Wild or Domestic Animals

One who harbors or keeps a wild animal or domestic animal with known dangerous tendencies is strictly liable for the harm it causes. Smith v. Royer (1919) 181 Cal. 165, 168; see also Rest.2d Torts § 514.

To prevail on a claim for strict liability for injury caused by a domestic animal with dangerous propensities, a plaintiff must show that:

1. defendant owned, kept, or controlled an animal;
2. the animal had an unusually dangerous nature or tendency;
3. before plaintiff was injured, defendant knew or should have known that the animal had this nature or tendency;
4. plaintiff was harmed; and
5. the animal’s unusually dangerous nature or tendency was a substantial factor in causing plaintiff’s harm.

CACI No. 462.

Strict Liability

“California has long followed the common law rule of strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class.” (Drake v. Dean (1993) 15 Cal. App. 4th 920, 922 citing as examples, Hillman v. Garcia-Ruby (1955) 44 Cal. 2d 625, 626 and authorities cited therein; Hicks v. Sullivan (1932) 122 Cal. App. 635, 638 and authorities cited therein.)

“This rule is set forth in section 509 of the Restatement Second of Torts (Restatement Second):

1. ‘A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.
2. This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.’”

Dog Bite Statute and Applicable Case Law

“Civil Code section 3342(a) the California “Dog Bite” Act, which provides in relevant part that ‘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, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.’” (Delfino v. Sloan (1994) 20 Cal.App.4th 1429, 1437.)

A petition to determine if a dog is potentially dangerous or vicious may be brought pursuant to California Food and Agricultural Code sections 31601, et seq. A hearing on such a petition must be held promptly within no less than five working days nor more than 10 working days after service of the petition and notice upon the owner or keeper of the dog. (Cal. Food & Agric. Code, Sec. 31621.) At the hearing the court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses. (Id.) A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (Id.)

“Potentially dangerous dog” means any of the following:

1. Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.
2. Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.
3. Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.

(Cal. Food & Agric. Code, Sec. 31602.)

“Vicious dog” means any of the following:

1. Any dog that, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.
2. Any dog previously determined to be and currently listed as a potentially dangerous dog that, after its owner or keeper has been notified of this determination, continues the behavior described in Section 31602 or is maintained in violation of Sections 31641, 31642, or 31643.”

(Cal. Food & Agric. Code, Sec. 31603.)

A severe injury is defined as “any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.” (Cal. Food & Agric. Code, Sec. 31604.)

“This statute specifically establishes a dog owner's liability for the injuries inflicted by the owner's dog, without a showing of willfulness under section 20.” (Id. citing People v. Berry (1991) 1 Cal.App.4th 778, 787, stating in relevant part: “Civil Code section 3342 creates a remedy. It allows one to recover damages caused by a dog bite without having to show fault, i.e., under strict liability.”)

At the hearing the court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses. (Food & Agric. Code Sec. 31621.) A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (Food & Agric. Code Sec. 31621.)

Reasoning for Strict Liability Concerning Dogs

“It is because dangerous propensities are abnormal to dogs as a class that the rule of strict liability comes into play.” (Drake v. Dean, supra, 15 Cal. App. 4th at 922.) “‘One who keeps a [dog] that to his knowledge is vicious, or which though not vicious possesses dangerous propensities that are abnormal thereby introduces a danger not usual to the community and which, furthermore, is not necessary to the proper functioning of the animal for the purposes that it serves.’” (Id. citing Rest.2d, Sec. 509, com. d.) “‘When an owner has reason to believe his dog is savage, ill-tempered, mischievous or dangerous to persons and property, he may be kept only at the owner's risk, who will become liable for damages resulting from such conduct of the dog which exhibits such known traits or character.’” (Drake at 922 citing Hicks v. Sullivan, supra, 122 Cal.App. at 638.)

“Thus, one who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under [section 509] for harm done by its dangerous playfulness or over- demonstrative affection... [Likewise] [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....” (Drake v. Dean (1993) 15 Cal. App. 4th at 923 citing Rest.2d, Sec. 509, coms. c, i.)

“The rule of strict liability is exemplified in decisions such as Hicks v. Sullivan (1932) 122 Cal. App. 635 at 637-638. There, the plaintiff was attacked by a dog known to its owner (defendant) to be vicious and ill-tempered. Following judgment for plaintiff, this court affirmed, noting: ‘Most dogs are usually considered domestic, companionable, good natured and harmless.‘” (Hicks, supra, at 637.) ”They are valuable as watch dogs and for the care of stock. The law recognizes a property valuation in dogs and authorizes the ownership and possession of such animals... [However] ‘[w]hen it is once established that the dog is of a vicious and mischievous nature and that the person owning or keeping it had knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal (which is) naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary.’” (Id.) “‘[T]he gravamen of the action is knowledge of the owner that the beast was the possessor of vicious or mischievous propensities. Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown.’” (Drake v. Dean (1993) 15 Cal. App. 4th at 923 citing Hicks v. Sullivan, supra, 122 Cal.App. at 637-638.)