*1 6,May Third Dist. [No. C007051. 1993.] DRAKE,
RUTH MILDRED Plaintiff and Appellant, al., ROBERT DEAN et Defendants and Respondents.
Counsel Trezza, Ithurburn & Bertrand Steidlmayer and F. Ithurburn for Plaintiff Appellant.
Moss & Enochian and Stewart C. Altemus for Defendants Respondents. Opinion
PUGLIA, P. J.
filed this action to recover
personal injuries
Plaintiff
sustained when she was injured by defendants’
dog.
complaint alleges
two counts
sounding respectively
strict
A
negligence.
returned a verdict in favor of
*5
On
defendants.
contends the
appeal, plaintiff
trial court
in
erred
admitting certain evidence and in
refusing
give certain
instructions,
including
standard instructions on negligence. Relying on
in
dicta
this
in
court’s decision Hagen v. Laursen
Plaintiff and Hightower, Judy both members of the Jehovah’s Witnesses Congregation, were engaged their house to house to ministry, going
discuss the Bible with might those who be interested. As walked they along house, toward driveway defendants’ Hightower noticed defendants’ dog, Bandit, said, out, sitting near the corner house. She “Look . . . it’s a react, run, bull.” pit Before plaintiff could Bandit arrived on the on jumped plaintiff and knocked her to the ground. Plaintiff suffered a broken hip lacerations to her head where it struck some rocks.
Plaintiff testified that before entering onto defendants’ she property, received no indication of Bandit’s There presence. was no fence surrounding the property, nor were there any signs advising dog present warning against solicitation. events,
At the time of these Bandit was leashed to a chain attached to a 100-foot guy wire which allowed him to run across front yard defendants’ him property gave access to the driveway.
After Bandit knocked plaintiff to the ground, Hightower shouted for help, whereupon defendant Robert Dean emerged from his house. According Hightower, Dean told her Bandit “had a habit of jumping people.”
Dean denied making such any statement. He testified Bandit was well trained, well behaved and liked He denied people. Bandit had a propensity jumping There people. was evidence no Bandit complaint concerning had ever been received Shasta Animal County Control Office. Several well-behaved, witnesses testified their Bandit experience was a gentle animal. Terrier,
Bandit was an American Staffordshire known as a commonly pit bull, and weighed approximately Plaintiff pounds. evidence that produced historically bulls were pit bred for their aggressiveness. Defendant offered evidence that pit bulls are not inherently dangerous to Dean did people. *6 admit Bandit once barked at a stranger and would him not let come up toward driveway the house.
Near the conclusion of the evidence counsel and the court discussed jury instructions. All agreed was entitled plaintiff to instructions on strict liability for harm done aby domestic animal with known vicious or dangerous propensities abnormal to its class. As to plaintiffs of theory negligence, plaintiff requested the jury instructed with BAJI Nos. 3.00 and 3.10 on the general of principles negligence.1 Defendants objected, there arguing could be no of finding absent negligence evidence defendants knew of a dangerous on the propensity part Bandit. 1BAJI No. 3.00 states: plaintiff “A who injured was as a [proximate] result of some
negligent conduct part on the of a defendant is entitled to recover compensation for such
921 379, Laursen, 121 the trial court Hagen v. Relying ruled it not those instructions were give would BAJI No. 3.00 or 3.10 unless should be suggested modified. In a discussion with counsel the court the jury find if Bandit only dangerous instructed it could it found had which knew Given the defendants or should known. negli- choice of so modified or no instructions on negligence instructions chose the matter to the gence, latter alternative. The was submitted plaintiff verdict, the found jury solely theory liability. special on the of strict By Bandit did have “a dangerous not vicious or particular propensity” judgment was entered for defendants.
I California has law rule long followed common of strict harm done aby domestic animal with known vicious or dangerous propen sities to 44 (E.g., (1955) abnormal its class. Hillman Garcia-Ruby v. Cal.2d 625, therein; P.2d v. authorities cited Hicks Sullivan [283 1033] (1932) 122 Cal.App. therein.) and authorities cited 516] This rule is set forth in section 509 of the Restatement Second of Torts (Restatement Second): “(1) A he of a domestic animal that knows possessor class, or has reason to know has abnormal to its is propensities another, subject harm done he although has harm, exercised the utmost care doing it from prevent This [f] liability is limited to harm that the abnormally results from which the propensity of possessor knows or has reason to know.” great are majority harmless ... the possession “[Because] [t]he of characteristics mankind dangerous properly regarded ... is as abnor- (Rest.2d, mal to them.” f.) com. time immemorial § [dogs] “[F]rom have been regarded as the friends and (Rest.2d, companions man.” f.) com. dog’s bad character evil is “[A] not disposition presumed. view [1699, Mason expressed Keeling . . . Mod. that ‘the law 332] notice, nature, takes a dog is fierce but rather the contrary’ defendant, Thus, injury from that to a this case you [f] entitled verdict in find: 1. That a defendant was negligent, [1]] 2. such [proximate] That [f] cause of plaintiff.” BAJI No. 3.10 “Negligence doing states: is the something reasonably which a prudent do, person would not or the something failure to do a reasonably prudent person would *7 do, under the circumstances those similar to shown the evidence. It the failure to is use ['][] care, ordinary or Ordinary reasonable or persons care is that [f] reasonable care which ordinary prudence would use in to avoid injury order themselves under or others circum- stances similar to those shown by the evidence. person will note that the whose [J] [You individual, conduct we set as a up standard is not the extraordinarily cautious nor the one, exceptionally person skillful but a ordinary prudence.]” reasonable and 922 tame, A is to be docile and harm
generally adopted. dog presumed less until the a human is contrary Harming being appears. [Citations.] as to a nature. ‘He errs contra naturam suam regarded contrary dog’s [against (Olson . . . by biting misdoing his or serious .’ v. any nature] [Citation.]” 856, 859].) Pederson 206 415 Minn. N.W.
It is as because are abnormal to a class that propensities dogs the rule of strict comes into “One who that to his play. [dog] a keeps vicious, is or which not vicious knowledge though possesses dangerous that are not usual to the propensities thereby danger abnormal introduces which, furthermore, community and is not to the function necessary proper ing (Rest.2d, d.) the animal for the that it serves.” com. purposes § “When an owner reason to his ill-tem savage, has believe is pered, mischievous or and he be persons property, may kept risk, only at the owner’s will who become liable for from damages resulting such conduct of the or exhibits such known traits character.” (Hicks Sullivan, supra, v. at Cal.App.
