Lead Opinion
Opinion
Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants’ dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including the standard instructions on negligence. Relying on dicta in this court’s decision in Hagen v. Laursen (1953)
Plaintiff and Judy Hightower, both members of the Jehovah’s Witnesses Congregation, were engaged in their ministry, going house to house to
Plaintiff testified that before entering onto defendants’ property, she received no indication of Bandit’s presence. There was no fence surrounding the property, nor were there any signs advising a dog was present or warning against solicitation.
At the time of these events, Bandit was leashed to a chain attached to a 100-foot guy wire which allowed him to run across the front yard of defendants’ property and gave him access to the driveway.
After Bandit knocked plaintiff to the ground, Hightower shouted for help, whereupon defendant Robert Dean emerged from his house. According to Hightower, Dean told her Bandit “had a habit of jumping on people.”
Dean denied making any such statement. He testified Bandit was well trained, well behaved and liked people. He denied Bandit had a propensity for jumping on people. There was evidence no complaint concerning Bandit had ever been received by the Shasta County Animal Control Office. Several witnesses testified that in their experience Bandit was a well-behaved, gentle animal.
Bandit was an American Staffordshire Terrier, known commonly as a pit bull, and weighed approximately 65 pounds. Plaintiff produced evidence that historically pit bulls were bred for their aggressiveness. Defendant offered evidence that pit bulls are not inherently dangerous to people. Dean did admit Bandit once barked at a stranger and would not let him come up the driveway toward the house.
Near the conclusion of the evidence counsel and the court discussed jury instructions. All agreed plaintiff was entitled to instructions on strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class. As to plaintiffs theory of negligence, plaintiff requested the jury be instructed with BAJI Nos. 3.00 and 3.10 on the general principles of negligence.
I
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. (E.g., Hillman v. Garcia-Ruby (1955)
“[Because] [t]he great majority of dogs are harmless ... the possession of characteristics dangerous to mankind ... is properly regarded as abnormal to them.” (Rest.2d, § 509, com. f.) “[F]rom time immemorial [dogs] have been regarded as the friends and companions of man.” (Rest.2d, § 509, com. f.) “[A] dog’s bad character or evil disposition is not presumed. The view expressed in Mason v. Keeling . . . [1699, 12 Mod. 332] that ‘the law takes notice, that a dog is not of a fierce nature, but rather the contrary’ is
It is because dangerous propensities are abnormal to dogs as a class that the rule of strict liability comes into play. “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.” (Rest.2d, § 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.” (Hicks v. Sullivan, supra,
“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 . . . .” (Rest.2d, § 509, corns, c, i.)
The rule of strict liability is exemplified in decisions such as Hicks v. Sullivan, supra,
In this case plaintiff adduced evidence pit bulls historically were bred for their aggressiveness and that Bandit, who weighed 60 to 70 pounds, had a tendency, known to defendants, to jump on people and in fact jumped on plaintiff, knocking her down and breaking her hip.
The jury was instructed on strict liability in terms of BAJI No. 6.66, as follows: “If you find that the plaintiff was injured by the dog owned or kept by the defendant and that before the plaintiff was injured by said animal the defendant knew or had reason to know of the particular vicious or dangerous trait or propensity in the animal which caused plaintiff’s injuries, you will find in favor of the plaintiff and against the defendant and award the plaintiff such damages as you find that the plaintiff suffered from injuries which legally resulted from such vicious or dangerous trait or propensity, [f] An owner or keeper of an animal has reason to know of the trait or propensities of the animal when the owner or keeper has notice of facts that a reasonable person would have.”
Plaintiff complains, however, that the trial court erred in refusing her special instruction on strict liability, which stated: “The (a) vicious propensities and dangerous character of a dog and (b) knowledge thereof by his owner may be inferred from evidence that the dog was kept (1) tied (2) as a watchdog and also (3) from his size and breed.”
Plaintiffs rejected instruction is taken verbatim from Frederickson v. Kepner (1947)
Although correct statements of the law taken from opinions of reviewing courts may provide a basis for instructions, “an extract may be inappropriate if the facts underlying the opinion are different from those presented in the new case.” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 250, p. 255.)
