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October 1, 2010 > Legal Eyes

Legal Eyes

By Stephen F. Von Till, attorney

Q: Tenant's Dog Bites Neighbor. Is landlord liable?

A: No. But there is an exception.

Some dog attacks cause horrific injuries, sometimes death. Attacks may be provoked or unprovoked. Scars, disability, medical expenses, and wage loss may result. Who is responsible for damages?

Contrary to common belief, there is no "one free bite" in California. Civil Code 3342 states "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 3342 applies only to the owner of the dog. Ordinarily, therefore, the landlord cannot be liable. But if the landlord has actual knowledge that his tenant's dog is dangerous, the landlord is responsible.

The landlord has a duty to maintain safe premises. This includes not harboring a dangerous animal. The landlord can require his tenant to get rid of the dangerous dog or move.

The landlord has the legal power to evict. Thus, if the landlord knows of the danger and does nothing, the landlord may be jointly responsible for the harm inflicted.

In Donchin v. Guerrero two Rottweilers attacked Ms. Donchin and her small Shihtzu dog. Ms. Donchin suffered a broken hip in the attack. The dogs' owner was an uninsured tenant of landlord Mr. Swift.

But Mr. Swift denied that he knew the dog was dangerous. Thus, he claimed that he had no legal responsibility for the attack.

How does one prove a landlord's "actual knowledge" in the face of denial? Circumstantial evidence is admissible in a court of law and often may be quite persuasive.

In the Donchin case the court found from the "circumstantial evidence" that the landlord "must have known" that his tenant's two Rottweilers were dangerous. Neighbors and the postman testified to numerous dangerous encounters with the dogs. An animal behavior expert testified that the dogs were probably vicious toward everyone they encountered, including landlord Swift during his regular visits to the premises.

Bottom line: a jury was entitled to disbelieve the landlord's denial and to find the landlord jointly liable with his tenant for the serious injuries inflicted.

If one teases a dog or otherwise negligently provokes the animal, the injured party may have some responsibility for his own injuries. Under those circumstances, a jury is entitled to find that the injured party is partially at fault. The damage award is then reduced by the percentage of comparative fault assessed by the jury.

The Lessons:
1. Don't keep a dangerous dog. Don't let your tenant keep a dangerous dog. Don't provoke or tease an animal.

2. Make sure you have standard homeowner's and renter's insurance policies. These policies generally require the insurance company to provide you with a defense and to pay the damages if you are found responsible.

Stephen F. Von Till, attorney at law
Mission San Jose, Fremont
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