Liability Based on Negligence and Negligence Per Se in California

California allows a person to recover damages for all types of injuries caused by dogs based on the doctrine of negligence. The California rule of negligence in dog cases is similar to that observed by almost all American states, as established by the Restatement of Torts (2d), section 518, which provides, “Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if … (b) he is negligent in failing to prevent the harm.” (Cited in Drake v. Dean (1993) 15 Cal.App.4th 915, 924.) The “harm” might consist of a bite or another means of injury, such as a scratch or violent collision that causes a broken limb.

The non-bite cases set forth a variety of circumstances that are considered to be negligence. It can be based on mishandling a dog (Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191  [horse in a parade]), ineffectively controlling or failing to control a dog (Drake v. Dean (1993) 15 Cal.App.4th 915 [leaping dog], putting a dog in a situation that foreseeably can cause injury (Baley v. J.F. Hink & Son (1955) 133 Cal.App.2d 102  [small dog on a leash]), or violating an animal control law (Delfino v. Sloan (1994) 20 Cal.App.4th 1429 [violation of  leash law]).

In Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191, a parade horse injured two bystanders. The horse had never before manifested a dangerous propensity. On that day, however, the horse was “rearing and whirling and backing around.” 15 Cal.2d at 193. The court held that nonsuit was improper on the count that alleged negligent supervision and management of the horse. The case creates liability for mishandling a dog or any other animal.

In Drake v. Dean (1993) 15 Cal.App.4th 915, a dog knocked a woman to the ground. The court cited with approval the following general rule: “[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from that negligence.” 15 Cal.App.4th at 926.”The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.” 15 Cal.App.4th at 926.

In Baley v. J.F. Hink & So, (1955) 133 Cal.App.2d 102 , liability was found when a small dog, on a leash, ran against plaintiff’s leg, causing her fall. The court reasoned that, because the parties were in a department store, the dog owner should have exercised greater control and the store could be held liable for negligence. Baley thus holds that it is negligent to place or permit a dog to be in a situation that foreseeably can result in injury. Restatement Second, section 518, comment (h), cautions that “even ordinarily gentle animals are likely to be dangerous under particular circumstances.” See also Liability Based on Other Grounds in California.

Liability for ineffective control does not rest on proving defendant’s animal is vicious toward people generally. Restatement Second, section 518, comment (h), recognizes that “even ordinarily gentle animals are likely to be dangerous under particular circumstances.” For that reason, an animal owner is required to (a) know the animal’s normal tendencies, (b) know which normal tendencies are likely to be dangerous under particular circumstances, and (c) exercise reasonable care to prevent harm from those normal, but dangerous, tendencies. (Id.)

Proof of dangerous propensity is not required

It is important to note that in California, a negligence claim does not require proof of a dog’s dangerous tendencies or the owner’s knowledge of them. Instead, it only requires showing that it was foreseeable that injury could result from a particular situation involving the dog.

“In a negligence action for personal injury caused by a dog, the plaintiff need not plead and prove that the injury was caused by some abnormal trait of the animal. The plaintiff need only prove that the defendant could reasonably have anticipated that the dog’s conduct would cause injury and that the defendant did not exercise reasonable care to control the dog.” (Levy, Golden, Sacks, 1 California Torts (1994), “Strict liability — Animals,” section 6.14, p. 6.26.)

The violation of an animal control law as constituting negligence per se

The doctrine of negligence per se is codified in Evidence Code section 669, as follows:

669. (a) The failure of a person to exercise due care is presumed if:

(1)  He violated a statute, ordinance, or regulation of a public entity;

(2)  The violation proximately caused death or injury to person or property;

(3)  The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4)  The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(B)  This presumption may be rebutted by proof that:

(1)  The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2)  The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.

Delfino v. Sloan (1994) 20 Cal.App.4th 1429 holds that a local ordinance penalizing an owner whose dog roams public streets unleashed is an animal control law. This law is meant to protect public health and safety. Because of this, violating a leash law or other animal control law constitutes negligence per se.

“[I]f the evidence establishes that the plaintiff’s or defendant’s violation of the statute or ordinance proximately caused the injury and no excuse or justification for violation is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care.” (Witkin, 6 Summary  of California Law (9th Ed.), “Negligence Per Se,” sec. 818, pp. 170 et seq.

See also Rollins v. Hedin (1952) 114 Cal.App.2d 488, 490, in which the court stated that “[a] ‘leash ordinance’ such as here involved is designed for the protection of the public from dogs running at large and where its violation proximately causes injury to a plaintiff he may recover therefor against the owner.” Also see Brotemarkle v. Snyder (1950) 99 Cal. App. 2d 388, in which the doctrine of negligence per se caused the owner of a dog to be held liable for injuries to a person riding a motor scooter, when the at large dog ran into the scooter and knocked it down.

