This overview explores the liability for both landowners and landlords for injuries to third parties caused by tenant's animals. As a general proposition, liability is imputed only where the landowner or landlord has a duty to a third party, which is usually based on knowledge of the vicious propensity of the animal. Further, the injury must be reasonably foreseeable under the circumstances. The paper sets forth the level of duty owed to different classes of third party visitors (licensees, invitees, and trespassers) as well as how the location of an attack affects landlord liability.
I. Liability of Others
A. Land Owner’s Duty to Public
The law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence. A landowner or possessor owes a duty of care to persons who come on his or her property as well as to persons off the property for injuries due to the landowner's lack of due care in the management of his property. [i]
An owner of real property must use various degrees of care to keep his premises safe for third parties who come upon the land. The duty arises out of the ownership and control of the land and not the ownership of any particular animal at may be found on the land. [ii] In one California case, fractional ownership (1/2,500) alone was sufficient to allow liability to attach, even though management of the land had passes to a home owners' association. [iii] In another, the existence of a dangerous condition (a dog) at the beginning of a commercial lease triggered the landowners duty. [iv] The dog bite statutes that control the liability of an owner or harbor of a dog do not apply to land owners who do not posses and control the dog. [v] Therefore, for most injured parties a form of common law negligence will be the cause of action against a land owner. [vi]
Animals represent but one of many possible dangers to a third party. As with negligence generally, however, the mere presence of an animal does not violate any duty unless the owner has knowledge, or should have knowledge, that the animal, most often a dog, represents a risk of injury in a given situation. In one case, the court held that it was not foreseeable that barking dogs would frighten a woman into the street where she was hit by a car. [vii] If the animal does present a risk of harm, then the owner has a duty to either warn the third party or to control the animal so as to eliminate the risk. [viii] In almost all cases, the obligations of the duties of the land owners with knowledge of animals are the same as the duties of the animal owner.
This is evident in one case, where a land owner was holding a rummage sale and the injured party was a child of person who was also selling items at the sale with the permission of the land owner. The dog, an Akita , was brought on to the property by a social friend of the land owner. The dog bit the plaintiff while tied up to an outside fence. The court held that plaintiff was an invitee and was owed the following degree of care:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Burrell, 569 N.E.2d at 639-640 (citing Restatement (Second) of Torts § 343). [ix]
The failure to exercise reasonable care might be a failure to properly restrain, or the claim is often made that the owners did not warn of the danger. When one plaintiff was injured while helping to capture a horse for shoeing, he claimed negligence by the defendant landowner for a failure to warn the individual that the horse might kick. The court rejected this claim as landowner’s duty to business invitee. The defendant landowner lacked prior knowledge of any risky conduct by the horse. The duty as landowner is the same duty as that of an owner of an animal, in that any obligation to warn will arise only if special knowledge exists. [x]
This general duty to third parties may vary in the different states, depending on the legal status of the visitor. The invitee receives the highest degree of protection from risk since the owner must use ordinary care to keep his premises in a reasonably safe condition. [xi] If the third party is a licensee, the duty is somewhat less; the owner must not injure the licensee willfully, wantonly or through gross negligence. [xii] When the third party is a trespasser, the owner of the land has the lowest level of responsibility. Where the owner is aware of the presence of a trespasser, and has control of a force (e.g. dog) that represents a threat of physical harm, he or she must exercise reasonable care. [xiii] However, in animal cases the trespasser is often a small child and the child may receive more protection than an adult trespasser. Liability will arise only in very limited situations. Several plaintiffs have attempted to claim that animals on a defendant's land represented an attractive nuisance to children. Most courts have been unwilling to extend the doctrine to cover this type of fact situation. [xiv]
B. Special Case of a Landlord’s Duty to the Public
A landlord (a person who leases possession of land and buildings or apartments to another) is a special case of a landowner, in that, while the landlord continues to be the owner of a parcel, the right of possession and control passes to the tenant. Since the landlord does not have possession, he or she does not have control over the animals on the leasehold land. As many tenants are without assets to pay for the damages caused by their animal, injured parties often sue the landlord for damages rather than, or in addition to, the owner of the animal. To find the landlord liability for injuries to the public at large, the court must find some line of analysis by which it can be said that the landlord has control over an animal causing an injury. Sometimes the court seems to be helping the injured party to reach a deep pocket of insurance money, by imposing liability on a landlord even though the landlord did not have any real control over the situation.
