Drake v. Dean
15 Cal. App. 4th 915, 93 Cal. Daily Op. Serv. 3453, 19 Cal. Rptr. 2d 325 (1993)
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Rule of Law:
The owner of a domestic animal, even one not known to be abnormally dangerous, may be held liable under a theory of general negligence for harm caused by the animal if the owner fails to exercise reasonable care to prevent foreseeable harm, regardless of whether the animal has a known dangerous propensity abnormal to its class.
Facts:
- Donna L. Tower and Judy Hightower, both members of the Jehovah’s Witnesses Congregation, were going house-to-house engaged in their ministry.
- As Tower and Hightower walked along the driveway toward Robert Dean and others' house, Hightower noticed the Deans' dog, Bandit, a 65-pound American Staffordshire Terrier (pit bull), sitting near the house.
- Bandit, leashed to a chain attached to a 100-foot guy wire, had access to the front yard and driveway.
- Bandit ran, jumped on Tower, and knocked her to the ground.
- Tower suffered a broken hip and lacerations to her head from striking rocks.
- Tower testified she had no indication of Bandit's presence before entering the property, and there was no fence or signs advising of a dog or warning against solicitation.
- After the incident, Hightower stated that Robert Dean told her Bandit “had a habit of jumping on people,” a statement Dean denied making.
Procedural Posture:
- Donna L. Tower filed an action in the trial court against Robert Dean et al. to recover for personal injuries sustained when she was injured by their dog.
- Tower's complaint alleged two counts: strict liability and negligence.
- The trial court, relying on prior dicta in Hagen v. Laursen, indicated it would modify standard negligence instructions to require knowledge of a dangerous propensity, effectively merging negligence with strict liability.
- Given the choice of modified negligence instructions or no negligence instructions, Tower chose the latter, and the matter was submitted to the jury solely on the theory of strict liability.
- A jury returned a special verdict finding that Bandit did not have 'a particular vicious or dangerous propensity,' and judgment was entered for defendants.
- Plaintiff Donna L. Tower appealed the judgment to the California Court of Appeal, Third Appellate District, contending that the trial court erred in admitting certain evidence and in refusing to give certain jury instructions, including standard negligence instructions.
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Issue:
Did the trial court err by refusing to instruct the jury on general negligence principles, unconditioned by the requirement of the owner's knowledge of the animal's dangerous propensities, in a case alleging harm caused by a domestic animal?
Opinions:
Majority - Puglia, P. J.
Yes, the trial court erred by refusing to instruct the jury on general negligence principles unalloyed with legal criteria applicable to strict liability. California common law recognizes both strict liability and negligence as distinct legal theories for harm caused by domestic animals. Strict liability applies when an owner knows of an animal's 'dangerous propensities abnormal to its class,' imposing absolute liability. Negligence, however, applies to harm caused by domestic animals that are not abnormally dangerous, where the owner fails to exercise reasonable care to prevent foreseeable harm. The court explicitly held that the dicta in `Hagen v. Laursen` was incorrect for merging strict liability's 'known dangerous propensity' requirement into negligence claims, and `Hagen` is overruled to that extent. For negligence, the relevant inquiry is whether the harm was reasonably foreseeable and whether the owner exercised ordinary care. The plaintiff presented sufficient evidence of negligence, including Dean's alleged statement about Bandit's habit of jumping and the dog's tethering system, to warrant standard negligence instructions. The jury's finding that Bandit lacked a 'vicious or dangerous propensity' under strict liability did not resolve the negligence question, as a dog's conduct can be potentially harmful (e.g., 'playful' jumping) even if not strictly 'vicious or dangerous,' and thus still give rise to a duty of care. The trial court's refusal to give unadulterated negligence instructions was prejudicial error, preventing the jury from considering a valid legal theory.
Dissenting - Sparks, J.
No, the trial court did not err in its instructions, and the jury's finding that Bandit was not dangerous resolved the negligence question, rendering any instructional error harmless. The majority mistakenly expands dog owner liability by drawing an untenable distinction between 'dangerous' dogs and those merely posing a 'foreseeable risk of harm.' Under California law, any propensity of a dog 'likely to cause injury' is a dangerous propensity. It is the court's role, not the jury's, to determine the existence of a legal duty. Dogs are legally presumed 'tame, docile and harmless' unless an owner knows or should know of a 'dangerous or vicious characteristic.' Therefore, owners of peaceful dogs have no duty to confine or constantly control them. The jury's special verdict explicitly found Bandit lacked a 'vicious or dangerous propensity,' which, in legal terms, means there was no foreseeable harm to predicate a negligence claim upon, and thus no duty. The trial court's offer to modify negligence instructions to require knowledge of a dangerous tendency correctly reflected California law, and plaintiff's refusal to accept it waived the instructional error claim. Imposing a duty to constantly control peaceful dogs based on mere foreseeability of 'playful' but harmful actions would be an unreasonable burden, contrary to public policy and the traditional understanding of dogs as companions.
Analysis:
This case significantly clarifies the distinction between strict liability and negligence in actions for harm caused by domestic animals in California. It establishes that an owner can be held liable for negligence even if their dog does not possess a known 'vicious or dangerous propensity' (the standard for strict liability), provided the harm was reasonably foreseeable and the owner failed to exercise ordinary care to prevent it. This ruling potentially expands liability for dog owners, emphasizing the duty of ordinary care to prevent foreseeable harm from even 'playful' or 'over-demonstrative' behaviors that might not meet the stricter criteria for strict liability. It refines the application of general negligence principles to animal injury cases, allowing more avenues for recovery for injured plaintiffs.