“Thus, one he large who knows to accustomed to keeps be violently fawn and upon children adults is liable under for [section 509] harm its done affec dangerous playfulness over-demonstrative tion. his dog knows that has the possessor ...[!]... [Likewise] [i]f visitors, playful habit he will be jumping up liable without visitor, when the him dog jumps on a knocks down and breaks his hip corns, c, (Rest.2d, i.) . . . .”
The rule of strict is in decisions as Hicks v. exemplified such Sullivan, There, supra, 635. Cal.App. by dog attacked (defendant) known to its owner to be vicious and ill-tempered. Following affirmed, judgment plaintiff, this court are noting: dogs “Most usually domestic, considered natured and companionable, good harmless. [Citation.] are They valuable as watch and the care dogs of stock. law recognizes a property valuation and authorizes ownership such possession of . . . animals. it is once [However] ‘[w]hen established that the dog is of vicious and mischievous nature that the fact, person owning or it had of that keeping the same knowledge responsi attaches to the bility owner to keep doing it from mischief keeper to, (which is) an animal naturally ferocious would be subject proof of negligence on owner part of the unnecessary.’ ‘[T]he gravamen of action knowledge of the owner beast was the possessor of vicious or mischievous or lack of care propensities. Negligence on the the owner in part of keeping need not restraining ” Sullivan, (Hicks shown.’ 637-638.) Cal.App. pp. *8 In Garcia-Ruby, supra, Hillman v. Cal.2d the court observed: no “There is as to rule of ‘The dispute liability]. keeper [the] [strict nature, an animal of a he species dangerous by any or of which knows, know, liable, has dangerous or reason to to have propensities, wrongful resulting without intent or from negligence, damage for to others absolute, such The propensity.’ keeper [Citations.] animal, of the action is not the manner the vicious but gist keeping ‘[t]he him the at with keeping knowledge all of the vicious propensities. [Citation.] animal, In such owner the instances the is an insurer acts of the against fault, injured one who is without and the owner’s ” (Id. is not in case. at p. [Citations.]’ In case adduced evidence plaintiff historically bulls were bred pit Bandit, their and that aggressiveness weighed who 60 to 70 had a pounds, defendants, known tendency, and fact on jump people on jumped plaintiff, her down knocking and her breaking hip. 6.66,
The was instructed on strict in terms BAJI No. “If you follows: that find plaintiff injured by was owned kept the defendant that by and before plaintiff injured by was said animal defendant knew or had reason to know of the dangerous vicious or particular trait or in the animal which plaintiff’s injuries, caused will you find in favor of the and against the defendant award the plaintiff plaintiff such damages as find you suffered from injuries resulted legally from such vicious trait or An propensity, [f] owner or keeper of an animal reason has to know of the trait or propensities of the animal when the owner or notice keeper has of facts that a reasonable person would have.” however,
Plaintiff complains,
trial
court erred
refusing
her
on
special instruction
strict liability,
(a)
which stated: “The
vicious
propensities
(b)
character of a
thereof
knowledge
his owner may be inferred
(1)
(2)
from evidence that the dog was
tied
kept
as a watchdog and also
from his size and breed.”
Plaintiffs
rejected instruction is taken verbatim from
Frederickson
Kepner (1947)
800],
Although correct statements of the law taken from opinions of instructions, courts reviewing may a basis for “an provide extract bemay if the facts inappropriate underlying are different from opinion those Witkin, Trial, presented (7 the new case.” (3d 1985) Cal. Procedure ed. § nonsuit,
Frederickson involved an from a appeal judgment held only that there was sufficient evidence to submit the issue jury whether the police dog was animal. Frederickson does not stand for the rule the should jury given be particular instructions forth the setting specific facts from which an inference of dangerousness may be drawn. Nor should such an instruction have been here. An given instruction which singles out and emphasizes portions of the evidence is argumentative and improper. Plaintiff was in no more entitled to her requested struction than defendants would have been to an instruction that the jury could infer Bandit had no dangerous from the lack of propensity any complaint to the animal control and the department fact certain wit nesses testified Bandit gentle and well The behaved. whether question Bandit had a or dangerous vicious was for the to decide jury based all of the upon evidence. Counsel were free to argue evidence and it, the inferences that could be drawn from but no additional instructions were necessary to assist the its determination dangerousness.
II We address plaintiff’s contention it was error to refuse her preferred instructions. 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: for animal “Except one trespass, who possesses harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject if, to liability for harm done the animal (b) but . . . he only negligent failing prevent harm.”2
The amount of care of a required keeper domestic animal that is not abnormally dangerous is commensurate with the character of the animal. (a) 2The elided imposes liability subdivision keeper on the if he “intentionally causes the to do the harm.” (Rest.2d, f.) com. of such Keepers “domestic animals [which are] the premises class can confined to of their or otherwise keepers *10 under kept constant control without their usefulness . . . seriously affecting are duty under a to reasonable care have them’under a constant exercise to 518, e.) Otherwise, (Rest.2d, and effective control.” “many com. § [such are to harm do substantial while out control.” recognizably likely animals] (Ibid.) hand,
On the other are "certain to unlikely domestic animals so do “[t]here harm if left to themselves and if the incapable so of constant control purpose satisfied, for which is it to them be proper keep they is to that have run traditionally been to This permitted large. dogs, class includes .... it Although is confine their impossible premises to to keepers or to them under keep leash when taken public they into a have been place, traditionally regarded unlikely to do substantial harm allowed to run at large, so that their are not keepers to them under constant required keep However, control. . . . or harborer although possessor dog ... privileged to it large allow to run at and therefore is not to exercise required control, care to it under keep constant he liable if he sees his . . . about to attack a human harm being animal or do to chattels and crops does not exercise (Rest.2d, reasonable care to it from prevent so.” doing 518, com. j.) §
“One keeps who domestic that possesses only those that are propensities normal its class is to know its normal habits required He tendencies. is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under circumstances and particular exercise 518, reasonable care to prevent (Rest.2d, foreseeable harm.” com. § h.)
In determining keeper’s negligence injuries animal, inflicted aby domestic usually criterion is one of adopted i.e., occurrence, reasonable anticipation of the (Hagen foreseeability. v. Laursen, 379, supra, 383; Am.Jur.2d, Animals, see p. 1978)
Endresen v. Allen (Wyo.
Concerning negligence,
reviewing
there was sufficient evidence of
submission to the
justify
finder of the facts the
whether defendants should
reasonably
result
their failure
to secure the
anticipated
injury would
from
properly
(En
and whether
failed
to secure the
they negligently
properly
dog.”
