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:
CACI No. 462.
“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):
“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:
(Cal. Food & Agric. Code, Sec. 31602.)
“Vicious dog” means any of the following:
(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.)
“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.)
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