Frederickson involved an appeal from a judgment of nonsuit, and held only that there was sufficient evidence to submit to the jury the issue whether the police dog was a dangerous animal. Frederickson does not stand for the rule the jury should be given particular instructions setting forth the specific facts from which an inference of dangerousness may be drawn. Nor should such an instruction have been given here. An instruction which singles out and emphasizes portions of the evidence is argumentative and improper. Plaintiff was no more entitled to her requested instruction than defendants would have been to an instruction that the jury could infer Bandit had no dangerous propensity from the lack of any complaint to the animal control department and the fact certain witnesses testified Bandit was gentle and well behaved. The question whether Bandit had a vicious or dangerous propensity was for the jury to decide based upon all of the evidence. Counsel were free to argue the evidence and the inferences that could be drawn from it, but no additional instructions were necessary to assist the jury in its determination of the question of dangerousness.
II
We address plaintiff’s contention it was error to refuse her preferred negligence instructions. The common law recognizes negligence as a distinct legal theory of recovery for harm caused by domestic animals that are not abnormally dangerous. Restatement Second section 518 provides: “Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if . . . (b) he is negligent in failing to prevent the harm.”
The amount of care required of a keeper of a domestic animal that is not abnormally dangerous is commensurate with the character of the animal.
On the other hand, “[t]here are "certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the purpose for which it is proper to keep them is to be satisfied, that they have traditionally been permitted to run at large. This class includes dogs, .... Although it is not impossible to confine dogs to the premises of their keepers or to keep them under leash when taken into a public place, they have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control. . . . However, although the possessor or harborer of a dog ... is privileged to allow it to run at large and therefore is not required to exercise care to keep it under constant control, he is liable if he sees his dog . . . about to attack a human being or animal or do harm to crops or chattels and does not exercise reasonable care to prevent it from doing so.” (Rest.2d, § 518, com. j.)
“One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.” (Rest.2d, § 518, com. h.)
In determining the keeper’s liability for negligence for injuries inflicted by a domestic animal, the criterion usually adopted is one of reasonable anticipation of the occurrence, i.e., foreseeability. (Hagen v. Laursen, supra,
Endresen v. Allen (Wyo. 1978)
In Arnold v. Laird (1980)
In Ryman v. Alt (Minn. 1978)
The Ryman court held plaintiff was entitled to go to the jury also on negligence: “On several occasions, we have recognized a cause of action for injuries inflicted by a domestic animal based entirely upon the negligence of the animal’s owner or-keeper. [Citations.] [j[] A plaintiff who believes his proof may be adequate to establish negligence by the animal’s keeper may also proceed under the common-law scienter theory. The scienter action is
In Westberry v. Blackwell (1978)
On appeal, the court found there was sufficient evidence to go to the jury on the theory of strict liability for known dangerous propensity. Thereafter, the court, citing Restatement Second section 518, also found sufficient evidence to go to the jury on negligence:
“Plaintiff’s second cause of action alleged defendants were negligent in failing to confine the dog. Failure to confine or control such a domestic animal can give rise to a cause of action in negligence.
“[H]ere, the evidence indicates [defendant] could have controlled or confined the dog when she knew plaintiff was leaving the premises. She knew the dog had bitten plaintiff on her way into the house. Whether a reasonable person in the exercise of ordinary care would have restrained the dog is properly a question for the jury.
“The defendants’ motion for a judgment of involuntary nonsuit should not have been granted. Viewing the evidence in the light most favorable to the plaintiff, a legitimate question of fact for the jury was presented, both as to the charge in strict liability and the charge in negligence.” (Westberry, supra, 577 P.2d at pp. 76-77, fn. omitted.)