Allen,
1222.)3
dresen
574 P.2d at In Arnold v. Laird
In Ryman (Minn. 1978) v. Alt 266 N.W.2d a plaintiff, guest home, defendant’s by was bitten defendant’s Saint Bernard. The was dog chained near the invited driveway. Defendant to animal. As plaintiff pet at her and her Defendant plaintiff approached, dog leaped bit face. “ was then heard T say, should have rid of this because it bit gotten dog ” me once before.’ Although alleged both strict complaint liability negligence, the court instructed the jury only on strict for harm by with animals known vicious or dangerous Defendant propensities.4 prevailed and plaintiff appealed, asserting (Ryman instructional v. Alt. error. 506.) 266 N.W.2d at p. Ryman
The court held was entitled to plaintiff go also on occasions, “On negligence: several we have recognized cause of action for injuries inflicted aby domestic animal based entirely negligence of upon [j[] the animal’s owner A or-keeper. plaintiff who believes his [Citations.] proof may be adequate negligence establish the animal’s by keeper may also under proceed the common-law scienter The scienter action is theory. 3Although the Endresen court made no mention of Restatement Second section in a suggested later case the negligence court Endresen's discussion of was based on that section. (Williams 1989) (Wyo. v. Johnson 781 P.2d by 4In these circumstances imposes liability irrespective California statute strict of scienter. Civil Code section provides part dog 3342 in relevant that “The of any owner is liable for the damages by any person suffered by public who is bitten while place lawfully a private place, including the property dog, regardless of the owner of the of the former viciousness of the knowledge the owner’s of such viciousness.” once the and the negligence; keeper’s based on animal’s dangerousness scienter are proved, liability injured voluntarily follows unless person knowingly assumed risk of of the gravamen [citations]. tort keeping for which is allowed is of an animal known recovery simply to be vicious. Scienter domestic animals injuries by actions [Citation.] actions, seem many more numerous than because such perhaps while injuries negli- occur the animal’s is not keeper present proof difficult, gence here may pleaded negligence. appropriately [f] [Plaintiff] If proof adequate negligent, may show was [her] [defendant] [she] recover without showing viciousness and scienter. Conversely, may be had recovery proof showing absent had (Italics vicious original. known 266 N.W.2d [defendant].” In Westberry v. Blackwell Ore. defendant’s 75] dog inflicted bite superficial hand her plaintiff’s plaintiff made way into defendant’s As plaintiff house. and after leaving, assured being docile, defendant the dog was the dog severely bit even more on the other hand. Plaintiff sued on theories strict and negligence but *12 nonsuit granted was as to both theories.
On the court there appeal, found the was sufficient evidence to togo jury on the theory Thereafter, of strict liability known dangerous propensity. court, citing Restatement Second section also found sufficient evidence go to the jury negligence:
“Plaintiff’s second cause action alleged defendants were in negligent to confine failing the dog. Failure confine or control such domestic a give can rise to a cause negligence. action “[H]ere, the evidence indicates could have controlled con- [defendant] fined the dog when knew she plaintiff was leaving premises. She knew had bitten on her plaintiff into the way house. Whether a reasonable person the exercise ordinary care would have restrained the is properly a question jury. for the
“The defendants’ for a motion judgment nonsuit involuntary should not have been granted. Viewing the evidence in the most to the light favorable plaintiff, legitimate of fact for the was jury presented, both as to charge strict and the charge (Westberry, negligence.” supra, 76-77, 577 P.2d pp. at omitted.) fn.
In DeRobertis v. 94 N.J. A.2d Randazzo 1260] returned a verdict in favor of plaintiff, child bitten five-year-old
defendant’s was dog. Although judgment grounds, reversed on other court explained both strict and were viable theories of scienter, “If a recovery: plaintiff proves liable for dog-owner absolutely (DeRober- caused injuries characteristic of the dog. . . Randazzo, supra, tis v. 462 A.2d at Restatement Second Citing “If, hand, section the court commented: on the other plaintiff unable to that the owner knew prove or should known of the dog’s characteristics, then the owner is liable is able only plaintiff (Id. prove owner acted negligently keeping dog.” pp. 1266-1267.) Laursen,
In Hagen v. plaintiff injured was when defendants’ dogs against two ran who plaintiff, neighbor visiting was on defendants’ her property, caused to fall and herself. Plaintiff injure sued on theories of general negligence and se negligence per arising from defendants’ alleged violation of a control ordinance. Plaintiff secured a judgment defendants appealed. Defendants’ sole contention on appeal was that the evidence was insufficient as a matter of law to support judgment. On the negligence se held per theory court failed to plaintiff she was prove within the class for whose the ordinance was protection (Id. 386). enacted. at p.
This court also held failed plaintiff to prove general negligence predicated act or any omission of defendants. Defendants’ two were dogs Irish setters, five approximately years old weighing respectively thirty-five and forty-five more pounds, or less. “On the when occasion injured the were frolicking, into the occasionally going road and back *13 other; to their home grounds. They and romped played with each would other, wrestle, run, over, at each jump other, roll to bite each and pretend in the generally indulge antics usual with at Their dogs play. actions were described as the average play No one had seen them dog. run into anyone while playing, before [plaintiff] received her injuries. They were not shown to have been more boisterous than dogs are. There was usually no evidence that these dogs (121 were vicious.” at Cal.App.2d p. well was with the acquainted
“[Plaintiff] and had dogs often observed them at At the play. 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 where she stood conversing [defendants] with a group of which people, included and some relatives [defendant] of The were [plaintiff]. dogs frol- about, icking the women were talking; stood with her [plaintiff] back toward area which the not, were dogs for the moment at and did play therefore, Others, however, see them approaching her. including [defendant]
929 saw the no or did One coming, but one said both dogs anything. perhaps of the while and of dogs frolicking so ran back playing against [plain- knees, her legs sharply at about the to fall to the and causing ground tiffs] to suffer and There a broken and various less serious bruises lacerations. hip (121 was an either nature of attack animal.” at nothing Cal.App.2d p.
