LANDLORD KNEW OF THE DOG’S VICIOUS PROPENSITY AND HAD THE ABILITY TO PREVENT THE DOG’S ATTACK.

The court created a two step approach. The first step is to determine the landlord’s knowledge of the dog’s vicious nature. In Uccello v. Laudenslayer (1975) 44 Cal. App.3d 504 [118 Cal. Rptr. 741, 81 A.L.R.3d 628], the court established a landlord can only be liable if he or she had actual knowledge of the dog’s vicious propensity. This actual knowledge rule has been followed in Lundy v. California Realty (1985) 170 Cal. App.3d 813 [216 Cal. Rptr. 575] and in Portillo v. Aiassa (1994) 27 Cal. App.4th 1128 [32 Cal. Rptr.2d 755]. However, it can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew. (Uccello v. Laudenslayer, supra, 44 Cal. App.3d 504, 514, fn. 4.) The landlord is required to have actual notice and merely constructive knowledge or notice.

The second step is to determine if the landlord has the ability to prevent the foreseeable harm. In Uccello the court relied on Dennis v. City of Orange (1930) 110 Cal. App. 16 [293 P. 865] to establish the principle the landlord’s duty derives from his control and ability to prevent dangerous conditions on his property. The injuries the dogs cause must be ones which would not have occurred if the landlord had taken actions which were within his power. In the cases of dangerous dogs, that potential power is found in whatever rights the landlord may have to insist the tenant remove the dogs from the leased premises or to insure the property is so secure the dogs cannot escape to harm persons on or off the property. Plaintiff correctly contended that the landlord owed her a duty of care if the landlord knew of the dogs’ vicious propensities and if he had the power to have taken measures on the property he controls which would have prevented plaintiff’s injuries.

DEFENDANT SWIFT’S FALSE EXCULPATORY STATEMENTS DENYING ANY KNOWLEDGE OF THE ROTTWEILERS’ EXISTENCE AND HIS FURTHER DENIAL HE GRANTED PERMISSION FOR THEIR PRESENCE ON HIS PROPERTY MAY BE USED TO INFER GUILTY CONSCIOUSNESS AS TO HIS KNOWLEDGE OF THE DOGS’ VICIOUSNESS.

There is more than one way to prove the existence of a fact, and thus more than one way to create a triable issue about the existence of that fact. One way is to introduce affirmative evidence tending to show the fact exists — the testimony of someone who observed it or who observed something from which the existence of the fact may be inferred. Another way is to introduce evidence tending to show an opponent’s denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial.
Just as a criminal defendant’s false exculpatory statement is evidence of his consciousness of guilt, a civil defendant’s false exculpatory statement can be evidence of his consciousness of liability and casts doubt on his denial of knowledge affecting his liability.

A a false statement is evidence of a declarant’s state of mind and demonstrates his knowledge he has committed a wrong. From this consciousness of guilt the jury is entitled to infer other facts bearing on a defendant’s guilt. The logic of this principle applies as much in civil cases as it does in criminal prosecutions. In the instant case landlord and defendant Swift made the exculpatory statement as soon as he received the summons and complaint then admitted his exculpatory statement to be false by later filing a response to interrogatories admitting he knew about the dogs from the rental agreement and from his visits to the property. Such a falsehood may be used to infer Swift had a guilty conscience about the two rottweilers and his responsibility for the injuries they caused. Swift’s false exculpatory statement denying he knew his tenant had dogs on the leased property is evidence of the falsity of his later denial he knew the rottweilers had vicious propensities.
This sequence of events, a denial of knowledge about one incriminating fact followed by an admission of knowledge of that fact accompanied by a denial of another incriminating fact is exactly what happened here. Here too the fact finder can reasonably infer Swift falsely denied he knew the dogs were dangerous from his initial false denial of knowledge the dogs even existed.

Swift’s claims he still is not liable because the dogs attacked Donchin four blocks away from his property. According to Swift, his liability does not extend to areas beyond his control.
The rental agreement was month-to-month, and Swift could have terminated it with proper notice. Donchin further produced evidence the dogs escaped due to a damaged fence. A landowner’s liability for a tenant’s dog’s vicious attack that occurs off the premises is determined by the same standards of ordinary care as liability for attacks which occur on the premises. Liability will turn on the landowner’s ability to prevent the harm. 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. The Uccello court found a month-to-month lease was sufficient indicia of control to establish a landlord’s liability to third parties for injuries his tenant’s dogs might cause.

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This post was written by Orange Dog Bite Attorney

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