It is not a defense, in a negligence per se action based upon violation of a leash law, that the dog was controlled by some means not enumerated in the ordinance itself. In Garson v. Juarique (1979) 99 Cal.App.3d 769, the court held that when an animal control law requires a particular action, such as keeping a dog on a physical leash, the requirement is not satisfied by taking a similar action, such as keeping a dog under verbal command:

In ascertaining the intent of this ordinance, we think that it is significant that the legislative body chose only to enumerate several particular ways to restrain a dog; it did not refer to the possibility that other ways might also satisfy the ordinance. This enumeration of particulars suggests that the doctrine of expressio unius est exclusio alterius applies. Under this doctrine, the expression of one thing in a statute implies the intentional exclusion of the omitted thing. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 , 196 [132 Cal.Rptr. 377, 553 P.2d 537]; County of Madera v. Superior Court (1974) 39 Cal.App.3d 665 , 670 (114 Cal.Rptr. 283].) Since the ordinance in question expressly mentioned several particular means of preventing a dog from being deemed to be at large, yet omitted to mention the possibility of compliance through other conceivable means -- such as verbal commands given to a trained dog -- an inference arises that the means enumerated were intended to be exclusive.

By mentioning only physical restraints, the ordinance demonstrates that only such restraints were thought to provide adequate protection to the public. Psychological restraints, such as commanding a well-behaved and trained dog to sit, were not contemplated as providing adequate protection. As defendant's dog's own conduct makes clear, psychological restraints permit the public's protection to become subject to the vagary of the individual dog. We believe that the ordinance in question was intended to prevent that very situation. We therefore hold that the trial court erred when it concluded that defendant's dog was not "at large" in violation of the statute during the time that it apparently submitted to its master's command to sit on the lawn. On the contrary, the dog was at large as soon as the defendant brought the dog onto his unenclosed front yard without any physical restraints. (Garson v. Juarique (1979) 99 Cal.App.3d 769, 774.)

Dog owners frequently keep their dogs tied to benches, parking meters and other objects. This practice not only may violate local leash laws, but is a state misdemeanor. California Penal Code makes it a misdemeanor to affix any animal to anything unless the animal can reach shelter, food and water:

597t. Every person who keeps an animal confined in an enclosed area shall provide it with an adequate exercise area. If the animal is restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a manner that it will prevent the animal from becoming entangled or injured and permit the animal's access to adequate shelter, food, and water. Violation of this section constitutes a misdemeanor. This section shall not apply to an animal which is in transit, in a vehicle, or in the immediate control of a person.

Local laws also might provide other avenues of liability for dogs that cause injury. For example, a municipal code section might prohibit walking more than a certain number of dogs. Violation of such a provision could constitute negligence per se. For example, here is a section of the Beverly Hills code:

Sec. 5-2.204. Walking dogs. It shall be unlawful for any person owning, controlling, or having in their care or custody, whether upon a leash or not, upon any public street, alley, or public place or upon any unenclosed land or property, four (4) or more dogs at any one time. (5-1.206 Amd.)

Cities and counties often borrow ordinances from each other. Here is an example from the City of West Hollywood, California:

City of West Hollywood Municipal Code sec. 9.48.010: Adoption of Animal Control Ordinance. Title 10, Animals, of the Los Angeles County Code, as amended and in effect on February 5, 1993, is hereby adopted by reference as the "Animal Control Ordinance" of the City of West Hollywood. A copy of the Animal Control Ordinance has been deposited in the office of the City Clerk and shall be at all times maintained by the Clerk for use and examination by the public.

Negligence, comparative negligence, and contributory negligence are complicated doctrines

The law of negligence is very complicated and hard to research. Negligence is a common law doctrine, developed over hundreds of years by courts in different places. It includes many related doctrines, like comparative negligence and contributory negligence, which are used every day in new situations.

In short, the law of negligence, including its causes of action and defenses, is vast, complicated, and always changing. Laypersons and attorneys with limited experience should be very careful when evaluating whether an incident involved negligence or if it can be defended under related doctrines.

For more information about the law of negligence, see Legal Rights of Dog Bite Victims in the USA.

The tactical importance of a negligence cause of action in a dog bite case

In a dog bite case, it is wise to plead negligence as a strategy. This is useful if the dog bite statute does not apply for some unforeseen reason. For example, an injury that looks like a bite might turn out to be a scratch. If only the statute were alleged, there could be a failure of proof at trial. The judge might not allow a late amendment of the complaint.

For more strategy, see Tips and Tricks for Dog Bite Lawyers. For a downloadable, comprehensive dog bite complaint, see Dog Bite Lawsuit Forms.