After an excursive discussion which strict legal principles governing (121 382-383), negligence and were conflated liability at pp. evidence, law, court of analyzed defendants’ contention that as a matter was insufficient to full charge prove general negligence: “Giving play fact, the rule negligence still usually negligence cannot be here any act or omission of predicated upon ground of [defendant]. here is reasonable anticipation occurrence and reasonable to act. at run opportunity Dogs play rarely against whether stationary objects tree, post person. where are They generally they look and this is going We self-preservation. are unable to see where in the her confronting situation could reasonably be held to anticipate [defendant] playing blindly would run into a of them group knock one down. . . . people Here was misadventure (Id. without . pure . . .” simple 383.)5 indicate,
As the Restatement Second section 518 the cases which, may be predicated the characteristics of the animal although not class, abnormal its create foreseeable risk of harm. As to those charac teristics, the owner duty has a the harm and to anticipate exercise ordinary care (See Laursen, prevent harm. 121 Hagen v. supra, Cal.App.2d at 382-383.) pp. “The common law that the owner an provided [] . but vicious . . which was some prone other potentially behavior, harmful could held liable under a theory any injury proximately caused such behavior. In such cases the owner was if, only liable having knowledge of the particular which created propensities harm, a foreseeable risk of he failed to exercise care in reasonable control of Johnson, (Williams Rest.2d, animal.” P.2d at p. citing 518; 69, 73], Kathren v. § Olenik Ore.App. citing Rest.2d, 518.)
Defendants rely supra, on Hillman v. 44 Garcia-Ruby, Cal.2d for the that proposition there can be no based on liability negligence injury caused a by domestic animal unless has dangerous propen Hillman, sities of which the owner knows or have In should known. 5The (121 court was persuaded 383), “somewhat view” p. at also because if was danger, there plaintiff was as aware of it as defendants and assumed the risk. (Id. 383-384.) pp sidewalk
plaintiff walking along when defendants’ public dog jumped her, on knocked her the ground injured her. The trial court refused plaintiffs requested instruction with known keeper dangerous is under propensities an absolute duty restrain the animal. The court instructed but a duty of care where “a imposed only keeper knows it have (Hillman dangerous Garcia-Ruby, propensities.” 1.) Cal.2d at fn. The p. jury returned a verdict favor of defendants, and plaintiff The appealed. only contention on was that appeal trial court erred refusing (Id. to instruct on strict & liability. p. fn.
The Hillman court held the trial court erred refusing strict instructions but that the error was The harmless. court noted instructions on strict would find knew required jury defendants instructions, dog’s dangerous The propensities. im- given, as Thus, posed same requirement. difference only between strict lia- and the blity negligence instructions to the is that the presented jury former an theory imposes absolute duty to restrain the while the under the duty latter theory requires only exercise of ordinary care. As the evidence was i.e., uncontradicted defendants did nothing whatever to restrain the dog, they care, failed to exercise even the verdict in ordinary favor of defendants indicated the necessarily found the jury had no known Thus, a propensities. result more favorable to would not have have plaintiff been if reached strict (44 had liability instructions been Cal.2d at given.
Hillman does not support defendants’ because on position appeal plaintiff Hillman did not challenge the correctness the negligence which, instructions conditioned given, the existence of a of care on duty defendants’ knowledge of a dangerous of their tendency dog. issue only plaintiff tendered on was the trial appeal court’s refusal to instruct on strict Thus the liability. Hillman court had no occasion to to the speak validity the instructions on negligence and did not do so. case,
In this offered BAJI plaintiff instruction Nos. 3.00 and 3.10 of her support theory defendants were in the negligent care and control of (See refused, ante.) Bandit. fn. The offer was and the case went to the jury only verdict, on strict liability By instructions. special found Bandit jury did not have “a particular vicious or dangerous Since the propensity!)]” evidence was uncontradicted that Bandit jumped knocked down, her verdict special implies found either such conduct was or, latter, even dangerous, was Bandit. If the atypical jury presumably found plaintiff did not her carry burden of proving *15 is, conduct, Bandit had a “a natural inclination” or such that (Webster’s an tendency” “innate or inherent Third New Dict. Internat. 1817) to act he p. as did. jury found Bandit had no Although dangerous propensity, vicious that did not finding resolve the tendered by plaintiff’s Plaintiff complaint. defendants . . . failed to . . . alleged “negligently Thus, control” Bandit. there were issues Bandit risk whether a of harm posed others; so, foreseeable; whether that risk was and if whether reasonably defendants failed to exercise care ordinary controlling to avert risk by Bandit. Laursen,
Unlike Hagen supra, where the dogs’ conduct prompted court to observe that “dogs at run into whether play rarely stationary objects tree, (121 383), post person” facts here us to prompt Rest.2d, observe that it is not unknown for dogs to on see jump people. (E.g., Thus, i.) com. it may reasonably that a which has anticipated jumped on before do it people again, will whereas it is reasonable to not has, reason, suppose that a run whatever an into immovable Thus, will have object not been discouraged from that conduct. we repeating cannot say as matter of law that no could jury reasonable find defendants could not have anticipated either event or harm that Plaintiff resulted. presented evidence that defendant Dean Bandit knew “had a of jump- habit ing on from which people,” an inference be drawn could that such conduct And, indicated, was reasonably foreseeable. as we have verdict special does not exclude necessarily possibility jury credited that evidence.
Moreover, even though jury found on not to be a jumping people we propensity, say cannot that a which exonerated Bandit of jury vicious or propensity, instructed negligence, would neces- have sarily found that Bandit’s conduct not harmful even potentially Instead, did though it jury as regard dangerous. vicious or the jury may have regarded Bandit’s conduct as playful or an perhaps manifesting unrestrained friendliness and thus been disinclined to characterize it as vicious or dangerous. breach,
The evidence also presented question for the on the issue i.e., defendants, harm, whether knowing Bandit’s to do exercised potential care to avert ordinary that harm by him. adequately controlling Although leash, Bandit was radius of the him gave tether to defend- access ants’ on which driveway visitors defendants’ house approached.