The first line of analysis of the landlord cases focuses upon the physical location where an injury caused by an animal owned by a tenant occurs. The three categories are: on the rented premises; on the common areas (such as halls and parking lots) owned and controlled by the landlord (rather than any one tenant); and third, off the land of the landlord all together. As a general proposition, a landlord is not liable for injuries caused by a tenant’s animal when the injury occurs on the premises of the tenant. It is easy to get to this conclusion when the landlord does not have any knowledge as to the existence of the animal or the nature of the animal, e.g. its vicious propensity. [xv] This is supported by the fact that it is within the leased premises that the landlord has the least amount of knowledge or control over events. The requirement for actual knowledge, versus “should have known,” is important as in one case the court held that there was no duty to inspect the premises and find the dog. [xvi] In another case, knowledge was not implied from either the breed of the animal, German Shepard, or the name of the dog, Thunder. [xvii]
However, at least one court has held (in a poorly analyzed opinion) that the landlord’s right of termination of a leasehold may be sufficient control over the premises to trigger tort liability; that if the landlord has actual knowledge of an animal with vicious propensities, then the landlord will be liable if he or she does not demand the animal be removed from the premise under threat of termination of the leasehold. The public policy argument is that if the landlord has knowledge of a dangerous condition on his or her land and the power to do something about the condition (eject the tenant) then there is a duty to the general public to act or be liable for not taking action to eliminate the dangerous condition, the animal. [xviii] However, there is countervailing public policy that suggests it is inappropriate to force a landlord to exercise a discretionary power. Any private leasehold can represent a wide assortment of relationships between the parties and the public interest in seeking a deep pocket for animal injuries is not so great as to force a severance of the landlord tenant relationship over this one issue. Additionally, in all likelihood this does not solve the problem; it merely moves it somewhere else. [xix]
In another line of cases dealing with dog bites on the tenant’s premises, the landlord may be liable for dangerous conditions that exist at the beginning of a lease. A dog with a vicious propensity certainly can be a dangerous condition. A California case held that the duty to inspect and discover applies to lease renewals as well as new leases and that such an inspection would have revealed the tenant’s dog. This outcome was promoted when the property in question was commercial in nature and the landlord had a duty to public concerning the condition of the premises. [xx]
The second location, the common area of a premise - such as hall, entrances and parking lots - are considered possessed by the landlord and, as such, the landlord would be considered to have a duty to protect the public from known hazards. The general analysis for liability would be the same as by any land owners, as set out in the prior section.
The third location issue arises when a person is injured off the landlord’s premises, but the animal causing the injury was owned or possessed by a tenant of the landlord. Normally the landowner will not be liable under common law principles as the landlord has no duty to confine or restrain the animal, that being the obligation of the owner or keeper of the animal. [xxi] However, there are cases to the contrary. One Nevada case found the landlord liable because the dog escaped through a broken gate that presumably the landlord had a duty to repair. [xxii]
[ii] . Even though defendant was not an owner or keeper of the dog, he was aware the dog constituted a dangerous condition and therefore had a duty to warn invitees. Christie v. Anchorage Yacht Haven , 287 So2d 359 (FL 1973); Cole v. Leach , 405 So2d 449 (FL 1981) (where basis of suit was common law negligence, injured party did not have to prove ownership of dog).
[iii] . Davert v. Larson , 163 Cal App3d 407, 209 Cal. Rptr. 445, 1985 Cal App LEXIS 1502. Plaintiffs were traveling in an automobile driven by plaintiff Edward Davert. The automobile collided with a horse alleged to have escaped from property adjacent to the road owned by defendant and others. Plaintiffs alleged liability on the part of defendant on two theories: (1) defendant, in his capacity as deputy sheriff of the County of Siskiyou, observed the gap or hole in the fence adjacent to the road through which the horse was alleged to have escaped and failed to take precautionary measures and (2) defendant owned a 1/2500th undivided interest in the property from which the horse escaped. After discussion the court reversed the summary judgement of trial court against the plaintiff. “Therefore, we believe that tenants in common of real property who delegate the control and management of the property to a separate legal entity should not be immunized from liability to third parties for tortious conduct.” Action against the sheriff was dismissed.
