"Vicious Propensities" with Respect to Establishing Negligence and Defenses to Dog Bite Claims and "Harboring a Dangerous Animal" as it Relates to Property Owner Exposure for Animals (Dogs) Owned/Kept on Property by Tenants.
To recover in strict liability in tort for personal injuries caused by a dog, a plaintiff must establish that the dog had VICIOUS PROPENSITIES, and that the owner KNEW or should have known of these vicious propensities. Evidence tending to demonstrate vicious propensities includes evidence of prior attack; tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and if the dog was kept as a guard dog. Ioveno v. Schwartz, 139 A.D.3d 297 (2nd Dept. 2016). In Ioveno, it was held that a minor child bitten by a dog could not establish a strict liability personal injury claim against the dog’s owners. He had previously been a guest on about ten occasions without incident. Even if the dog previously barked at people or growled at strangers, there was no evidence the dog had bitten anyone, or exhibited aggressive behavior, or had been trained to guard the home. If a dog is trained to guard, that may be a claims and underwriting issue.
To recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had VICIOUS PROPENSITIES, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. Evidence tending to prove that a dog has vicious propensities, for purposes of landowner liability, includes prior attack; the dog's tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and a proclivity to act in any way that puts others at risk of harm. Kraycer v. Fowler St., LLC, 147 A.D.3d 1038 (2nd Dept. 2017). See also, Scheidt v. Oberg, 65 A.D.3d 740 (3rd Dept. 2018) (holding that dog owners did not know, nor should they have known, of vicious propensities of the dog because they had never known the dog to exhibit aggressive behavior, nor had anyone complained to them about its behavior). Landlord’s knowledge about the dog and its characteristics is the controlling element.
The State Legislature has essentially imposed strict liability upon dog owners. The statute, passed in 2009, provides that: “The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.” N.J.S.A. 4:19–16. This statute considerably EXPANDS potential liability beyond traditional common law.
However, the statute is inapplicable to establish liability of a landlord who is not the dog's owner. Under New Jersey common law “. . . a landlord is not responsible for injuries caused by its tenant's dog. However, a landlord is under a common law duty to exercise reasonable care to guard against foreseeable dangers arising from the use of the leased premises. Therefore, a landlord's duty to protect a tenant or the tenant's invitees could arise with respect to a tenant's dog if the landlord knew the dog was on the property and had “vicious propensities.” Casatelli ex rel. Casatelli v Dressler, 2011 WL 2518857 (N.J. App. Div. June 27, 2011). In New Jersey, landlord liability still rests on the traditional common law “vicious propensities” doctrine.
California’s Civil Code Section 3342(a) has essentially imposed strict liability upon dog owners. Section 3342(a) provides 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, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.” Cal. Civ. Code § 3342 (West).
A landlord owes a duty of care to his tenant's invitees to prevent injury from the tenant's vicious dog when the landlord has “ACTUAL KNOWLEDGE” of the dog's vicious nature in time to protect against the dangerous condition on his property. Actual knowledge, and not mere constructive knowledge of a dangerous animal on the premises, is required to impose a duty of care on a landlord. A landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant's dangerous animal. Only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.
A landlord's ACTUAL KNOWLEDGE of the dangerous propensities of an animal on rented premises may be shown not only by direct evidence, but also by circumstantial evidence. Actual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture. Only when the landlord “must have known,” and not when he “should have known,” will any inference of actual knowledge be permitted. Yuzon v. Collins, (2004) 116 Cal.App.4th 149 (10 Cal.Rptr.3d 18) (holding that landlord had no actual knowledge of dangerous propensities of tenants' dog, and thus owed no duty of care to dog bite victim as matter of law; dog had engaged in normal canine behaviors). California appears to hew to traditional common law notions of knowledge of vicious propensities with respect to landlord liability.
In order to recover under the Illinois Animal Control Act, which was passed in 1949, the plaintiff must prove four elements: (1) an injury caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. IL ST CH 8 ¶ 366. This statue appears to impose greater than traditional common law tort liability from a claims and underwriting perspective.
The owner of a dog that has shown a disposition to bite or attack can no longer rely on the dog being harmless. It is not the law that an owner must have notice of an “unjustifiable biting” if he has knowledge of attacks upon persons sufficient to put him upon notice of vicious propensities. It is sufficient that he knew that the dog would likely inflict an injury similar to the one complained of. Extra care taken by an owner to confine a dog could establish knowledge. However, it is not dispositive, especially where the owner equally confined nonaggressive dogs. Breed or type of dog has been deemed irrelevant to the inquiry. Schmit v. Metcalf, 2017 IL App (2d) 151040-U.
Absent evidence of a dog's vicious propensities, the dog is presumed to be tame, docile, and harmless. Therefore, the plaintiff needs to show that defendant knew or had reason to know the dog would be dangerous. A duty of care arises when a landlord has actual knowledge of the presence of the dangerous animal, and when he has the right to remove the animal by retaking possession of the premises. Sedlacek v. Belmonte Properties, LLC, 2014 Ill. App (2d) 130969 (App. Ct. 2014). Landlord liability essentially appears to follow traditional common law tests.
Martin v. Hayduk, 91 N.E.3d 601 (Ind. Ct. App. 2017): Common law presumes that all dogs, regardless of breed or size, are harmless, but this presumption can be overcome by evidence of known vicious or dangerous propensity of the particular dog. Vicious propensity is therefore a “REBUTTABLE PRESUMPTION” of the assumption the dog is not dangerous.
The owner or keeper of a dog who knows of vicious propensity is required to use reasonable care to prevent the animal from causing injury. Whether the owner or keeper of the animal is aware of any vicious propensity, the legal description of the duty owed is the same, namely reasonable care under the circumstances. Id.
In order to prevail against a landowner for the acts of a tenant's dog, the plaintiff must demonstrate that the landowner retained control over the property, and had ACTUAL KNOWLEDGE that the dog had dangerous propensities. Morehead v. Deitrich, 932 N.E.2d 1272 (Ind. Ct. App. 2010) (holding landlord did not owe a duty to postal carrier to keep tenant's dog from biting postal carrier absent landlord's control over the property, even if landlord knew of dog's vicious propensities at the time he entered into lease agreement) The general rule is that possession and control of the property determines a landlord's liability. It is the duty of the owner and the keeper of an animal to keep it confined, and mere ownership of land from which an animal strays is not sufficient to make a landowner liable for harm caused by the animal, so long as the landowner himself is not the owner/keeper of such animal. Indiana liability follows fairly traditional common law analysis from a claims and underwriting perspective.