When The Dog Bites

One of the most horrific dog attack cases occurred in San Francisco in 2001. Diane Whipple was mauled to death in the hallway of her apartment building by two Presa Canario dogs.  The owners of the dogs were charged with second degree murder and involuntary manslaughter. One of the owners is still in prison.

Three years ago, I wrote a chapter about dog bites in a book advising other attorneys. Recently updating the chapter made me think about dog attacks and your tenant’s rights.

Fortunately most dog attacks are not as severe. But the potential for being bitten by a dog is possible in the dog-loving Bay area. You might have a dog you’re worried about that lives next door.

Or you might own a dog. If she attacks another tenant, you need to know that you will be held liable.

The California dog bite statute

Some dogs may spend a lifetime as a beloved pet, yet show aggression to outsiders. Some may show more aggressive tendencies as they age. If the sweet Boston terrier next door turns aggressive, who is at fault?

Under California law, dog owners are “strictly liable” for dog bites. This means that dog owners are liable for their dog’s actions, even for first-time bites. In California, there is no “one free bite” rule.  The dog bite statute applies even if the skin is not broken. It also applies if the dog bites a person’s clothing. The person bitten does not need to suffer a wound.

If it occurs to you

You will need to show that you were “in a public place or lawfully in a private place” when you were bitten.

A person is lawfully on the private property of the dog owner when he or she is on the property by invitation–spoken or implied–of the owner. Trespassers are not entitled to recover anything from a dog owner if they are bitten.

No focus on specific breeds

The California dog bite statute allows cities to adopt their own laws regarding dangerous or vicious dogs.  However, according to the statute, no law generally may regulate specific breeds.

If it’s your dog

According to the California Penal Code, if you own a mischievous animal known for its aggressive tendencies and do not use what is considered ordinary care, you may be guilty of a felony. This is the case with the death of Diane Whipple with the mauling in the hallway outside of her apartment.

If the animal causes serious bodily injury to a human, you may be guilty of a misdemeanor or a felony.

You may also face charges if it can be shown that you had control of a dog trained to fight, attack, or kill, and you failed to exercise ordinary care when the dog bites someone on two separate occasions or on one occasion causing substantial physical injury.

The landlord’s responsibility

All landlords have of a duty to prevent harm to you as a tenant and to your guests.

According to the law, landlords must have actual knowledge of presence of vicious animal to be liable. This is an important point. You will need to provide evidence that demonstrates that your landlord knew about the dog’s viciousness.

If another tenant’s pet attacks you, you can allege “contractual liability” against a landlord. Contractual liability means that the landlord failed in his duty to you under the implied terms of the lease,

You could also allege a “breach of duty” to prevent harm if the landlord knew about the dangerous animal. In this instance, a breach of duty” would show that the landlord was negligent.

A landlord has no duty to warn you that a vicious dog lives in the neighborhood.

It gets more complicated when there is a third party involved. For example, in one case, a bank purchased a property at foreclosure. The court found that the bank owed no duty to someone injured by dogs on the property. The bank lacked the knowledge of danger of the dogs and lacked the ability to control them.

Service dogs that bite

California law specifically prohibits the denial of equal access in housing accommodations to persons who need a guide dog, signal dog, or other service dog or those licensed to train such dogs.

Sometimes guide dogs can be threatening. Liability for a bite by a service animal is no different from a bite by any other pet. Landlords can also be liable if a service animal bites someone.

If you have a service pet

You may be asked to provide proof of disability and the need for your animal as an accommodation. The landlord may not ask you for any particular kind of proof, but you must present some evidence that an accommodation is necessary. It may be sufficient if the dog has an official tag or license showing that it is an assistance animal.

Even if an animal does not qualify as a service animal under the specific law, a landlord may face liability for not making reasonable accommodations for a disabled person to include a pet.

Uncertain how to proceed?

Have you been bitten by the neighbor’s dog or has your dog bitten someone? Are you uncertain about your tenant’s rights? You may wish to talk to an experienced tenant attorney to talk about the specifics of case.

Know your rights. Protect yourself.

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Talk with a tenant lawyer in an obligation free telephone consultation.

Mary Catherine Wiederhold

Tenant Attorney
1458 Sutter Street
San Francisco, CA 94109

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