Liability Based on Other Grounds in California

Liability for battery 

Battery is defined as a harmful contact intentionally done. Ashcraft v. King (1991) 228 Cal.App.3d 604, 611. To constitute a battery, an act has to be unconsented to; an illegal act is not required. Barouh v. Haberman (1994) 26 Cal.App.4th 40. In that case, the defendant slapped the plaintiff on the side of his head, without warning.

If the defendant intentionally caused the dog to attack the plaintiff, a cause of action for battery may be stated, with a request for punitive damages. Intent to cause harm may be proved several ways:

“If the defendant acts with the intention of bringing about some type of harmful or offensive contact with plaintiff, he or she will be liable for any resulting injuries, even though he or she may not have intended the particular harm that resulted or any harm at all. Although the general definition of battery refers to ‘intentional contact,’ the authorities nevertheless indicate that an intent to cause an apprehension of harmful or offensive contact will suffice to create liability for resulting actual contact.” Levy, Golden, Sacks, 3 California Torts (1994), “Assault and Battery,” section 41.01[3][b], p. 41-8. 

Liability for failure to vaccinate 

A dog owner is required to vaccinate his or her dog with an anti rabies vaccine. Health and Safety Code section 1920, subdivision (b), provides in part that “[e]very dog owner, after his or her dog attains the age of four months, shall, at intervals of time not more often than once a year, as may be prescribed by the state department, procure its vaccination by a licensed veterinarian with a canine anti rabies vaccine ….” County ordinances frequently contain the same requirement.

A bite victim who has to submit to rabies treatment can base a cause of action on the fact that the attacking dog was over four months old when it bit plaintiff and had not been vaccinated against rabies. Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399-1400.

Liability for injuries inflicted in ways other than a bite

The scienter cause of action can be used where the injuries were inflicted in ways other than a bite. The victim must prove the existence of a dangerous propensity that was known to the defendant.

A dangerous propensity can include dangerous playfulness and over-demonstrative affection:

“[O]ne who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under [section 509 of the Restatement] for harm done by its dangerous playfulness or over-demonstrative affection …. [Par.] … [L]ikewise [i]f the possessor knows that his dog has the playful habit of jumping up on visitors, he will be liable without negligence when the dog jumps on a visitor, knocks him down and breaks his hip …. ” (Restatement Second of Torts, sec. 509, comments (c) and (i), cited in Drake v. Dean, supra, 15 Cal.App.4th at p. 922.) 

The treatise California Torts states:

“The type of propensity necessary to hold a possessor strictly liable for injuries caused by a domestic animal need not necessarily be the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. On the contrary, any propensity on the part of an animal that is likely to cause injury to human beings, under the circumstances in which the party controlling the animal places it, is a dangerous or vicious propensity within the meaning of the law. *** The tendency of a dog to jump on people has also been held to constitute a dangerous propensity.” (1 California Torts (1994), “Strict Liability — Animals,” sec. 6.10[2][a], p. 6-7.) 

However, it should be noted that evidence that an animal had infrequently jumped against persons was held insufficient to support a verdict when plaintiff was knocked to the ground when the dog ran into the back of her legs. (Hagen v. Laursen (1953) 121 Cal.App.2d 379.)

Liability for a dog’s wounding of other animals 

California Civil Code section 3341 provides that the owner, possessor or harborer of a dog that wounds certain animals — not including dogs and cats — must pay damages and costs of suit:

3341.  The owner, possessor, or harborer of any dog or other animal, that shall, on the premises of any person other than the owner, possessor, or harborer of such dog or other animal, kill, worry, or wound any bovine animal, swine, horse, mule, burro, sheep, angora goat, or cashmere goat, or poultry, shall be liable to the owner of the same for the damages and costs of suit, to be recovered in any court of competent jurisdiction
1. In the prosecution of actions under the provisions of this chapter, it shall not be necessary for the plaintiff to show that the owner, possessor, or harborer of such dog or other animal, had knowledge of the fact that such dog or other animal would kill, wound or worry bovine animals, swine, horses, mules, burros, sheep, goats, or poultry. [ … ]

For cases involving the negligent injury to or killing of a dog, see When a Dog Is Injured or Killed.

Landlord liability for dog bites inflicted by tenant’s dog

Under some circumstances, a California landlord can be held liable when a dog belonging to a tenant bites a person. For example, the landlord might have been taking care of the dog, or might have failed to repair a gate or fence. In such cases, the liability of the landlord would be based upon negligence.

A commercial landlord can be held liable for a dog attack if he has actual or constructive knowledge of the dog’s viciousness prior to the attack, and could have removed the dog before it injured the victim. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated: “We hold that a landlord has a duty to exercise reasonable care in the inspection of his commercial property and to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises.”

In the Portillo case, the plaintiff was bitten in a liquor store by a dog owned by the tenant who was operating the business. The court noted that it is reasonably foreseeable that guard dogs in commercial establishments open to the public will injure someone. The court held that the landlord could not avoid liability by failing to inspect the premises and thereby claim that he had no knowledge of the dog.

A landlord can be held liable when a dog belonging to a tenant bites a person, if the landlord or his representatives possessed actual knowledge of the dogís viciousness prior to the attack, and could have removed the dog before it injured the victim. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504. The essential difference between the duty of a residential landlord and that of a commercial landlord cases is that a commercial landlord has a duty to inspect the premises throughout the term of the tenancy, while a residential landlord does not because the tenant has a right of quiet enjoyment. In Uccello (supra), the court said the following about residential landlords:

“[A] duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required. For this reason we hold that a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.” Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.