932
We conclude the trial in the refusing court erred to instruct prejudicially on jury negligence unalloyed with strict liability.6 instructions, We that in the acknowledge refusing standard negligence Laursen, Hagen trial court was led into error this court’s in v. by decision Laursen, supra. We Hagen we disagree do not with the nor do holding v. fault the Hagen the extent it the law of analysis negligence court’s to applied However, (121 383-386.) to the facts of the case. at the Cal.App.2d pp. Hagen (id. 382-383) court also discussed strict at and cited cases liability pp. in which in in liability strict was issue whereas the before it there was case no issue of strict liability Although the discussion was unneces presented. dicta, the sary holding to court’s and therefore presence its a case involving only negligence that very strongly implies of strict principles there are liability discussed an action To the applicable negligence. for Hagen extent it implies, so is overruled.7 mistakenly 6The majority position, obviously dissent ascribes to unsupportable law, characteristics, dogs, that it is that regardless prior “foreseeable their will to react added, strangers coming way.” (Italics on their owners’ property in and harmful opn., post, dis. at p. dissenting justice then mistakenly majority taxes with “misapprehension peaceful dog that owners of a are liable the animal causes person some to a and prevented they the owners could have the harm had added, (Italics confined or dog.” opn., post, controlled the dis. at We acknowledge is spurn that man’s best friend and have no desire to betray friendship to design nor hold his for acting master liable conduct of the act, i.e., Moreover, characteristically commonly and peacefully harmlessly. we acknowl- edge that the any owner is liable in harmful conduct of his that was not Here, however, reasonably foreseeable. was there evidence from which a instructed on negligence could found reasonably Bandit’s conduct was harmful and foreseeable and ordinary defendants did not exercise in so controlling care Bandit as to avert his known potential to cause harm. successor, Hagen 7The rely court relied of Torts Restatement whereas we its (See (1939) Restatement Security-First Second. v. National Bank 13 Cal.2d 30-31 Canfield 830]; Scholey P.2d (1943) 733].) v. Steele [87 We are constrained to note that former governing negligence section 518 of Restatement of Torts by for harm done domestic abnormally dangerous animals which are not underwent significant change in the Restatement We quote parts Second. relevant section 518 Restatement, at page Restatement Second ante. Former section 518 of The in effect Laursen, decided, Hagen “(1) when reads Except as follows: as stated in 504-5, (2) animal, Subsection possesses one who harbors domestic which he does §§ not have reason to to be abnormally likely know but to do which is harm unless controlled, if, if, subject by (a) for harm done such only animal but he fails [][] it, (b) exercise care to reasonable confine or otherwise control the harm is of a sort [][] [j[] (2) it is animals possessor normal for of its class to do. A or harborer of a domestic which, confine, unlikely because it is of a class do harm and difficult he
privileged to run at large, allow to and which he does not have reason to know to be abnormally dangerous, is not any large.” liable for done barm it while Note that under subsection keeper former section 518 a which is not abnormally dangerous “is not liable any large.” harm done This exception it while at
III
remand, we address plain
and counsel on
of court
For the benefit
to be
Hightower
the witness
allowing
erred
the trial court
tiffs contention
Jehovah’s
as a fellow
her status
to whether
regard
with
cross-examined
Plaintiff
her in favor of plaintiff.
faith
of her
biased
Witness or some tenet
.
“Evidence of.
.
789 which states:
Evidence Code section
authority
cites as
attack or support
is inadmissible
lack thereof
belief or
religious
two reasons.
fails for
Plaintiffs claim
of a witness.”
credibility
First,
the trial court
789 to
Evidence Code section
argue
did not
plaintiff
of Hightower.
to defendants’ cross-examination
objection
for her
as a basis
either
into
any inquiry
restrict
had
in limine to
to trial
moved
Prior
raise Evidence
did not then
Plaintiff
beliefs.
Hightower’s religious
her or
Moreover,
trial court
for her motion.
as the basis
Code section 789
at trial.
point
the appropriate
the in limine motion to
deferred decision on
limited
ruled a
the court
testimony,
during Hightower’s
When the issue arose
objection
Plaintiffs sole
permitted.
on the issue of bias would be
inquiry
was
“vague
the defense
asked
question
that
was that a particular
point
Code
on Evidence
based
objection
Because there was no
ambiguous.”
Code,
(Evid.
on appeal.
that issue has been waived
section
not preclude
789 does
Evidence Code section
important,
Equally
law
existing
codifies
simply
made
the defense. This section
inquiry
P.
liablity appear does not in current section 518. No consequent diminished tolerance urban with society largely predominantly from rural our for unconfined domestic animals. Today, the SPARKS, J., Dissenting. majority holds that the owners of a vicious or previously dangerous are liable negligence for failing to control the animal because it is foreseeable that such a will jump up people knock them down. This I greatly, think mistakenly, expands dog owners California. it,
As the majority sees “[although the jury found Bandit had no vicious or dangerous propensity, did finding not resolve the negli- *18 ante, gence tendered by plaintiff’s complaint.” (Maj. at the opn., p. To contrary, because, that did finding resolve the question of negligence as we see, shall absent such a propensity the had owners no to control or duty confine their dog. By drawing an untenable distinction between which are dangerous on the one hand and those which a foreseeable risk of pose other, harm on the the majority has the transmogrified of legal duty a into factual issue for the jury. This unwarranted distinction lies at the heart task,
of the majority’s misperception of the element of It is our and not duty. the jury’s, to determine if the defendants had a duty constantly to confine or law, control their Under the dog. any propensity dog might cause harm foreseeably whether that people, arises from an tendency unrestrained friendliness at one end the of or from a spectrum vicious other, care, at the proclivity the imposes owners a upon duty use reasonble provided only that the owners knew or have should known of that propen- because, sity. law, This arises in duty the such eyes is deemed But if dangerous.1 the dog is neither vicious nor then dangerous, the law imposes Here, no the duty on owners to control or confine their the dog. found expressly that the dog was neither vicious nor dangerous and hence inferentially found that the dog was docile. peaceful and we Consequently, (as say should numerous courts us) have said before that as a matter of law it is not foreseeable that a docile will harm cause people vicious, absence of some knowledge of dangerous or abnormal character- istic of the dog or the absence of some negligent mishandling of the dog reason, by its considerations, owners. For this together with other policy law imposes no duty upon owners of a docile dog to confine or control their constantly pet. 1It is no answer to suggest legal technical dangerousness definition of in a domestic animal is at odds with the understanding common of the term and jury may that “the regarded Bandit’s conduct playful as or perhaps manifesting an unrestrained friendliness and thus have been ante, disinclined to characterize it as dangerous.” vicious or (Maj. opn., Plaintiff did request any not clarifying such explaining “[a]ny instruction that animal, part on the of a domestic likely which is beings to cause to human under the him, circumstances in which party controlling the animal places dangeorus is a or vicious propensity within meaning (Talizin of the law.” Riding Oak Creek Club Cal.Rptr. 878].) Having 80 A.L.R.2d failed to instruction,
request such an plaintiff jury’s finding cannot now claim that the nondanger of ousness disregarded. must be an of was I that a form Although agree majority with case, on to instruct refusing the error theory recovery alternate harmless event was rendered by any waived theory verdict. jury’s special by between distinguishes law general
