What is the Default Rule for Dog Bite Liability in CA?

A dog owner is liable for harm caused by a dog if the owner “knows or should have known” that the dog has “vicious propensities”

 

What is “Knowledge of Vicious Propensity” (KoVP)

  • Whether a Dog is Vicious is a Question of Fact –  The question of whether a domestic animal is vicious or dangerous is ordinarily a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601 [123 P.2d 560].)
  • Not Limited to Biting – Any propensity that is likely to cause injury under the circumstances is a dangerous or vicious propensity within the meaning of the law. (Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 437 [1 Cal.Rptr. 514].)
  • Beware of “Violent” Dog Breeds – “[N]egligence may be predicated on the characteristics of the animal which, although not abnormal to its class, create a foreseeable risk of harm. As to those characteristics, the owner has a duty to anticipate the harm and to exercise ordinary care to prevent the harm.” (Drake, supra, 15 Cal.App.4th at p. 929.)
  • This is a Common Sense Determination –  Whether a dog has a history of attacking, biting, fighting, etc. will all be relevant to this question.

 

What is the Strict Liability Dog Bite Statue in CA?

In California, dog owners can be held liable even if they have no KoVP.  This means a dog owner can be held responsible for a dog’s bite even if the dog has been sweet and docile it’s entire life leading up to the bite.

  • The Statute is Limited to Bites – the statute only mentions bites, for other injuries, such as scratches from claws, the default rule applies.
  • The Statute is Better for Plaintiffs/Worse for Defendants Than the Default Rule – This statute creates an exception to the general rule that an owner is not strictly liable for harm caused by a domestic animal absent knowledge of the animal’s vicious propensity. (Hicks v. Sullivan (1932) 122 Cal.App. 635, 639 [10 P.2d 516].)
  • The Bite Need NOT Pierce the Skin – It is not necessary that the skin be broken in order for the statute to apply. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176 [80 Cal.Rptr.2d 173].)
  • Assumption of the Risk Defense Still Applies – “The defenses of assumption of the risk and contributory negligence may still be asserted” in an action brought under section 3342. (Johnson, supra, 68 Cal.App.4th at p. 176.)
  • Inapplicable to Kennel Workers/Veterinary Workers  -“A veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that any dog, regardless of its previous nature, might bite while being treated, has assumed this risk as part of his or her occupation.” (Nelson v. Hall (1985) 165 Cal.App.3d 709, 715 [211 Cal.Rptr. 668], original italics.)
  • The Law Does NOT Benefit Trespassers – The definition of “lawfully upon the private property of such owner” effectively prevents trespassers from obtaining recovery under the Dog Bite Statute. (Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358 [197 P.2d 59].)

The following is the text of the statute:

CA Civil Code § 3342.  

(a) 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. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.

(b) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) against any governmental agency using a dog in military or police work if the bite or bites occurred while the dog was defending itself from an annoying, harassing, or provoking act, or assisting an employee of the agency in any of the following:

(1) In the apprehension or holding of a suspect where the employee has a reasonable suspicion of the suspect’s involvement in criminal activity.

(2) In the investigation of a crime or possible crime.

(3) In the execution of a warrant.

(4) In the defense of a peace officer or another person.

(c) Subdivision (b) shall not apply in any case where the victim of the bite or bites was not a party to, nor a participant in, nor suspected to be a party to or a participant in, the act or acts that prompted the use of the dog in the military or police work.

(d) Subdivision (b) shall apply only where a governmental agency using a dog in military or police work has adopted a written policy on the necessary and appropriate use of a dog for the police or military work enumerated in subdivision (b).

Who is the “Owner” of a Dog?

The dog bite statute applies to dog “owners.”  This begs the question of who actually owns a dog.

Relevant facts may include:

  • Where did the dog come from?
  • Who purchased the dog?
  • Are there any papers listing an official owner?
  • Was the dog given away, or was ownership transferred?
  • With whom does the dog live?
  • Who pays for the dog’s food?
  • Who pays for the dog’s vet bills and upkeep?
  • Who walks the dog?

What is a “Keeper” of a Dog?

A person who agrees to watch the dog of another, akin to a dogsitter, may be only the dog’s “keeper” as opposed to it’s owner.

What is the Difference in Liability for an “Owner” vs. a “Keeper”

  • Dog Owners are Liable Even Without KoVP – See the Dog Bite Statute above.
  • Keepers are Only Liable if They Have KoVP – “From the foregoing it is obvious that a keeper in contrast to an owner, is not an insurer of the good behavior of a dog, but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animal shall attach to him.”  (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 42)

 

Can Trespassers Recover for Dog Bite Injuries?

 


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