Liability for Bites by Tenants’ Dogs

When a renter’s dog bites a person, the victim will consider making a claim against the renter’s landlord if the renter does not have renter’s insurance (or that insurance is insufficient). The claim must be based on common law principles because there are no statutes in the USA making landlords automatically liable for dog bites. The general, traditional rule of landlord liability is set forth in Restatement (Second) of Torts §379A (1965), which states that a landlord will be held liable for any activity on his property if:

  • “(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
  • “(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.”

As it applies to dog bites, the landlord liability rules are more specific and cover a wider variety of circumstances. In most states, a landlord may be liable for injuries and bites inflicted by a dog belonging to a tenant, if the landlord (a) had scienter and the requisite degree of control over the premises or the dog itself, such as the ability to have it confined or removed, or (b) increased the risk of danger by failing to do something pertaining to the confinement or control of the dog which fell within the normal obligations of the landlord or which he undertook voluntarily, such as neglecting to fix a gate or fence. See generally Wade R. Habeeb, LL.B., Annotation, Landlord’s Liability to Third Person for Injury Resulting from Attack by Dangerous or Vicious Animal Kept by Tenant, 81 A.L.R.3d 638 (1977).

“Scienter” is defined as knowledge of a dog’s dangerousness or viciousness. (See The One Bite Rule.) A landlord’s knowledge may be actual (Rocha v. Lopez, 509 So. 2d 1241 (Fla. App. 1987)) or implied or imputed because of the actual knowledge of his agent or employee. Anderson v. Walthal, 468 So. 2d 291 (Fla. App. 1985). In one state, actual knowledge is required if the property is residential (Uccello v. Laudenslayer (1975) 44 Cal App 3d 504), or constructive knowledge if the property is commercial (Portillo v Aiassa (1994) 27 Cal App 4th 1128). The doctrine of “constructive knowledge” permits someone to be held to know something if he should have discovered it, or had enough facts to deduce it, even if he did not subjectively know the thing. When a landlord has notice of a vicious dog, he cannot be held liable under the scienter doctrine unless he has both the right to impose conditions of confinement on the dog (or evict the tenant if the conditions are not met) and the time required to do so. See, for example, dicta in Fernandez v. Marks (1982) 642 P.2d 542:

“We note that the first dog-bite incident which appears in the record occurred on January 9, 1977. Even had appellee been immediately informed thereof and thereupon elected to terminate the tenancy, she would have had to have given 28 days notice thereof under section 521-71, HRS. Thus, the tenancy would still have been in existence when the two dog-biting incidents, which gave rise to this suit, occurred. Therefore, even with knowledge of the first attack, she could not have evicted the dogs’ owner and the dogs from the premises in time to interfere with their being in Waiahole when the attacks in question occurred.”

Landlord liability law differs from state to state. One of the most sweeping reviews of the various circumstances involving landlords and tenants’ dogs can be found in Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544 (Md. 10/07/1998), discussed at Maryland Dog Bite Law, opinion available by clicking here. The Matthews opinion summarizes not just Maryland law but key decisions from all over the USA, and therefore the case is essential reading. Here are some of the circumstances in which landlords were held liable for dog bites:

  • The landlord knew that a tenant was the owner of a vicious dog. White v. Whitworth, 509 So.2d 378, 380 (Fla. 4th DCA 1987).
  • The landlord had the right to remove the dog by retaking possession of the premises. Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 118 Cal. Rptr. 741 (1975). Gallick v. Barto, 828 F. Supp. 1168, 1174-1175 (M.D. Pa. 1993), quoting Palermo v. Nails, 334 Pa. Super. 544, 547-548, 483 A.2d 871, 873 (1984). Matthews v. Amberwood Associates Limited Partnership Inc., cited above.
  • The landlord had the right to control the dog’s presence directly. Giaculli v. Bright, 584 So. 2d 187, 189 (Fla. 5. th. DCA 1991).
  • The attack occurred in a common area, meaning one that any tenant or guest could lawfully pass through or occupy, such as the hallway of an apartment building. Lidster v. Jones 176 Ga. App. 392 (1985).
  • The landlord knew that a prospective tenant had a dangerous dog, and rented to him anyway. Strunk v. Zoltanski, 62 N.Y.2d 572 (1984). McCullough v. Bozarth, 232 Neb. 714, 724-725, 442 N.W.2d 201, 208 (1989). Vigil v. Payne, 725 P.2d 1155 (Colo. App. 1986).
  • The landlord had a rule for tenants that prohibited vicious dogs, but did not enforce the rule. Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska 1986).
  • The dog was owned by an employee of the landlord who was living upon the landlord’s premises. Arlington Funeral Home v. Taylor, 474 S.W.2d 299 (Tex. Civ. App. 1971).
  • The landlord had time to abate the hazard caused by the dog, even though the landlord had given up possession of the premises. Parker v. Sutton, 72 Ohio App. 3d 296, 299, 594 N.E.2d 659, 662 (1991).
  • Where the lease agreement includes rules which specifically prohibit certain breeds of dogs, some courts have held the landlord liable for his failure to enforce those rules despite knowledge that prohibited dogs reside upon the premises. See, i.e., Matthews v. Amberwood Associates Limited Partnership Inc., cited above.