In DeRobertis v. Randazzo (1983)
In Hagen v. Laursen, supra,
This court also held plaintiff failed to prove general negligence predicated on any act or omission of defendants. Defendants’ two dogs were Irish setters, approximately five years old and weighing respectively thirty-five and forty-five pounds, more or less. “On the occasion when plaintiff was injured the dogs were frolicking, occasionally going into the road and back to their home grounds. They romped and played with each other; would jump at each other, wrestle, run, roll over, pretend to bite each other, and generally indulge in the antics usual with dogs at play. Their actions were described as the average play of a dog. No one had seen them run into anyone while playing, before [plaintiff] received her injuries. They were not shown to have been more boisterous than dogs usually are. There was no evidence that these dogs were vicious.” (
“[Plaintiff] was well acquainted with the dogs and had often observed them at play. At the time of the accident [plaintiff] had seen the dogs playing and while this was going on had gone across the road and onto the premises of [defendants] where she stood conversing with a group of people, which included [defendant] and some relatives of [plaintiff]. The dogs were frolicking about, the women were talking; [plaintiff] stood with her back toward the area in which the dogs were for the moment at play and did not, therefore, see them approaching her. Others, however, including [defendant]
After an excursive discussion in which legal principles governing strict liability and negligence were conflated (121 Cal.App.2d at pp. 382-383), this court analyzed defendants’ contention that the evidence, as a matter of law, was insufficient to prove a charge of general negligence: “Giving full play to the rule that negligence is usually a question of fact, still negligence cannot be here predicated upon any act or omission of [defendant]. The ground of liability here is reasonable anticipation of the occurrence and reasonable opportunity to act. Dogs at play rarely run against stationary objects whether tree, post or person. They generally look where they are going and this is self-preservation. We are unable to see where in the situation confronting her [defendant] could reasonably be held to anticipate that the playing dogs would blindly run into a group of people and knock one of them down. . . . Here was misadventure pure and simple without liability . . . .” (Id. at p. 383.)
As the Restatement Second section 518 and the cases indicate, negligence may be predicated on the characteristics of the animal which, although not abnormal to its class, create a foreseeable risk of harm. As to those characteristics, the owner has a duty to anticipate the harm and to exercise ordinary care to prevent the harm. (See Hagen v. Laursen, supra, 121 Cal.App.2d at pp. 382-383.) “The common law [] provided that the owner of an animal which was not vicious . . . but which was prone to some other potentially harmful behavior, could be held liable under a theory of negligence for any injury proximately caused by such behavior. In such cases the owner was only liable if, having knowledge of the particular propensities which created a foreseeable risk of harm, he failed to exercise reasonable care in control of the animal.” (Williams v. Johnson, supra,
Defendants rely on Hillman v. Garcia-Ruby, supra,
The Hillman court held the trial court erred in refusing strict liability instructions but that the error was harmless. The court noted instructions on strict liability would have required the jury find defendants knew of the dog’s dangerous propensities. The negligence instructions, as given, imposed that same requirement. Thus, the only difference between strict liablity and the negligence instructions presented to the jury is that the former theory imposes an absolute duty to restrain the dog while the duty under the latter theory requires only the exercise of ordinary care. As the evidence was uncontradicted defendants did nothing whatever to restrain the dog, i.e., they failed to exercise even ordinary care, the verdict in favor of defendants necessarily indicated the jury found the dog had no known dangerous propensities. Thus, a result more favorable to plaintiff would not have have been reached if strict liability instructions had been given. (
Hillman does not support defendants’ position because on appeal the plaintiff in Hillman did not challenge the correctness of the negligence instructions which, as given, conditioned the existence of a duty of care on defendants’ knowledge of a dangerous tendency of their dog. The only issue plaintiff tendered on appeal was the trial court’s refusal to instruct on strict liability. Thus the Hillman court had no occasion to speak to the validity of the instructions on negligence and did not do so.
In this case, plaintiff offered BAJI instruction Nos. 3.00 and 3.10 in support of her theory defendants were negligent in the care and control of Bandit. (See fn. 1, ante.) The offer was refused, and the case went to the jury only on strict liability instructions. By special verdict, the jury found Bandit did not have “a particular vicious or dangerous propensity!)]” Since the evidence was uncontradicted that Bandit jumped on plaintiff and knocked her down, the special verdict implies the jury found either such conduct was not dangerous or, even if dangerous, was atypical of Bandit. If the latter, the jury presumably found plaintiff did not carry her burden of proving that
Although the jury found Bandit had no vicious or dangerous propensity, that finding did not resolve the question of negligence tendered by plaintiff’s complaint. Plaintiff alleged defendants “negligently . . . failed to . . . control” Bandit. Thus, there were issues whether Bandit posed a risk of harm to others; whether that risk was reasonably foreseeable; and if so, whether defendants failed to exercise ordinary care to avert that risk by controlling Bandit.
