The Myths And Reality Surrounding Dog Bites

by Attorney Ronald M Papell

In years past common legend had it that “every dog is entitled to one bite”. The implication was that a dog owner would not be responsible if his/her dog bit someone if the dog had not previously bitten anyone. The theory was that the owner did not have “notice” of the dog’s dangerous propensities and that therefore could not be held responsible should the dog inflict injury on another. While that may have been the law in years past, it is no longer the law in California.

California Civil Code Section 3342 establishes “strict liability” on the part of dog owners, i.e. owners of dogs that inflict injury on another are liable for all damages caused even if the dog had no history of biting people

(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.

There are several important provisions in this code section the first of which declares that the dog owner is liable if his dog bites any person in a “public place or lawfully in a private place, including the property of the owner”. The statute makes it clear that a person who is bitten on public property, a sidewalk, street or other public place can claim damages for medical expenses and, in the case of a more serious injury, for pain and suffering including any disfigurement that may result. As well, the statute permits recovery for those injured by a dog on the property of the dog owner so long as the person is on the property of the owner “lawfully”. This of course is intended to deny recovery to those on the property illegally and would include trespassers, burglars or others who do not have the owner’s permission, express or implied, to be on the property. Those performing legal or community services, the meter reader, post man, pool man or others are also provided a remedy if bitten by a dog on the property they are visiting.

While the statute only applies to dog owners and not those who are just “keeping” the dog, i.e. dog sitters and others, those who are keeping a dog of another and know of the dangerous propensities of the dog can also be held liable should the dog bite a person legally upon their property. Although the dog sitter will not be strictly liable, they can be found responsible if they had some knowledge of the dog’s history of biting others. In a case recently resolved by our office, a dog was entrusted to a friend who knew that the dog acted aggressively when in a crowd of people. The dog keeper invited several people up to his apartment where one of the guests was bitten and suffered a laceration to her face with a resulting scar. Although the insurance company for the apartment renter at first refused to accept any responsibility, claiming that it was the dog owner who was strictly liable, when our office threatened a lawsuit, the insurance company ultimately paid their policy limit of $100,000.00 in settlement of the claim. In this instance, the dog owner was not responsible as the owner did not invite the guests up to the apartment and was not “strictly” liable for the conduct of the dog when the dog had been entrusted to another.

In short, every case needs to be evaluated on its facts to determine who should properly bear responsibility when a dog bites another. In some cases, a landlord can be held responsible where they know of the presence of a dangerous dog on their premises and fail to protect visitors legally upon the premises. Where a landlord fails to maintain his property, i.e. fails to insure that a fence is properly secure, and a dog escapes and bites a person on public property or lawfully on private property, the landlord may be found legally responsible.

While having a right to make a claim against the owner or harborer of a dog provides a remedy the real question is whether the victim can collect from the dog’s owner. In reality, most people do not have assets to satisfy a judgment against them for injuries caused to another. It is, of course, why people purchase insurance to protect themselves in the event they, or their dog, should cause injury to another. Most responsible homeowners carry insurance to protect themselves in the event that a fire or other disaster should strike their dwelling. These same policies insure the homeowner and often a renter against injuries that others may sustain when upon their property whether from a fall or when bitten by the family dog. Although some policies exclude certain types of dogs with known aggressive tendencies, it is always advisable to consult with an attorney who can determine whether insurance coverage is available to compensate a victim with a significant injury resulting from a dog bite.