[iv] . Portillo v. Aiassa , 27 Cal App 4th 1128, 32 Cal. Rptr.2d 755, 1994 Cal App LEXIS 870. Plaintiff delivered beer to Race Street Liquors. As he was leaving the store, he was attacked by a German shepherd owned by the tenant. The jury found appellant landlord did not have actual knowledge of the dog's dangerous propensities prior to renewing the lease. However, the jury found that he would have learned of the dog's dangerous propensities if he had exercised reasonable care in the inspection of his property and that he was negligent in failing to eliminate this dangerous condition. “This duty of care also extends to the general public.... A lessor who leases property for a purpose involving the admission of the public is under a duty to see that it is safe for the purposes intended, and to exercise reasonable care to inspect and repair the premises before possession is transferred so as to prevent any unreasonable risk of harm to the public who may enter. [Citations.] An agreement to renew a lease or relet the premises ... cannot relieve the lessor of his duty to see that the premises are reasonably safe at that time.”
[v] . Flint v. Holbrook , 608 NE2d 809, 1992 Ohio App LEXIS 2452. Dog bite by pit bull. Plaintiff was bitten while in alley between her house and neighbor. She sued the dog owner and the legal title holder of the land. Dog owner had been a renter from owner, then had signed a land contract to purchase the home. The low court had dismissed the action against the title holder of the land (the prior landlord). “Thus, a harborer is one who has possession and control of the premises where the dog lives, and silently acquiesces to the dog's presence.” The court holds that the vendor of a land contract does not have control over the premises so as to be considered a harborer of the animal. This is the case even thought there have been defaults in payment so that vendor might have foreclosed on the contract.
[vi] . Tran v. Bancroft , 648 So2d 314, 1995 Fla App LEXIS 91. In a dog bite case, the court upheld a motion of summary judgment in favor of the defendant non-owner. “The existence of a duty in a negligence action is a question to be decided as a matter of law. McCain v. Florida Power Corp., 593 So. 2d 500 (FL 1992). Although the so-called "dog bite" statute, section 767.04, Florida Statutes (1993) controls actions against a dog's owner, actions against a non-owner must be brought upon a theory of common law liability.”
[vii] . Nava v. McMillan, 123 Cal App 3d 262, 1981 Cal App LEXIS 2110.
[viii] . If the condition is as obvious to the invitee as it is to the owner, then there is no duty to warn. Where a horse is obviously entangled in a chain and the plaintiff voluntarily went to the horse's aid, there was no duty to warn. Ellertson v. Dansie , 576 P2d 867 ( Utah 1978).
[ix] . Schrum v. Moskaluk , 655 NE2d 561, 1995 Ind App LEXIS 1135.
[x] . Blose v. Mactier , 562 NW2d 363, 1997 Neb LEXIS 112.
[xi] . Searcy v. Brown , 607 SW2d 937, 941 (TX 1980); Sibbett v. MCM Livestock, Inc. , 247 SE2d 2 (NC 1978).
[xii] . Id . Sendelback v. Grad, 246 NW2d 496 (ND 1976). The dog represented a "hidden peril" or "concealed danger."
[xiii] . The Hawaiian Supreme Court believed it was at least a jury issue as to whether the defendant had been negligent when he allowed his German shepherd to chase trespassers. Farrior v. Payton , 562 P2d 779 ( Hawaii 1977); see Restatement (Second) of Torts, § 338 (1965).
[xiv] . Dykes v. Alexander , 411 SW2d 47 (KY 1967); Hall v. Edlefson , 498 SW2d 514 (TX 1973); Brady v. Skinner, 132 Ariz. 425, 646 P2d 310 (1982); but see Rolen v. Maryland Casualty Co. , 240 So2d 42 (LA 1970).
[xv] . In a Washington case a landlord was not liable for a dog bite since he did not have any knowledge about the existence or character of a tenant's dog. Shafer v. Beyers , 613 P2d 554 (WA 1980).