Unlike Hagen v. Laursen, supra, where the dogs’ conduct prompted the court to observe that “dogs at play rarely run into stationary objects whether tree, post or person” (
Moreover, even though the jury found jumping on people not to be a dangerous propensity, we cannot say that a jury which exonerated Bandit of a vicious or dangerous propensity, if instructed on negligence, would necessarily have found that Bandit’s conduct was not potentially harmful even though the jury did not regard it as vicious or dangerous. Instead, the jury may have regarded Bandit’s conduct as playful or perhaps as manifesting an unrestrained friendliness and thus have been disinclined to characterize it as vicious or dangerous.
The evidence also presented a question for the jury on the issue of breach, i.e., whether defendants, knowing of Bandit’s potential to do harm, exercised ordinary care to avert that harm by adequately controlling him. Although Bandit was on a leash, the radius of the tether gave him access to defendants’ driveway on which visitors to defendants’ house approached.
We acknowledge that in refusing standard negligence instructions, the trial court was led into error by this court’s decision in Hagen v. Laursen, supra. We do not disagree with the holding of Hagen v. Laursen, nor do we fault the Hagen court’s analysis to the extent it applied the law of negligence to the facts of the case. (121 Cal.App.2d at pp. 383-386.) However, the Hagen court also discussed strict liability (id. at pp. 382-383) and cited cases in which strict liability was in issue whereas in the case before it there was no issue of strict liability presented. Although the discussion was unnecessary to the court’s holding and therefore dicta, its presence in a case involving only negligence very strongly implies that the principles of strict liability there discussed are applicable in an action for negligence. To the extent Hagen so implies, it is overruled.
For the benefit of court and counsel on remand, we address plaintiffs contention the trial court erred in allowing the witness Hightower to be cross-examined with regard to whether her status as a fellow Jehovah’s Witness or some tenet of her faith biased her in favor of plaintiff. Plaintiff cites as authority Evidence Code section 789 which states: “Evidence of. . . religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.” Plaintiffs claim fails for two reasons.
First, plaintiff did not argue Evidence Code section 789 to the trial court as a basis for her objection to defendants’ cross-examination of Hightower. Prior to trial plaintiff had moved in limine to restrict any inquiry into either her or Hightower’s religious beliefs. Plaintiff did not then raise Evidence Code section 789 as the basis for her motion. Moreover, the trial court deferred decision on the in limine motion to the appropriate point at trial. When the issue arose during Hightower’s testimony, the court ruled a limited inquiry on the issue of bias would be permitted. Plaintiffs sole objection at that point was that a particular question asked by the defense was “vague and ambiguous.” Because there was no objection based on Evidence Code section 789, that issue has been waived on appeal. (Evid. Code, § 353.)
Equally important, Evidence Code section 789 does not preclude the inquiry made by the defense. This section simply codifies existing law expressed over a century ago in People v. Copsey (1887)
The judgment is reversed. Plaintiff is to recover costs.
Nicholson, J., concurred.
Notes
BAJI No. 3.00 states: “A plaintiff who was injured as a [proximate] result of some negligent conduct on the part of a defendant is entitled to recover compensation for such
BAJI No. 3.10 states: “Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the circumstances similar to those shown by the evidence. ['][] It is the failure to use ordinary or reasonable care, [f] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. [J] [You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.]”
The elided subdivision (a) imposes liability on the keeper if he “intentionally causes the animal to do the harm.”
Although the Endresen court made no mention of Restatement Second section 518, in a later case the court suggested Endresen's discussion of negligence was based on that section. (Williams v. Johnson (Wyo. 1989)
In these circumstances California by statute imposes strict liability irrespective of scienter. Civil Code section 3342 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 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.”
The court was “somewhat persuaded to this view” (
The dissent mistakenly ascribes to the majority the position, obviously unsupportable in law, that it is “foreseeable that dogs, regardless of their prior characteristics, will react to strangers coming on their owners’ property in a dangerous and harmful way.” (Italics added, dis. opn., post, at p. 943.) The dissenting justice then mistakenly taxes the majority with the “misapprehension that the owners of a peaceful dog are liable in negligence if the animal causes some injury to a person and the owners could have prevented the harm had they confined or controlled the dog.” (Italics added, dis. opn., post, at p. 943.)
