California’s dog bite statute, Civil Code 3342, is one of the strictest dog laws in the country. Unfortunately, the possibility of civil liability rarely crosses the mind of dog owners but dog bite cases are common and injuries are more severe than one may expect. In California, dog owners must compensate victims whether their dog showed signs of aggression in the past or not.
The infamous California “Dog Bite Statute,” in pertinent part provides, “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.”i Although common in other jurisdictions, a “one bite rule”ii does not exist in California. California Civil Code imposes a strict liability standard on dog owners for injuries caused by dog bites. A dog owner is responsible for all injuries caused when his or her dog bites an individual, regardless of whether the dog has bitten an individual before, or whether the owner was aware of the dog having bitten an individual in the past.
Whose Dog is it Anyway?
Despite the statute’s harshness and seemingly unforgiving nature, the California dog bite statute is limited, by its own terms, to the owner of the dog. This allows for a potential defense against liability for dog bites. Under this defense, defense counsel must show the defendant was not the dog’s owner or caretaker.iii This in turn means plaintiff must show defendant was the owner/caretaker of the dog(s) involved at the time of the incident, and there is a triable issue of fact for the jury to decide on.
The term “ownership” is rather nuanced and can be proven in various ways. Information that may provide evidence of ownership includes, but is not limited to, purchase or adoption records, veterinarian records, and circumstantial evidence such as where the dog usually slept. However, exercising substantial control over a dog is the primary indication of “ownership” under the law. The California Court of Appeals has held, “[O]ne who treats a dog as living at his house, and undertakes to control his actions is the owner.”iv The owner of an animal is the person to whom it belongs.v Whether or not a person treats a dog as living at his house and undertakes to control his actions depends upon the particular facts and circumstances of each individual case.vi A person may legally “own” an animal and yet not undertake control of a dog’s actions which is required to establish liability for the dog’s bites .vii In short, one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law; but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper.viii
Not My Dog!
Perhaps the most complex legal scenario is a situation in which plaintiff sues the landlord of the property where a dog owner lives. If the landlord is not an “owner” of the dog, plaintiff must rely on the scienter cause of action. In other words, “[A] keeper, in contrast to an owner, is not an insurer of the good behavior of a dog but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animal shall attach to him.”ix In such scenario, plaintiff must show the landlord had either actual knowledge of the dog’s dangerous propensities or “must have known” of those propensities before liability will attach.
Liability for a dog bite may attach not only to the owner, but to a keeper as well if the latter has knowledge of the viciousness of the animal.x Thus, a person, although not the owner of a vicious dog, may make himself or herself liable to others by knowingly keeping or harboring the dog upon his premises, after knowledge of his vicious propensities. Still, this requirement poses special difficulty for plaintiff to establish if there appears to be no evidence supporting previous aggression by the dog.
Although notoriously one of the toughest dog laws in the country, California’s Dog Bite Statute still allows for some viable defenses. Regardless of the facts of the case, attorneys representing in dog-bite cases should first establish the ownership of the dog, and subsequently evaluate whether any evidence of the dog’s alleged vicious propensities existed prior to the incident. If a plaintiff sues the landlord of property where a dog owner lives, plaintiff must show the landlord had either actual knowledge of the dog’s dangerous propensities or “must have known” of those propensities. These defenses may allow landlords and other third parties to avoid liability for dog bites for dogs they do not own.
i Cal. Civ. Code § 3342.
ii The “one bite rule,” applicable in other jurisdictions, states that an owner shall be liable for dog bites only if the owner has previous knowledge of the dog’s aggressive qualities, or if those aggressive qualities have previously manifested.
iii See Smythe v. Schacht (1949) 93 Cal.App.2d 315 [209 P. 2d 116].
iv Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 42, 177 P.2d 51, italics added.
viii 3 C.J.S., Animals § 165, p. 1266; Id.
ix Buffington v. Nicholson (1947)78 Cal.App.2d 37, 42 [177 P.2d 51].
x Menches v. Inglewood Humane Soc., 51 Cal.App.2d 415, 417, 124 P.2d 870, 871.