According to the Center for Disease Control, as many as 800,000 dog bites require medical attention every yeari. With a growing awareness about the dangerous propensities of certain dog breeds, pressure is mounting to restrict access to, and the availability of, these breeds. Moreover, as property and casualty insurers become increasingly selective about the policies they write, it is becoming the standard to evaluate the potential for liability caused by the presence of certain dogs.
Under California law, in a “dog-bite” case against an owner or manager, a plaintiff must show that (a) the dog had a history of behavior similar to what caused the present injury, (b) the owner or manager had actual knowledge of the dog’s dangerous propensities (c) the owner or manager had an opportunity to control the dog or evict the owners of the dog, and (d) as a result of the owner’s/manager’s failure to do so, the injuries happened.
Owner’s Duty of Care Regarding Tenants’ Dogs on Residential Property
The standard of care applicable to owners of residential rental property with respect to tenants’ dogs was set in 1975 by the court in Uccello v. Laudenslayer. In Uccello, the court held that an owner owes a duty of care to his tenant’s guests to prevent injury from an attack by a vicious dog kept by the tenant on the leased premises if the owner has (1) actual knowledge of the presence of the dangerous animal and (2) the right to remove the animal by retaking possession of the premises. Where the circumstances are such that the defendant “must have known” and not just “should have known” an inference of actual knowledge will be permitted. When there is a lease, rather than a month-to-month rental agreement, the owner’s right to remove a tenant or dog from the premises will depend on the terms of the agreement. Lease provisions that can protect owners who allow dogs are discussed below. The court also held that the owner has no duty to inspect the premises for the existence of a tenant’s dangerous animal. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.
Owner’s Duty Regarding a Dangerous Dog in the Neighborhood
Generally, courts have refused to impose a duty on owners to protect against dangerous conditions off the premises, or dangerous persons or animals over which the owner has no control or that come onto the property in a location, or manner over which the owner has no control. Liability could result, however, if the injury is caused by the owner’s negligent maintenance of their property, such as if the dog came on the property due to the owners’ failure to repair a fence.
Insurance and Lease Provisions Regarding Pets
Many insurance companies have adopted guidelines that refuse coverage if certain dog breeds are on the (insured) property. Some California property and casualty insurers will not issue a policy if the following dog breeds are located at the property: Pit bulls, Dobermans, Rottweilers, Akita’s and “Wolf mixes.” This list is not exhaustive and companies may add additional breeds at their discretion. Owners should consult with their insurance carriers regarding appropriate dog policies, including types of dogs that should not be allowed on the property. Many policies exclude injuries caused by certain breeds. No state (including California) prohibits an insurer from considering particular dog breeds when underwriting property insurance policies. Some insurers see this lack of prohibition as license to exclude certain
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breeds altogether or to charge a premium surcharge – that is an additional fee – if the insured wants to cover a listed breed.
Any rental agreement that allows a tenant to have a dog should be consistent with the owner’s insurance coverage and clearly should authorize the owner to evict a tenant who harbors a dog with dangerous propensities.
Any lease that allows pets should contain the following types of provisions:
• A description of pet behavior that is unacceptable. CAA’s Pet Addendum states that a resident shall not permit a pet to cause any damage, discomfort, annoyance, nuisance, or in any way inconvenience or cause complaints. The addendum also does not allow the pet outside the unit unless it is on a leash.
• A clear statement that the breach will be grounds for termination. CAA’s Pet Addendum provides that in the event of a violation of its terms, the tenant will either cure the default or vacate the premises within three-days. The addendum also allows the owner to revoke permission to keep the pet.
• A provision that holds the tenant liable for any damages caused by the pet. CAA’s Pet Addendum provides that the resident shall be liable to the owner for all damages or expenses incurred by, or in connection with, the pet and that the resident shall hold the owner harmless and indemnify the owner for any and all damages or costs in connection with the pet.
These types of provisions allow the owner to protect other tenants, guests and neighbors from a dog with dangerous propensities and protect the owner’s investment in the property.
Local Ordinances – Breed Specific Laws
It’s not just insurance companies that are taking action against certain dog breeds. A small but growing number of municipalities are banning or otherwise restricting ownership of certain dog breeds. In California, Lake County, Santa Monica, Naval Base Ventura County, Point Mugu and Point Hueneme have adopted ordinances banning certain breeds. In addition, state law expressly authorizes local governments to enact breed-specific ordinances pertaining to mandatory spay or neuter programs and breeding requirements (but prohibits naming certain breeds as inherently dangerous) (California Food & Agriculture Code, Section 31683).
Dog bite law is a unique combination of city and county ordinances, state statutory law, case law, and the common law. California Law recognizes that some dogs have become a serious and widespread threat. Under the law, a dog is considered potentially dangerous when unprovoked, it behaves in any manner that requires defensive action to prevent bodily injury, bites a person causing injury, or kills, seriously bites, or injures a domestic animal. A vicious dog under the law is one which inflicts severe injury on or kills a human being (California Food and Agriculture Code, Section 31601).
What Owners Should Do
Review your guidelines to ensure that they provide you and your tenants with the protections needed if you ever have a tenant with a dangerous animal.
Examine your rental/lease agreement and your policies to ensure that your statements are clear concerning pets at the property.
If you have actual knowledge of the dangerous propensity of a dog, take action immediately; serve proper notices on the tenant, and call animal care and control. Let other tenants and neighbors know about the actions you have taken.
Work with your insurance company to develop and employ pet policies.
California Apartment Association
www.caanet.org
Revised 11/2015 — © 2015 — All Rights Reserved
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Related Items and Information:
• CAA Form 13.0 – Pet Agreement
• CAA Form 13.0-I – Pet Agreement Instruction Sheet
• CAA Form 5.0 – Notice of Changes of Terms of Tenancy
End Notes:
i A survey by the national Centers for Disease Control and Prevention in Atlanta (“CDC”) concluded that dogs bite nearly 2% of the U.S. population — more than 4.7 million people annually. (Sacks JJ, Kresnow M, Houston B. Dog bites: how big a problem? Injury Prev 1996;2:52-4.) Almost 800,000 bites per year — one out of every 6 — are serious enough to require medical attention. (Weiss HB, Friedman D, Coben JH. Incidence of dog bite injuries treated in emergency departments. JAMA 1998;279:51-53.)