We acknowledge that the dog is man’s best friend and have no desire to spurn or betray that friendship nor design to hold his master liable for conduct of the dog in acting as dogs characteristically and commonly act, i.e., peacefully and harmlessly. Moreover, we acknowledge that the owner is not liable in negligence for any harmful conduct of his dog that was not reasonably foreseeable. Here, however, there was evidence from which a jury instructed on negligence could have found Bandit’s conduct was harmful and reasonably foreseeable and that defendants did not exercise ordinary care in so controlling Bandit as to avert his known potential to cause harm.
The Hagen court relied on the Restatement of Torts whereas we rely on its successor, the Restatement Second. (See Canfield v. Security-First National Bank (1939)
Note that under subsection (2) of former section 518 a keeper of a dog which is not abnormally dangerous “is not liable for any harm done by it while at large.” This exception to
Dissenting Opinion
Today, the majority holds that the owners of a dog not previously vicious or dangerous are liable in negligence for failing to control the animal because it is foreseeable that such a dog will jump up on people and knock them down. This greatly, and I think mistakenly, expands the liability of dog owners in California.
As the majority sees it, “[although the jury found Bandit had no vicious or dangerous propensity, that finding did not resolve the question of negligence tendered by plaintiff’s complaint.” (Maj. opn., ante, at p. 931.) To the contrary, that finding did resolve the question of negligence because, as we shall see, absent such a propensity the owners had no duty to control or confine their dog. By drawing an untenable distinction between dogs which are dangerous on the one hand and those which pose a foreseeable risk of harm on the other, the majority has transmogrified the question of legal duty into a factual issue for the jury. This unwarranted distinction lies at the heart of the majority’s misperception of the element of duty. It is our task, and not the jury’s, to determine if the defendants had a duty to confine or constantly control their dog. Under the law, any propensity of a dog which might foreseeably cause harm to people, whether that tendency arises from an unrestrained friendliness at one end of the spectrum or from a vicious proclivity at the other, imposes upon the owners a duty to use reasonble care, provided only that the owners knew or should have known of that propensity. This duty arises because, in the eyes of the law, such a dog is deemed dangerous.
It has been noted that “[i]n general the common law distinguishes between wild and domesticated animals for purpose of imposing liability on their owners. Under the common law an owner or keeper of a wild animal is absolutely liable for injuries inflicted by such animal, regardless of the absence of any negligence on his part or the contributory negligence of the person injured, while an owner or keeper of a domesticated animal which is not naturally dangerous to mankind, such as a dog or cat, is not subject to liability for harm done by the animal if he does not know or have reason to know that the animal is abnormally dangerous. However, when the owner or keeper of a dog or cat knows or has reason to know that the animal has a dangerous propensity abnormal to its class, the animal passes into the wild animal category, and its owner becomes strictly liable for injuries inflicted by the animal which result from the particular dangerous propensity known to him, even though the owner exercised the utmost care to prevent the animal from doing the harm.” (Annot., Liability of Owner or Operator of Business Premises for Injury to Patron by Dog or Cat (1989)
For the most part, California
A dangerous propensity need not be a vicious one. “The rule is also applicable if the animal is not vicious but has a dangerous tendency that is unusual and not necessary for the purposes for which such animals are usually kept. Thus, one who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under the rule
On the other hand, if the owner of a domestic animal (such as a dog) does not know, or have reason to know, the animal is vicious or abnormally dangerous, he is liable only if he was negligent. Under the Restatement, in such a case the owner “is subject to liability for harm done by the animal if, but only if, . . . he is negligent in failing to prevent the harm.” (Rest.2d Torts, § 518, subd. (b).) The amount of care required “is commensurate with the character of the animal.” (Rest.2d Torts, § 518, com. f.) “In determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics. . . .” (Rest.2d Torts, § 518, com. g.) The keeper “is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway.” (Rest.2d Torts, § 518, com. h.) Under the Restatement, certain classes of domestic animals “can be confined to the premises of their keepers or otherwise kept under constant control without seriously affecting their usefulness and which are not abnormally dangerous. Although the utility of these animals is sufficient to justify their being kept without risk of the strict liability stated in § 590, many of them are recognizably likely to do substantial harm while out of control and, therefore, their keepers are under a duty to exercise reasonable care to have them under a constant and effective control. . . .” (Rest.2d Torts, § 518, com. e.) Dogs, however, are not within this class of domestic animals.
