Are You Responsible For a Dog Bite On Your Property If You Don’t Own The Dog

February 2, 2016 6:10 pm Published by

Salinas v. Martin, 166 Cal.App.4th 404, 82 Cal.Rptr.3d 735 (2008)

When you allow a dangerous dog on your property and it bites someone, are you responsible?

yes

STATEMENT OF FACTS

Defendants owned a property on McLaughlin Street in Richmond. In 2005 they hired Burle Southard to act as general contractor on a remodeling project. Plaintiff was hired as an employee by the general contractor to work on the project. Plaintiff and Southard stored materials and equipment in the backyard and garage. Plaintiff had permission to enter the yard at any time to retrieve equipment or materials.
Defendants also hired , Armand and Greg Sanchez, to perform gardening work on the premises. The Sanchezes had two dogs, a pit bull terrier and a smaller pit bull-Labrador mix. Plaintiff’s allowed the Sanchezes to keep their two dogs loose in the fenced backyard and in a van they kept on the property. According to defendants the dogs did not appear aggressive with anyone and seemed tame and friendly. Southard saw the dogs as ferocious looking pit bull dog in the Sanchezes’ very dilapidated looking van in June or July of 2005.

On August 1, 2005, the dogs were roam in the backyard. Defendant had left the house before plaintiff arrived and was gone for four or five hours. Plaintiff had never seen the dogs at the house before, so he entered the backyard through a 12-inch gap in a cyclone fence. Once he as in the yard the smaller mixed-breed dog growled at him and then the pit bull attacked him. Plaintiff escaped through the gap in the fence, but the pit bull followed into the driveway and continued to repeatedly bite him until he managed to jump onto defendant’s car.

The trial court determined that defendant had “no duty of care” to plaintiff to prevent the dog attack, because he did not know of the dog’s vicious propensities.

COURT’S OPINION

The court of appeal first looked at the foreseeability of the risk. “Foreseeability is a `crucial factor’ in determining not only the existence of the landowner’s legal duty, but its `scope. The court then looked at scope of the duty which is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.
The court determined that the risk of harm was eminently foreseeable with the exercise of reasonable care and that it is reasonably foreseeable that a guard dog kept in an area open to others may injure someone.

The unfettered ability to prevent the dangerous condition on the property was the second factor. In this case defendant retained complete possession and control of the property, so he not only had the opportunity to inspect the premises regularly without restriction, but the dog owners had no right to keep the dogs without express consent from the homeowner. The failure to eliminate the dangerous condition was not due to home owner’s inability to restrain or remove dogs from the premises. The home owner participated in creation of the dangerous condition of the property by authorizing or permitting the dogs to run loose in the yard. The burden imposed on the home owner to exercise due care was minimal. Unlike a residential landlord here the home owner was not required to deal with a tenant’s right of possession and enjoyment of the property to inspect the property and remove the dangerous condition. In this case all he had to do was to direct the dog owners to keep the dogs in the van or effectively contain them when they were in the yard. He could have at least told the plaintiff of the dogs whenever he visited. Instead, the home owner consented to the unrestrained presence of the dogs on the property without informing those known to visit the premises of the potential danger. None of the precautions to eliminate the risk of harm were at all burdensome. The court concluded by stating that the defendant did owe a duty of care to plaintiff.

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This post was written by Orange Dog Bite Attorney

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