It has been noted that common “[i]n their for imposing wild and domesticated animals purpose animal is law an or of wild keeper Under the common owner owners. animal, inflicted absolutely regardless liable such injuries contributory negligence his any negligence part absence of or animal which while an owner or of a domesticated injured, keeper person cat, mankind, subject such as a is not naturally dangerous reason to for harm the animal if he does not know have done However, when the owner or abnormally know that animal is dangerous. has a or has to know the animal or cat knows reason keeper class, the wild to its the animal into dangerous propensity passes abnormal inflicted category, injuries owner liable strictly its becomes *19 the known particular dangerous the animal which result from by propensity him, care the even the the utmost to prevent to owner exercised though (Annot., Owner of animal from the harm.” doing Liability Operator (1989) Cat to Patron 67 A.L.R.4th Injury by Dog Business Premises for 976, 985, omitted.) and fns. citations
For the most and the Second of Torts follow part, California2 Restatement recounts, in Cali- majority this common law the liability. As imposition when causes fornia an owner a is liable the dog without and the the injury danger- owner knew or should have known of vicious or (Hillman the v. propensity injury. Garcia-Ruby ous which caused In 1033].) Cal.2d the Second the words of Restatement Torts, he to possessor of a domestic animal that knows or has reason “[a] class, has is dangerous subject know abnormal to its to propensities another, for harm done the animal to he has the utmost by although exercised Torts, 509, (1).) it (Rest.2d care to the subd. prevent doing from harm.” § A also need not vicious one. “The rule is dangerous be a propensity if is the vicious dangerous tendency animal is not but has applicable are unusual and not the for which such animals necessary for purposes Thus, he who knows to be accus- usually kept. keeps one large rule tomed to fawn children is liable under the violently and adults upon states, “dog many 2As is the case statute which with California has enacted bite” by necessity proving scienter supersedes dispensing law rule with the common Code, (Civ. requirement. not plaintiff, Because in this case did bite the § imposes by any statute bitten liability only damages person since this “for the suffered who is Code, dog” (Civ. (a)), by the subd. it here. application no has § [i.e., in stated Section for harm done its strictly liable] Torts, playfulness (Rest.2d or over-demonstrative affection. . . § c.) com. knows that his has the Consequently, possessor playful “[i]f visitors, habit of will up he be liable when jumping without visitor, (Rest.2d on a him down his dog jumps knocks and breaks hip.” Torts, 509, i.) Once com. the law of accord with the again, § California The Restatement. is not to “a propensity propensity limited animal, attack beings. human on the Any of a domestic propensity part which is to cause likely beings to human under the circumstances him, which the the animal party controlling places is a or vicious (Talizin wilhin law.” Oak meaning Riding Creek Club, supra, 176 hand,
On if the other (such owner of domestic animal as a dog) does know, know, not or have reason animal is vicious or abnormally Restatement, he liable dangerous, he only negligent. Under if, such a case the owner “is for harm the animal subject done if, but (Rest.2d . . . he is only negligent failing to the harm.” prevent Torts, 518, (b).) The subd. amount of care commensurate with required § “is Torts, 518, (Rest.2d f.) character of animal.” “In determining com. § the care that the keeper domestic animal is abnormally dangerous control, required exercise to it under are keep characteristics that decisive, normal to its class are and one who the animal is keeps required Torts, 518, (Rest.2d know the characteristics. . . .” com. g.) keeper “is therefore to realize that even are required ordinarily gentle animals likely *20 to be under particular circumstances and to exercise reasonable care to foreseeable the prevent harm. Thus of even a bull keeper gentle must take the into account tendencies of bulls as a class to attack moving objects and must greater exercise to under precautions his bull keep complete Torts, 518, control if he it (Rest.2d drives upon public highway.” com. § h.) Restatement, Under the certain classes of domestic animals “can be confined to the premises of their under keepers kept otherwise constant control without seriously their usefulness and which are not affecting abnor- mally dangerous. Although the of these animals is sufficient to utility justify their 590, being without risk strict kept stated of many § and, them are recognizably to do substantial harm while out of likely control therefore, their are keepers duty under a to exercise reasonable care to have Torts, 518, them (Rest.2d under a constant effective control. . . .” § however, e.) com. Dogs, are not within this class of domestic animals. rule, Under the Restatement’s confined do not have to be or con- dogs stantly under control. “There kept are certain domestic animals so to unlikely do harm if left to themselves and so control the incapable of constant
937 satisfied, they which it them is to be keep is to proper purpose .. dogs, run at This includes . large. been to class traditionally permitted keepers of their it is not to confine to impossible premises Although have been they under leash when taken into a public place, or to them keep run if allowed to to do substantial harm traditionally regarded unlikely constant to them under keepers so that their are not large, required keep Torts, 518, (Rest.2d j.) control.” com. § which is not vicious from this the owners of a
It follows it under confine their or to keep have no abnormally duty pet for the failure Absent such a there can no duty, constant control. (1981) 123 (Nava or maintain v. McMillan dog. control 262, 473].) of action “The threshold element of a cause Cal.Rptr. 265 [176 an interest of is the existence of a to use care toward duty (Bily legal another that unintentional invasion.” enjoys protection against (1992) & Co. 834 P.2d Young Arthur 3 Cal.4th Cal.Rptr.2d [11 745].) (1986) 41 high As the court clear in Ballard v. Cal.3d made Uribe 624], decided Cal.Rptr. ‘duty’ of “[t]he court, not the As not an immutable jury. ‘duty’ this court has explained, nature, fact of but an only of sum total of those considerations expression of which lead the that the is entitled to policy say particular law to plaintiff California, In duty rule is that all have a protection. general persons care their ordinary use others as the result of prevent being injured ; (Rowland conduct. . . . 112 ... Civ. v. Christian 69 Cal.2d considerations, Code, however, 1714.) Rowland enumerates number taken that have been into account courts contexts to determine various from departure major whether rule is general appropriate: [consid are foreseeability harm to the plaintiff, degree certainty erations] suffered injury, the closeness of the connection between suffered, defendant’s conduct and the the defend moral blame to conduct, harm, ant’s future the extent of the burden policy preventing to the defendant and a duty to the consequences community imposing *21 breach, cost, care with exercise resulting liability availability, and the and of of foreseeability insurance for the risk The a prevalence involved. calculus, kind of harm in but particular this a plays very significant role particular court’s task—in determining ‘duty’—is not decide whether in plaintiff’s injury was defend reasonably light particular foreseeable conduct, rather ant’s but evaluate more the of category whether generally conduct at issue negligent sufficiently is to result in the kind harm
likely experienced liability may of that appropri 572-573, 6, (Id. ately be the imposed negligent at fn. some party.”3 pp. sum, omitted, and in quotation citations internal marks In original.) italics in in contexts is a fact the many foreseeability “[w]hile of question jury, of defining boundaries is a of law for duty, foreseeability 510, (Scott (1992) the court.” v. Chevron U.S.A. 5 Cal.App.4th 516 [6 810].) Cal.Rptr.2d
The California authorities and the Restatement
as a
dogs
treat
“domestic
animal,” that
“an animal
is
that
custom
to the service of
by
is
devoted
Torts,
(Rest.2d
mankind at
and in
in
the time
which it
place
kept.”
is
(2).) Dogs “have
time
been
regarded
subd.
from
immemorial
as
§
harmless,
and
friends
of
The
companions
great
dogs
man.
are
majority
and the possession of
characteristics
to mankind ...
is properly
Torts, 509,
regarded
(Rest.2d
f.)
as abnormal to them.”
