In this Texas case, the appellant-landlord appealed a verdict that found him negligent for injuries suffered by a child visiting a tenant's residence. The lower court found the tenant and landlord each 50% liable for the girl's injuries. The Court of Appeals, in an issue of first impression, if a landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property, and has the ability to control the premises, he or she owes a duty of ordinary care to third parties who are injured by this animal. In the present facts, the court found that Bantra had no duty of care because there was no evidence showing that Batra either saw the dog and knew that it was a potentially vicious animal or identified the dog's bark as the bark of a potentially vicious animal. The judgment was reversed.
TIM TAFT, Justice.
Appellant, Dinesh Batra, appeals a verdict finding him negligent and awarding damages to appellee, Tammy Clark, individually and as next friend of Clarissa *127 Ewell. We determine whether Batra, an out-of-possession landlord who retained no control over the premises of the rental property, owed a duty to Ewell, a third party who was injured on the property. We reverse and render judgment that Clark take nothing from Batra.
FN1. In her amended petition, Clark alleged that Batra was negligent for failing to maintain the fence surrounding the rental property and for violating a Baytown city ordinance. Clark also maintained at trial that Batra was negligent by (1) failing to inspect the rental property to determine whether or not Torres was in violation of the lease clause prohibiting pets on the rental property without the written consent of Batra and (2) failing to maintain the fence surrounding the rental property. However, according to the trial court's factual findings and legal conclusions, the trial court did not base its holding on any of these theories of negligence, and Clark did not request additional findings on these theories. Therefore, we will not address these arguments. See Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 747 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (holding when trial court enters findings that do not establish any element of particular defense, party relying on defense must file request for additional findings to avoid waiver of that defense on appeal); see also Fielder v. Abel, 680 S.W.2d 655, 656-57 (Tex.App.-Austin 1984, no writ) (error waived when appellees requested no additional findings or conclusions relating to other claimed grounds of recovery).
Both parties cite Baker v. Pennoak Props., Ltd. to support their arguments. See id. , 874 S.W.2d 274, 277 (Tex.App.-Houston [14th Dist.] 1994, no writ). In Baker, the court held that a landlord retaining control over premises used in common by different occupants of his property has a duty to protect tenants from dog attacks in the common areas of his property and will be held liable if (1) the injury occurred in a common area under the control of the landlord and (2) the landlord had actual or imputed knowledge of the dog's vicious propensities. Id. at 277. Baker is distinguishable because it involved a landlord in possession with control over the common areas, whereas this case involves a landlord out of possession with arguably no, or limited, control over the premises. See id.; Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996) (recognizing that generally lessor relinquishes possession or occupancy of premises to lessee); Butcher v. Scott, 906 S.W.2d 14, 15 (Tex.1995) (finding that party must be in control of premises to be held liable as owner or occupier). Moreover, the Baker court expressly refused to decide the issue of whether an out-of-possession landlord may be liable for harm caused by a tenant's dog to third parties. Baker, 874 S.W.2d at 277. Thus, we are faced with an issue of first impression.
*129 Several other jurisdictions have imposed liability on out-of-possession landlords for dog attacks against third parties on the landlords' single-dwelling premises. See Danny R. Veilleux, Annotation, Landlord's Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant, 87 A.L.R.4th 1004, 1012-13 (1991). The majority of cases have held that a landlord will be liable for injuries caused by the attack of a tenant's dog only when the landlord (1) had actual knowledge of the dog's presence on the leased premises, actual knowledge of the dog's dangerous propensities, and the ability to control the leased premises, either by the terms of the lease or by trailer park or subdivision regulations; and (2) failed to exercise that ability to control. See Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118 Cal.Rptr. 741, 746-47 (1975) (holding duty of care arises when landlord has actual knowledge of presence of dangerous animal and of its dangerous propensities and right to remove animal by retaking possession of premises); McCullough v. Bozarth, 232 Neb. 714, 724-25, 442 N.W.2d 201, 208 (1989) (ruling that landlord is liable for injuries caused by attack of tenant's dog only when landlord had actual knowledge of dangerous propensities of dog and, by terms of lease, had power to control dog and neglected to exercise that power); Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13, 16 (1984) (stating that landlord may be liable who, with knowledge that prospective tenant has vicious dog which will be kept on premises, leases premises to tenant without taking reasonable measures, by provisions in lease or otherwise, to prevent attacks by dog); Vigil v. Payne, 725 P.2d 1155, 1157 (Colo.Ct.App.1986) (holding that landlord who has actual knowledge that tenant owns animal with vicious propensities has duty to take reasonable precautions to prevent attacks by animal); Palermo v. Nails, 334 Pa.Super. 544, 483 A.2d 871, 873 (1984) (finding landlord liable for injuries by animals owned by his tenant when landlord had knowledge of presence of dangerous animal and right to control or remove animal by retaking possession of premises). Cf. Royer v. Pryor, 427 N.E.2d 1112, 1119 (Ind.Ct.App.1981) (refusing to hold landlord liable when he did not know of vicious propensities of tenant's dog and did not retain or exercise control over portion of premises on which attack occurred); Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555, 556 (1981) (affirming summary judgment in favor of landlord when tenant agreed, pursuant to lease, that he would not maintain or permit to be maintained on premises dog with dangerous propensities); Parker v. Sutton, 72 Ohio App.3d 296, 594 N.E.2d 659, 661-62 (1991) (holding that landlord with knowledge of presence of vicious animal on premises may not be held liable if he had reasonable belief that dog was removed from property or if insufficient time has passed for landlord to take legal steps to abate hazard); but see Vasques v. Lopez, 509 So.2d 1241, 1242 (Fla.Dist.Ct.App.1987) (finding liable landlord who had imputed knowledge of vicious dog's presence and ability to control premises); Merwin v. McCann, 129 A.D.2d 925, 926, 514 N.Y.S.2d 566 (N.Y.App.Div.1987) (reversing summary judgment and remanding to trial court to determine whether landlord had actual or imputed knowledge that vicious dogs were kept on premises); Bessent v. Matthews, 543 So.2d 438, 439 (Fla.Dist.Ct.App.1989) (affirming judgment when there was no evidence that landlord knew or had reason to know that his tenant's dog was vicious); Clemmons v. Fidler, 58 Wash.App. 32, 791 P.2d 257, 259 (1990) (holding that landlord cannot be liable for injuries caused by tenant's vicious dog even if landlord has *130 actual or implied knowledge of dog's presence on property and vicious tendencies).
We agree with the majority of cases that liability should be imposed on an out-of-possession landlord only when he has actual knowledge, rather than imputed knowledge, of the presence of a vicious animal on the leased premises. We hold that, if a landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property, and has the ability to control the premises, he owes a duty of ordinary care to third parties who are injured by this animal.
We now determine whether, under the above duty, Batra had actual knowledge of the dog's presence on the leased property and dangerous propensities.Cynthia Taplin, Torres' neighbor, testified at trial that she saw Batra fixing the roof of the rental house at some time before the dog attacked Ewell, that the dog was chained up on the side of the house, and that the dog was barking the entire time Batra fixed the roof. In factual finding number nine, the trial court found that Batra had actual knowledge of the dog's presence on the premises before Ewell was attacked, which finding Taplin's testimony supports. In conclusion of law number three, the trial court decided that Batra had control over the leased premises and imputed knowledge of the dog's vicious propensities.
FN2. Because we sustain Batra's first issue, we need not reach his second issue of whether the evidence was legally and factually insufficient to show he was liable for Clarissa's injuries, assuming that he owed a duty to Clarissa.
Tex.App.-Houston [1 Dist.],2003.