Hello everybody. There is an old adage, “Every dog gets one free bite.” While that is not true as to the liability of the canine’s owner, generally it is true for a landlord whose tenant’s dog bites a third person.
To be more precise, a residential landlord does not owe a duty of care to protect against a dog bite inflicted by his tenant’s animal unless the landlord knows of the pet’s dangerous propensities and has the ability to control or prevent the harm.
Several California courts have so held. One such illustrative case is the Court of Appeal’s interesting decision in Salinas v. Martin, 166 Cal.App.4th 404.
Facts of the Case
In Salinas, the property owner of a house located in Richmond, California embarked upon a remodeling project.
The owner hired a general contractor for the project who, in turn, hired an employee to work on the construction under the general contractor’s supervision for a period of about four months. With the owner’s approval, the contractor and employee stored equipment and materials in the backyard of the residence. The employee was given permission by the owner to enter the yard at any time to retrieve equipment or materials he stored there.
The owner also hired two gardeners to perform weeding and landscape work on the premises. Those gardeners had two dogs, namely a pit bull terrier and a smaller pit bull/Labrador mix.
The owner of the house allowed the gardeners to keep their dogs loose in the fenced backyard. The property owner testified that the canines appeared tame and friendly to the property owner and he never saw them attack, bite or be aggressive with anyone.
The general contractor expressed a different view. He testified that he saw a ferocious looking pit bull and that he communicated his fear to the property owner that the pit bull, which had been trained as a guard dog, should not be at the job site. The general contractor told the owner that the pit bull was dangerous and would attack someone.
During the construction, the employee who worked for the general contractor called the contractor and advised that the employee needed to retrieve wood planks for scaffolding that were stored on the property. In accordance with the consent previously given by the property owner, the contractor advised the employee to pick up whatever he needed.
The same day, the property owner had specifically given the gardeners permission to let their dogs roam in the backyard of the residence.
The property owner left the house before the employee arrived and was gone for about four or five hours. He was not advised that the employee intended to visit the residence that day.
The employee entered the backyard through a 12-inch gap in the fencing. As you might guess, the pit bull then attacked the contractor’s employee. When the employee ran away, the dog continued to repeatedly bite him until the employee was able to jump onto a car parked in the driveway. The employee then sued the property owner.
The case ultimately made its way to the California Court of Appeal which analyzed and summarized the applicable “dog bite” laws. The balance of this article will paraphrase those laws, as explained by the appellate court.
Dog Bite Law
In general, a landowner has an affirmative duty to exercise ordinary care to keep his premises in a reasonably safe condition to third persons. To discharge that obligation, he must inspect them or take other proper means to ascertain their condition. If, by the exercise of reasonable care, he would have discovered a dangerous condition, he will be liable to injured third parties for having failed to abate it.
However, it is established law that a residential landlord does not owe a duty of care to protect the third person from a tenant’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities and the ability to control or prevent the harm.
Conversely, a landlord does owe a duty of care to his tenant’s invitees to prevent injury from the tenant’s vicious dog when the landlord has actual knowledge of the dog’s vicious nature in time to protect against the dangerous condition on his property.
Also, a residential landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal. It is only when the landlord has actual knowledge of the tenant’s dangerous animal, coupled with the right to have it removed from the premises, may the landlord be liable for a dog attack on a third party.
Thus, an apartment landlord will ordinarily not be liable for the first incident of a dog bite inflicted by one of his tenant’s dogs. However, the facts in the Salinas case were different than the typical landlord/tenant situation.
There, the property owner was not an absentee landlord with limited access to the property. He did not surrender his possessory interest in the property in any way, as does a landlord to a tenant. In fact, the property owner continued to control the premises, at least intermittently, while the construction proceeded.
Further, the owners of the dog were not the landlord’s tenant. Instead, the canine’s owners were temporary invitees who were performing landscaping services.
Also, unlike tenants, the gardeners were neither vested with exclusive possession of any portion of the property, nor were they entitled to keep their dog on the property without the express permission granted by the landowner.
Thus, the Court of Appeal found that the landowner could be liable for the dog attack of the injured third party employee even if the owner did not know the canine was vicious.
Had the owner of the dog been a residential tenant, the result would have likely been different.
One other issue was raised by the Court, and it is one which readers of this column may have already pondered. That is, wouldn’t the gardeners (i.e., the owners of the dog), also be liable for the dog bite? The answer is an emphatic “Yes.” (Civil Code Section 3342) However, while the dog owner’s responsibility for the attack might be primary, the landowner was undoubtedly sued because he was likely to be the one with more money, deep pockets, and applicable insurance.
In a landlord/tenant context, the lesson to be learned from this Court of Appeal case is that if an apartment landlord acquires knowledge that his tenant is harboring a vicious dog, or one which has a dangerous propensity to attack a person, the landlord should attempt to have the tenant remove the canine from the premises. The landlord may accomplish that in a variety of ways, such as by a verbal request to the tenant, a written demand, or by serving a formal 3-day notice that the tenant is creating a nuisance or otherwise violating a condition in the rental agreement.
If the tenant does not then follow the landlord’s directive, the owner should consult an eviction lawyer to pursue an unlawful detainer. Some unlawful detainer attorneys for the reader’s consideration are identified on Page 2 of this magazine.
Bites by Service or Emotional Support Dogs
The same liability of a landlord that applies to ordinary dogs applies to service and emotional support dogs.
Additionally, a landlord may bar a service dog or support animal from living in an apartment (and evict a tenant if the tenant will not get rid of the canine) if (1) the dog is a danger to other tenants, or (2) the dog will damage the apartment property, and if no reasonable accommodation can be made for the tenant which would avoid those problems.
In summary, the important matters to bear in mind are:
- An apartment building landlord does not owe a duty of care to protect a third person from the tenant’s dog attack unless the landlord has actual knowledge of the dog’s dangerous propensities and the ability to control or prevent the harm;
- A residential landlord is under no duty to inspect the premises for purpose of discovering the existence of a tenant’s dangerous animal; and
- If a landlord does learn of an animal’s dangerous propensities, he should attempt to have the animal removed from the premises as soon as possible.
Attorney readers of this column who wish to further research an apartment owner’s liability for bites inflicted by a tenant’s dog should review Lundy v. California Realty, 170 Cal.App.3d 813, and Chee v. Amenda Goult Property Management, 143 Cal.App.4th 1360.
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 40+ years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.
The foregoing article was authored May 2018. It is intended as a general overview of California law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067. Phone: (310) 277-7300.