It
therefore
com.
is
not foreseeable under the law
that such “harmless” animal “devoted to
service of
will
in
mankind”
cause harm to
suddenly
absence
people
actual or imputed knowledge
of some
or vicious characteristic of
in
dog. As we
Hagen
(1953)
noted
v. Laursen
939 instance, 262, 266, the held this particular where Cal.App.3d court “[i]n the mere of could foresee that the reasonably appearance defendants on the fence cause who was barking plaintiff, at the or their dogs might fence, to run into the street of and frightened side the to become public was automobile.” by where she struck an subsequently Cal.2d the v. Christian Examining factors set forth Rowland 496], whether to determine 443 P.2d A.L.R.3d Cal.Rptr. 108 [70 exists, went “Our on the Nava court on to state: conclusion duty of certainty of to the factors of unforeseeability harm this case also applies the defendant’s conduct and closeness of the connection between injury Also, dog moral attached to defendant suffered. no blame can be by here as surrounded dogs completely owners they kept premises link community chain Needless to say, consequences upon fencing. would be unreasonable: imposing duty suggested by plaintiff totally of as in effect be friend’ dog keep owner would to man’s best required where by it neither be seen heard members of the place public could nor short, In offends by. sought to be passing duty imposed plaintiff same consider- (123 common sense.” These policy p. with at home. dog ations force to a harmless apply previously kept equal course, like Of it confined in cages would be to be possible dogs require animals, very wild but that would frustrate the for completely purpose it, a pet are As the Nava court kept accurately put “[k]eeping pets. constitu- dog is one of the most cherished forms which the undoubtedly To most tionally protected right personal to own exercised. property it is more than once ownership than mere More people personal property. recognized courts have that the ‘is such an keeping pets important of such life,’ our way . . . have sentimental part recognized perhaps . . strong dog. but nonetheless mankind for the . universally affection of The status of the Unlike a grizzly as ‘man’s best friend’ remains .... bear, animal, which is a wild and is a domesticated whose occasional in homes is to be neighborhoods expected.” presence reasons, (123 omitted.) all of Cal.App.3d at citations For these policy it would be for wholly inappropriate impose them. control peaceful dogs failing constantly owners confine or gentle Since it is and harmless not foreseeable that a generally previously him, attack a in order will human jumping upon either to theory this case on a she prevail required knew that the dog’s establish owners or should known harm home visiting risk of owners’ presented particular persons of its the defendants mishandled because or that propensities, *23 940
dog at the time of the incident. As the cited annotation recounts owners, context of business drawback to on a proceeding negligence “[t]he theory order to prevail, injured must show that the person business owner or operator knew or had reason to know that the animal presented danger (Annot., safety of his patrons.” Liability of Owner Cat, or Operator of Business Premises for Injury supra, to Patron by Dog 976, 988, Thus, 67 A.L.R.4th omitted.) citation “if the animal to be appears , harmless . . then . the injured patron generally has no basis for recovery.” (Ibid.) This is true outside equally context and business consequently the same rule to the applies owners of a dog at home. kept course,
Of if the owners know or should have known that their dog characteristic, possessed a dangerous propensity or would abnormality, they then be liable negligence for their failure to use reasonable care to prevent (See, this foreseeable harm. e.g., (1975) Uccello v. 44 Laudenslayer 504, 741, Indeed, Cal.App.3d 511-514 628].) 81 A.L.R.3d Cal.Rptr. [118 most of the out-of-state cases relied upon by majority are of this ilk.
These sister jurisdiction cases of
all involved
would be classified
under California law.
theAs
court correctly
922,
explained
923,
Williams v.
1989)
Johnson (Wyo.
781 P.2d
“[t]he
common law also
provided
owner of an animal which was not
vicious,
vicious or not known to be
but which was prone to some other
potentially harmful behavior could
held
liable under a theory of negli
gence for any injury proximately caused
such
In
behavior.
such cases the
if,
owner was only liable
having knowledge of the particular propensities
harm,
which created a forseeable risk of
he failed to exercise reasonable care
in his
(See
control of the animal. . . .”
also
(1983)
DeRobertis v. Randazzo
144
92 N.J.
A.2d
of an
[462
abnormally dangerous dog
1267] [“owner
owes a
duty
care to an infant trespasser”];
(1980)
Arnold v. Laird
94
Wn.2d 867
P.2d
[621
[“only alleged negligence demonstrated
141]
plaintiffs
confined to claimed deficiences in maintenance and control
which allegedly
animal”];
resulted in a dangerous
Endresen v. Allen (Wyo.