At the commencement of a rental term, and when it expires, a landlord of residential or commercial property has the legal duty to inspect the premises and remedy dangerous conditions. (California Civil Jury Instructions, 1006 (Landlord’s Duty); Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal. App. 4th 608.) An inadequate fence or gate in need of repair or replacement is a dangerous condition if the landlord knows that it is to be used for the purpose of confining a dog or another animal that, if not confined, can cause damage. (Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446.)

Liability can be established even where the accident happens off the landlord’s property. For example, in Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, a tenant’s dogs attacked plaintiff four blocks away from where the dogs lived. The plaintiff sued the dog’s owner and the owner’s residential landlord. The court held that the landlord could be liable, explaining the law as follows:

“If the dog is taken on a leash by its owner, off the premises, prevention of an attack by the dog may be beyond the landlord’s control. But if the dog escapes the landlord’s property because of defects in that property, the landlord is liable for the off-site injuries.” 

Landlord liability for failure to warn about a vicious dog in the neighborhood

In Wylie v. Gresch (1987) 191 Cal. App. 3d 412 it was held that a landlord in California has no duty to warn his tenants about the presence of a vicious dog in the neighborhood. 

Liability of store for allowing dog on the premises

A store, bar or other public establishment (referred to simply as a “store”) can be held liable for a dog bite or a trip-and-fall caused by a dog if the store allows the dog to be present.

In Baley v. JF Hink & Son (1955) 133 Cal. App. 2d 102, the plaintiff was injured when she tripped over a small dog in a department store. The plaintiff had been shopping and did not see the dog, which was on a leash. The Court of Appeals held that the facts supported a claim against the store based on negligence:

“[I]t was the duty of respondent Hink [i.e., the store] to exercise ordinary care for the safety of appellant [the plaintiff]. It was for the jury to determine whether or not said respondent was guilty of negligence in permitting dogs to be brought into the store during business hours whether on a leash or not. Appellant was a business invitee and it was the duty of respondent Hink to exercise reasonable care to maintain supervision and reasonably safe aisles for its customers. … Here the hazard of another customer bringing a dog into the crowded aisles of a department store makes the defendant department store negligent particularly in view of the fact that the evidence shows that the dog had been brought into the store on previous occasions. The jury could have concluded that the department store had notice of the hazard.” 133 Cal.App.2d at pp. 111 – 112.

The court relied heavily on Hodge v. Weinstock Lubin & Co (1930) 109 Cal.App. 393, in which it was held that “[i]t was the defendant’s duty, when it invited the public into its store, to exercise ordinary care and prudence to keep the aisles and passageways of the premises in and through which, by their location and arrangement, a customer in making purchases was induced to go, in a reasonably safe condition so as not unnecessarily to expose the customer to danger or accident.” 109 Cal. App. at pp. 396-397.

Baley cited cases from other jurisdictions and therefore is a noteworthy case beyond California. 

Employer Liability When Employee Bitten by Dog

If an employee is injured on the job, his employer is required to compensate him under the Labor Code provisions dealing with workers compensation. Therefore a postal worker, utility repairman, or FedEx delivery person can make a workers compensation claim if bitten by a customer’s dog. The same is also true of a housekeeper. In Rosa Pale v. Sabrina Coble (2006) 8 Cal.App.4th ___, WCAB Rptr. 10, 332, non-published,, the Fourth District Court of Appeal held, “Workers’ compensation is the exclusive remedy available to the plaintiff attacked by the plaintiff’s employer’s dog during the course of employment [as a housekeeper], and the plaintiff may not pursue an additional action against the employer under section 3342.” See generally the the compensation provisions of Division 4 of the Calfornia Labor Code (Workers’ Compensation and Insurance).

However, the amount of money paid by “comp” is completely inadequate when it comes to disfiguring scars, pain and suffering. It would be great if the victim could sue the dog owner, but it normally is not possible. The reason is the so-called “veterinarian’s rule” which says that if you are hired to work with dogs or other animals, you are deemed to have accepted the risk of injury because it’s so common to get bitten or injured by a dog that is being treated. This rule, which is a variation on the defense of “assumption of the risk,” has been expanded to include every type of person who works with dogs.

Nevertheless, Attorney Kenneth M. Phillips was able to collect compensation from homeowners who employed a pet sitter, and from the pet sitting company that sent the pet sitter to that residence, despite the “veterinarian’s rule” and the doctrine of assumption of the risk. The homeowners and pet sitting company did not have workers compensation insurance but the homeowner had homeowners insurance. The homeowners had dogs, including one that was known to bite. The company found the pet sitter through Craigslist and sent her to the residence to take care of the dogs for several days while the homeowners were on a trip. The homeowners gave the pet sitter two pages of detailed instructions about taking care of the dogs and the house. She was bitten on the first night of her assignment. Her injuries were substantial, including wounds to her lips that resulted in terrible scars. Phillips sued the homeowners and the pet sitting company as uninsured employers, based in large part on all the instructions given to the pet sitter. Phillips successfully contended that the pet sitter was an employee of both the company and the homeowners, and as such was entitled to sue them because they did not have workers compensation insurance. The doctrine of assumption of the risk did not apply because the pet sitter, according to Phillips, was an employee. The case settled for a 5-figure sum prior to trial, which was paid in part by the company and in part by the homeowners insurance which covered the residence.