[xvi] . Scott v. Donkel , 671 So2d 741, 1995 Ala Civ App LEXIS 673. There was an injury to a child by dog bite, and the defendant was a landlord. The attack occurred off the rented premises in the public street. The action was based upon negligence, that is, a failure to protect against a dangerous condition. The key to such a claim is the knowledge of the landlord. Plaintiff presented no evidence of the landlord being aware of the dog let alone that he knew of its vicious propensity. The court did not find a duty to inspect the premises and discover this information. The court did not reach the point that the attack occurred off the premises. The granting of the motion for summary judgment for the landlord was upheld.
[xvii] . Lundy v. California Realty ,170 Cal App 3d 813, 1985 Cal App LEXIS 2280. The plaintiff worked for a tv cable company. While rounding the corner of the plaintiff’s house a 100 pound German Shepard started to attack. Plaintiff was injured when he jumped a neighboring fence to escape the dog. The lawsuit was filed against both the dog’s owners (tenant) and the property owner. “The property owners were alleged to have negligently caused plaintiff's injuries by: (1) renting the property to defendant Graves with knowledge the dog would be kept on the premises; (2) allowing defendant Graves to remain in possession of the premises with her dog; (3) failing to enclose the backyard; and (4) failing to post a sign or signs warning of the dog's presence. Aside from the reference to the dog on the written rental agreement, defendant property owners had no knowledge whatever concerning the dog. None of them had seen the dog nor visited the property after it was rented to Mrs. Graves and her family not received any complaint of any kind concerning the dog or any dangerous propensity on the part of the dog ... Neither do we believe judicial notice may be taken that all German shepherds are dangerous. Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder. It is not uncommon for an owner of a St. Bernard or Great Dane to name the dog Tiny.” With no knowledge, in fact or implied, no liability.
[xviii] . Donchin v. Guerrero , 34 Cal App 4th 1832, 1995 Cal App LEXIS 462 . Cronin v. Chrosniak , 536 NYS2d 287, 1988 NY App Div LEXIS 13905. The Court reverses a motion for summary judgment granted to a landlord. Discussion suggested that since the tenants were present on a month to month leasehold, that the landlord had the power to do something about the vicious dog and this could be the basis for liability.
[xix] . Wright v. Schum , 781 P2d 1142, 1989 Nev LEXIS 279. Boy was bitten by dog. The jury found the owner liable, but trial court judge dismissed the landlord as a party. Plaintiff sought to hold the landlord liable on two grounds, first that landlord’s liability should extent to off premises injuries and second, that the landlord with the power to evict, should have and having not is now liable. “The trial court, in dismissing landlord Schum from the lawsuit, wisely observed that holding landlords liable for the actions of their tenants' vicious dogs by requiring them to evict tenants with dangerous dogs would merely result in the tenants' moving off to another location with their still dangerous animals. The trial judge likened this approach to the case of a "Typhoid Mary," who was outcast from one place only to continue her deadly disease-spreading activity at another place. In Nevada, Schum's failure to evict a tenant known to him to be harboring a dangerous pit bulldog will not alone provide grounds, as it did in the above-cited Uccello case, for holding a landlord tortiously liable for attacks by a tenant's dog. However, the landlord in this case will be liable nevertheless under general tort obligations in that he undertook a duty to secure the neighbor from harm by the dog and failed to achieve the desired result, resulting in the injury to plaintiff.” There was a good dissent. This was a close case.
[xx] . Portillo v. Aiassa , 27 Cal App 4th 1128, 1994 Cal App LEXIS 870.
[xxi] . Royer v. Pryor , 427 NE2d 1112 (1981). “Thus, it is the duty of the owner and the keeper of the animal to keep him confined, and the mere possession or ownership of land from which an animal strays is not sufficient to make the landowner liable, so long as the landowner is not the keeper of such animal. This is and has always been the law in Indiana . See Cook v. Morea, (1870) 33 IN 497.”
[xxii] . Wright v. Schum , 105 Nev 611, 781 P2d 1142, (1989). Also see, Harry v. Smith , 893 P2d 372, 1995 Nev LEXIS 49; Cronin v. Chrosniak , 536 NYS2d 287 (1988) A tenant's dog got loose and attacked a six-year-old boy who was playing in a neighbor's backyard. The appellate court reversed a summary judgment entered in favor of the landlords. The New York court rejected defendants' claim they had no control over the dog and held them liable even though the attack occurred off the landlords' property.