Where an attack occurs outside, off the premises owned by the landlord, courts have been reluctant to impose liability. See, e.g., Gibbons v. Chavez, 770 P.2d 377 (Ariz. Ct. App. 1988); Ward v. Young, 504 So.2d 528 (Fla. Dist. Ct. App. 1987); Allen v. Enslow, 423 So.2d 616 (Fla. Dist. Ct. App. 1982); Fernandez v. Marks, 642 P.2d 542 (Haw. Ct. App. 1982); Feister v. Bosack, 497 N.W.2d 522 (Mich. Ct. App. 1993); Wright v. Schum, 781 P.2d 1142 (Nev. 1989) [holding landlord liable on other grounds; see below]. For example, in Fernandez, a Hawaii court held that a landlord could not be held liable when the tenant’s vicious dog attacked plaintiffs off of the landlord’s premises. 642 P.2d at 544. The court reasoned that to make a landlord liable in such a situation where the landlord was not the owner or keeper of the dog and the injury occurred off the premises would have the effect of “making a landlord … an insurer of the public against injuries, off the premises, by dogs domiciled by tenants on the landlord’s premises.” Id. In other words, to place  liability on the landlord where the landlord retains no control would make the landlord in essence an insurer. As with areas off the premises, the landlord does not retain control within the leased premises. Thus, to place liability on the landlord for injuries occurring within the leased premises over which the landlord has given up control to the tenant is to make the landlord an insurer.

Nevertheless, at least one case imposed liability on the landlord based on Restatement of Torts section 324A(b) when a known vicious dog escaped through a defective gate and attacked a child off the landlord’s property. In Wright v. Schum, 781 P.2d 1142 (Nev. 1989), the landlord’s tenant had a vicious pitbull, there was a clearly defective gate, the landlord made a deal with the tenant to not evict if the pitbull were kept on a chain or inside the house, and the landlord promised a neighbor (not the eventual dog bite victim, but a different neighbor) that the landlord would “take care of the problem” with the pitbull. Relying on section 324A(b), the court held that the landlord had undertaken to perform his tenant’s duty to confine the pitbull, and had negligently breached that duty, and therefore was liable for the child’s injuries. 

One commentator argues that a landlord’s liability for harm created by the behavior of tenants (which includes the ownership of a dangerous dog) is based on the warranty of habitability. (John A. Humbach, Landlord Control of Tenant Behavior: An Instance of Private Environmental Legislation, 45 Fordham L. Rev. 223 (1976), “It is not unreasonable that the implied warranty of habitability should be extended to impose landlord responsibility for tenant misconduct.”) 

In some cases, courts have held landlords liable to their tenants who were bitten by dogs which came from adjacent property. See Liability For Bites By Dogs Upon Adjacent Property.

The liability of a hotel is similar to that of a landlord. As a general rule, a hotel has a duty of “maintaining the hotel premises in a reasonably safe condition, and of exercising reasonable care to protect them (guests) while in the hotel and in the part thereof open to the public from personal injury through his negligence.” Adams v. Dow Hotel (1938) 25 Cal.App.2d 51, 53-54.

Some states do not ever impose liability on the landlord for injuries inflicted by a tenant’s dog. For example, a landlord who has actual knowledge that a dangerous dog is on his tenant’s property, and who has every right to expel the tenant or the dog, is not liable for a victim’s injuries in the state of Kansas. (Colombel v. Milan (1998) 24 Kan.App.2d 728.) See also Arkansas Code Annotated section 18-16-110, which states: “No landlord or agent or employer of a landlord shall be liable to a tenant or a tenant’s lcensee or invitee for death, personal injury, or property damage proximately caused by any defect or disrepair on the premises absent the landlord’s: (1) Agreement supported by consideration or assumption by conduct of a duty to undertake an obligation to maintain or repair the leased premises; and (2) Failure to perfrorm the agreement or assumed duty in a reasonable manner.” The Arkansas statute has not been specifically applied to dog attack cases by a court of appeal, however.

It therefore is important to review the law of the state where the attack happened. If you are not an attorney, you need to retain one in any dog bite claim against a landlord or landowner who is suspected of being liable for injuries inflicted by a dog owned by a tenant.