1978)
Similarly, owners would be liable they carelessly animal, mishandled the (See, whatever its character. e.g., Barnett v. La Mesa Post No. 282 650]; Cal.2d 194-195 v. Oak Talizin Club, Creek Riding 437-438; Baley v. J. F. pp. *24 349]; v. Baugh P.2d 108 (1955) 133 Cal.App.2d [283 & Son Hink 671].) 790-791 91 Beatty Cal.App.2d 1978) (Minn. Ryman in v. Alt the court’s decision This was the basis for in be liable the owner could held that Ryman The court N.W.2d 504. 266 occasions, recog we have “On mishandling dog. its several negligence animal based a domestic by inflicted injuries a of action for nized cause (Id. at p. keeper.” owner or of the animal’s entirely upon negligence (which the owner There, had bit dog Bernard held his Saint the owner The dog the dog. child to pet and invited a once), good he had a saying grip, here appropriately pleaded child. “Plaintiffs and attacked the broke loose negligent, to show owner] If their is adequate [the negligence. proof and scient dog viciousness showing recover without may they (Ibid.) . .” er. . in negligence about imposing
There is nothing extraordinary in Thus, for negligence also be liable may animals. mishandling person “[a] negli liable for and be dangerous[,] may an animal known to be handling vicious, vicious, or, known if is not in an animal gence handling Club, at pp. (Talizin Cal.App.2d Riding v. Oak Creek to be so.” case, case, 437-438, did not omitted.) like the citations But this Talizin incident, time animal. At the of a domestic mishandling involve handling their and were not defendants were inside home apparently horse, “the a involving in a case at all. As the court explained Talizin handled, in but the animal was was not the manner which negligence exhibition, ridden aby even when him at a public to be permitting jumped, defendants knew or should rider. can negligence only skilled This that it had.” had the dangerous propensity have known . . . that horse (Ibid.) case was this only dog’s dangerous propensity evidence about the and, her cause to fall
that it with such force as to on jumped up plaintiff version, the dog the defendant admitted according plaintiffs disputed it evidence was Although disputed, “had a people.” habit of jumping known, thus entitle dangerous propensity was sufficient to establish well as as theory negligence to the on a jury to submit case different than theory negligence conceptually strict liability.4 Although the two theories overlap the case of docile liability, strict noted, dogs possessing between majority 4As we have draws an untenable distinction to others. pose otherwise risk of harm dangerous propensities vicious or and those which seen, likely to cause any propensity of a which is already But as we have California treats Club, (Talizin Riding supra, Creek Oak people propensity. harm to If, might have found under majority postulates, jury as the jump would on visitors anticipated could have their circumstances that defendants But here the trial court offered the case to the significant part. to present evidence, under theory established only namely defendants knew or should have known the habit of jumping had a and failed to take this foreseeable people precautions reasonable to avert (7th harm. The thus offered BAJI ed. modify court No. 3.10 1986 bound care, vol.), defining ordinary the standard instruction *25 the where knew or limiting its to situation defendants should application .5 view, the In known of of the this dangerous tendency dog my modification reflected the law in California under the proposed correctly facts It settled a by plaintiff. may established is that judge modify “[t]he to requested instruction make it to the case to correct defects applicable Witkin, Trial, 247, (7 1985) (3d content or Procedure form.” Cal. ed. refusal waived Plaintiff’s to a correct claim of accept any instruction instructional error. law
Although plaintiffs acknowledged may counsel that “the case that say you can’t somebody sue there is a he never- dangerous unless propensity,” offer, theless declined he be he stating thought the court’s it to “bad law.” As it, that, saw “when in their like put dogs yard they out front should people react, know that a do stranger whenever comes that is to up, dog going may “I something.” his counsel it am Summarizing position, way: saying put me; the case law is all But if probably against right. appeal, for purpose me, I you rule think a against want to I that a that is say person injured by maintained, that dog whether is a negligently dangerous or not there shown, fjfl should sue. the propensity Okay? may be able to Now case law that, me against but we have evidence now that a maintaining dog like your front I yard strangers, is—he’s to react to and think going that’s and I negligence, think there should be like something that.”
This contention trial that a need not be shown was dangerous propensity at odds with the way her cause of She plaintiff pled negligence. action down, knock chargeable knowledge them the dangerous then defendants were with of the dog. Liability in this scenario would then flow from owners’ failure to reasonable steps prevent dangerous take to the forseeable from their harm dog. But found was not there was and thus no basis for imposing a duty upon the owners. person conduct exceptionally stances similar ordinary or ordinary prudence do, 5BAJI No. 3.10 reads: under circumstances would not we set reasonable skillful up do, those shown would or the one, care. similar to those “Negligence use in standard is not but a failure to do [1] person order to avoid Ordinary is the evidence, of reasonable and something shown doing reasonable injury extraordinarily [f] [You which a something to evidence. themselves care is that ordinary prudence.]” reasonably prudent person will note cautious which [j[] or others under care It is the individual, reasonably prudent which person failure to use persons circum nor the whose would maintain or control . failed to . . “negligently that defendants alleged knew, them, defendants, inor and each large dog, certain did, known, in fact would and should have diligence of reasonable exercise the plain- limited to but not including grievously injure persons, attack and event, he tiff, implicitly when is mistaken In counsel for any . . their characteris- dogs, regardless prior it foreseeable that asserts that tics, in a their owners’ property react strangers coming will claim, the major- regrettably adopted by exaggerated and harmful This way. the misappre- labors under majority in law. has no basis ity, Apparently, are liable a peaceful hension that owners of could have prevented and the owners animal causes some person Hence, if runs up dog. controlled the they the harm had confined or causing in the mailman’s feet entangled the mailman becomes greet fall, that a dog it is foreseeable him owners are liable because *26 if the barks reasoning, dog under the feet of might get By parity of visitors. fall, the are liable once causing owners loudly, startling visitor line reasoning that a will bark. This of because it is foreseeable again in California and the law previous inconsistent with the Restatement wholly odds view is at rejected. “totally to be The mistaken ought majority’s between the with the which strike a reasonable balance present standards security lawful their owners and the enjoyment personal pets (Nava McMillan, others.”
If did a dangerous propen- not rest plaintiff’s theory negligence upon noted, ordinary did I have sity, negligence what defendants’ consist of? As Thus, the failure do not have to control. dogs be confined constant kept case cannot add up to confine or control this constantly course, under do so. Of negligence duty because defendants were no attack owner would be liable he “sees his . . . about to it a human . . . and care to from being prevent does not exercise reasonable Torts, (Rest.2d But that this case. doing j.) so.” com. is not § dog, So if the to confine or control their duty constantly owners no whence their foreseeabil- negligence? majority says springs are not to foresee ity expected but that cannot be the case because owners that their have some reason to they will cause unless people that the dog know the animal is And the found dangerous. jury expressly verdict, answered this jury case was not In a dangerous. special Bandit, in the “Did the have a vicious or negative: dog, particular the injury]?” date of dangerous August before propensity [the answer, it need not Because was instructed that negative jury of this have reason to next “Did the know or answer the question, [defendants] dog, Bandit?” know of the vicious or particular Owners, needless to say, cannot be chargeable with knowledge propen- sity that does not exist.
Because the found did not have any such propensity, owners, there was no harm to foresee and the in the words of the Restatement, were not “negligent (Rest.2d failing the harm.” prevent Torts, 518, Thus, (b).) subd. any conceivable error failing from to instruct rendered harmless jury’s verdict. special
I would therefore affirm the judgment. Respondents’ petition for review by the Supreme Court was denied July 22, 1993.