Under the Restatement’s rule, dogs do not have to be confined or constantly kept under control. “There are certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the
It follows from this that the owners of a dog which is not vicious or abnormally dangerous have no duty to confine their pet or to keep it under constant control. Absent such a duty, there can be no liability for the failure to control or maintain the dog. (Nava v. McMillan (1981)
The California authorities and the Restatement treat dogs as a “domestic animal,” that is “an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.” (Rest.2d Torts, § 506, subd. (2).) Dogs “have from time immemorial been regarded as the friends and companions of man. The great majority of dogs are harmless, and the possession of characteristics dangerous to mankind ... is properly regarded as abnormal to them.” (Rest.2d Torts, § 509, com. f.) It is therefore not foreseeable under the law that such a “harmless” animal “devoted to the service of mankind” will suddenly cause harm to people in the absence of actual or imputed knowledge of some dangerous or vicious characteristic of the dog. As we noted in Hagen v. Laursen (1953)
We made this precise point in Hagen, the case so disparaged by the majority. There, we held as a matter of law that it was not foreseeable that defendant’s dogs would heedlessly run into a group of people and knock one of them down. “Dogs at play rarely run against stationary objects whether tree, post or person. They generally look where they are going and this is self-preservation. We are unable to see where in the situation confronting her [the defendant] could reasonably be held to anticipate that the playing dogs would blindly run into a group of people and knock one of them down. . . . Here was misadventure pure and simple without liability . . . .” (
Examining the factors set forth in Rowland v. Christian (1968)
Of course, it would be possible to require dogs to be confined in cages like wild animals, but that would completely frustrate the very purpose for which dogs are kept as pets. As the Nava court accurately put it, “[k]eeping a pet dog is undoubtedly one of the most cherished forms in which the constitutionally protected right to own personal property is exercised. To most people it is more than ownership of mere personal property. More than once courts have recognized that the keeping of such pets ‘is such an important part of our way of life,’ . . . and have recognized the perhaps sentimental but nonetheless universally strong affection of mankind for the dog. . . . The status of the dog as ‘man’s best friend’ remains .... Unlike a grizzly bear, which is a wild and dangerous animal, the dog is a domesticated animal whose occasional presence in homes and neighborhoods is to be expected.” (
Since it is generally not foreseeable that a previously gentle and harmless dog will attack a human by jumping upon him, in order for the plaintiff to prevail in this case on a theory of negligence she was required either to establish that the dog’s owners knew or should have known that the dog presented a particular risk of harm to persons visiting the owners’ home because of its dangerous propensities, or that the defendants mishandled the
Of course, if the owners know or should have known that their dog possessed a dangerous characteristic, propensity or abnormality, they would then be liable in negligence for their failure to use reasonable care to prevent this foreseeable harm. (See, e.g., Uccello v. Laudenslayer (1975)
These sister jurisdiction cases of negligence all involved dogs which would be classified as dangerous under California law. As the court correctly explained in Williams v. Johnson (Wyo. 1989)
Similarly, the owners would be liable in negligence if they carelessly mishandled the animal, whatever its character. (See, e.g., Barnett v. La Mesa Post No. 282 (1940)
This was the basis for the court’s decision in Ryman v. Alt (Minn. 1978)
There is nothing extraordinary about imposing liability for negligence in mishandling animals. Thus, “[a] person may also be liable for negligence in handling an animal known to be dangerous[,] and may be liable for negligence in handling an animal that is not vicious, or, if vicious, is not known to be so.” (Talizin v. Oak Creek Riding Club, supra, 176 Cal.App.2d at pp. 437-438, citations omitted.) But this case, like the Talizin case, did not involve mishandling of a domestic animal. At the time of the incident, defendants apparently were inside their home and were not handling the dog at all. As the Talizin court explained in a case involving a horse, “the negligence was not in the manner in which the animal was handled, but in permitting him to be jumped, at a public exhibition, even when ridden by a skilled rider. This can be negligence only if the defendants knew or should have known . . . that the horse had the dangerous propensity that it had.” (Ibid.)
The only evidence about the dog’s dangerous propensity in this case was that it jumped up on plaintiff with such force as to cause her to fall and, according to plaintiffs disputed version, the defendant admitted the dog “had a habit of jumping on people.” Although this evidence was disputed, it was sufficient to establish a known, dangerous propensity and thus to entitle plaintiff to submit the case to the jury on a theory of negligence as well as strict liability.
Although plaintiffs counsel acknowledged that “the case law may say that you can’t sue somebody unless there is a dangerous propensity,” he nevertheless declined the court’s offer, stating he thought it to be “bad law.” As he saw it, “when people put dogs out in their front yard like that, they should know that whenever a stranger comes up, that dog is going to react, may do something.” Summarizing his position, counsel put it this way: “I am saying the case law is probably against me; all right. But for purpose of appeal, if you rule against me, I want to say I think that a person that is injured by a dog that is negligently maintained, whether or not there is a dangerous propensity shown, should be able to sue. Okay? fjfl Now the case law may be against me on that, but we have evidence now that maintaining a dog in your front yard like that is—he’s going to react to strangers, and I think that’s negligence, and I think there should be liability for something like that.”
This contention at trial that a dangerous propensity need not be shown was at odds with the way plaintiff pled her cause of action for negligence. She
If plaintiff’s theory of negligence did not rest upon a dangerous propensity, what did defendants’ negligence consist of? As I have noted, ordinary dogs do not have to be confined of kept in constant control. Thus, the failure to confine or constantly control the dog in this case cannot add up to negligence because defendants were under no duty to do so. Of course, the owner would be liable in negligence if he “sees his dog . . . about to attack a human being . . . and does not exercise reasonable care to prevent it from doing so.” (Rest.2d Torts, § 518, com. j.) But that is not this case.
So if the owners have no duty to confine or constantly control their dog, whence springs their liability for negligence? The majority says foreseeability but that cannot be the case because owners are not expected to foresee that their dogs will cause injury to people unless they have some reason to know the animal is dangerous. And the jury expressly found that the dog in this case was not dangerous. In a special verdict, the jury answered this question in the negative: “Did the dog, Bandit, have a particular vicious or dangerous propensity before August 5, 1987 [the date of the injury]?” Because of this negative answer, the jury was instructed that it need not answer the next question, “Did the [defendants] know or have reason to know of the particular vicious or dangerous propensity of the dog, Bandit?”
Because the jury found that the dog did not have any such dangerous propensity, there was no harm to foresee and the owners, in the words of the Restatement, were not “negligent in failing to prevent the harm.” (Rest.2d Torts, § 518, subd. (b).) Thus, any conceivable error from failing to instruct on negligence was rendered harmless by the jury’s special verdict.
I would therefore affirm the judgment.
Respondents’ petition for review by the Supreme Court was denied July 22, 1993.
It is no answer to suggest that the technical legal definition of dangerousness in a domestic animal is at odds with the common understanding of the term and that “the jury may have regarded Bandit’s conduct as playful or perhaps as manifesting an unrestrained friendliness and thus have been disinclined to characterize it as vicious or dangerous.” (Maj. opn., ante, at p. 931.) Plaintiff did not request any such clarifying instruction explaining that “[a]ny propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangeorus or vicious propensity within the meaning of the law.” (Talizin v. Oak Creek Riding Club (1959)
As is the case with many states, California has enacted a “dog bite” statute which supersedes the common law rule by dispensing with the necessity of proving the scienter requirement. (Civ. Code, § 3342.) Because the dog in this case did not bite the plaintiff, and since this statute imposes liability only “for the damages suffered by any person who is bitten by the dog” (Civ. Code, § 3342, subd. (a)), it has no application here.
The Ballard court went on to explain that “[t]he jury, by contrast, considers foreseeability’ in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place. Second, foreseeability may be relevant to the jury’s determination of whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.” (
As we have noted, the majority draws an untenable distinction between dogs possessing vicious or dangerous propensities and those which otherwise pose a risk of harm to others. But as we have already seen, California treats any propensity of a dog which is likely to cause harm to people as a dangerous propensity. (Talizin v. Oak Creek Riding Club, supra,
BAJI No. 3.10 reads: “Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. [j[] It is the failure to use ordinary or reasonable care. [1] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence, [f] [You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.]”