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Tenants dog bites neighbor

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S

smccall

Guest
The tenants of our rental property own a dog that recently ran across the street from our property and attacked a dog being walked on a leash by some neighbors. While trying to separate the animals, the neighbors sustained minor injuries (scratches etc)and their dog sustained injuries that were treated at a vet. The first we knew of this was several weeks later when the neighbors contacted us by mail
to ask us to turn in a claim to our homeowners insurance to cover their hospital & vet costs. We immediately contacted our tenants who initially denied the incident happened, but finally admitted it and said they would contact the neighbors and handle the situation. Apparently they did't, because we were just served with small claims court papers for damages of $5000.00. Are we liable since the incident DID NOT take place on our property and we have a signed lease agreement from the tenants with a NO pet clause.
We live in California so need help with our small claims laws. Thank You!
 


I AM ALWAYS LIABLE

Senior Member
My response:

That was an absolutely wonderful treatise on the law and procedure. My compliments!

However, and there's always one of those, our homeowner could still lose the lawsuit based upon the following code section:

California Civil Code Section 1714.

"(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property . . ."

You see, the problem is not in the fact that our writer had a "No Pets" clause in the rental agreement, because that has no defense to the injuries to a third person, or that third person's property; e.g., their dog.

The problem is that our writer failed in his duties "by his want of ordinary care or skill in the management of his property . . ."

You see, it would have been very easy to "inspect" his property for violations of the rental agreement - - e.g., No Pets.

But for the fact that our writer failed to inspect his premises for violations, this accident would not have happened. But, since our writer failed to inspect his premises, our writer, right along with the tenant, will get "tagged" for the damages.

In my law practice, I do this to potential co-defendants all the time.

IAAL
 

I AM ALWAYS LIABLE

Senior Member
My response:

Not likely.

The law looks at these types of situations very narrowly; that is, an owner of property is always imbued with knowledge of the condition of his property at all times, and does not recognize the "ostrich head in the sand" defense.

Landlords are now held to the general statutory duty to use "ordinary care or skill in the management" of their property. They are responsible for injuries proximately caused by a failure to exercise such due care, except to the extent that injured persons, "willfully or by want of ordinary care," brought the injury upon themselves. [Ca Civil § 1714(a); Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674-675, 25 Cal.Rptr.2d 137, 142; Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 221; see also Peterson v. Super.Ct. (Banque Paribas), supra, 10 Cal.4th at 1196-1197, 43 Cal.Rptr.2d at 842-843]

[Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1135-1136, 32 Cal.Rptr.2d 755, 758-759--landlord liable for injury caused by tenant's guard dog whose dangerous propensities were discoverable by reasonable inspection upon renewal of lease]

Likewise, since landlords have a right of entry and control upon execution or renewal of a lease, they have a duty to inspect upon renewal, assignment or sublease, and upon reletting the premises to a prior tenant. [Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781, 258 Cal.Rptr. 669, 675 (sublease); Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134, 32 Cal.Rptr.2d 755, 758 (lease renewal)--agreement to renew or relet cannot relieve landlord of duty to conduct reasonable safety inspection; Dennis v. City of Orange (1930) 110 Cal.App. 16, 22-23, 293 P 865, 867 (reletting to prior tenant)]

Scope of duty: The duty of inspection charges landlords with those matters that would have been disclosed by a "reasonable" inspection. Thus, landlords are subject to negligence liability for injuries resulting from defects and dangerous conditions that could have been discovered through a reasonable inspection at the time the lease was executed (or the tenancy renewed, assigned, etc.). Normally, this is a question of fact. [Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at 782, 258 Cal.Rptr. at 675-676]

A dog that will run from the premises and attack a third person, or damage another's property, is a "dangerous condition" of the landlord's premises.

Sorry.

IAAL

[Edited by I AM ALWAYS LIABLE on 11-26-2000 at 09:12 PM]
 

I AM ALWAYS LIABLE

Senior Member
Re: To IAAL

rrg956 said:
Hypothetically, if we were arguing this case, I would respond to your citations as follows:

I submit your cited cases can also be used to show a standard the writer's accusers cannot meet. In “Ann M. v. Pacific Plaza Shopping Center” the shopping center willfully allowed transients to sleep and ‘reside’ at the strip mall at night which facilitated the rape of Ann M. In “Becker v. IRM Corp” the landlord had access and control of the unsafe shower doors that injured the Plaintiff.

In "Portillo v. Aiassa" "Mora v. Baker Commodities, Inc." and "Dennis v. City of Orange" these cases all refer to opportunity of the landlord to inspect the premises or property at "the time the lease was executed, renewal, assigned, etc."

The foregoing citations presumes facts not in evidence. Based on the writer's story, we have no evidence that the writer failed to inspect the property upon the inception of the lease nor do we have any evidence to suggest that the lease was ever renewed, sublet or assigned, giving the writer a subsequent opportunity to inspect the property and find the dog.

Further, unlike Pacific Plaza Shopping Center who made an apparantly pragmatic decision not to roust transients and IRM Corp who allowed untempered shower glass doors to be in their apts., We have no evidence that the writer had any foreknowledge of the dog or the potential risk.

Absent the neighbor proving by a preponderance of evidence that the writer had an opportunity to know (inspections), should have reasonably known (prior reports of dog bites, complaining neighbors, etc.), that the dog was on the premises let alone that the dog represented any danger to anyone, there is no evidence that the writer failed to fulfill thier general statutory duty to use "ordinary care or skill in the management" of their property. Under the axiom that the burden of proof lies with the moving party, the writer should prevail due to lack of evidence.

Additional Info for the writer: They can, at any time, sue thier tenants for any judgements rendered against them. Although virtually everyone in California sues for $5000 in small claims court, the actual damages are limited to whatever reciepts for medical treatment for the dog and injured persons.

My response:

An absolutely wonderful memorandum !! Superb ! You are hired.

But (and there's always one of those), like I said, the "head in the sand" routine is still not a defense.

You see, in California, this landlord still had a duty and opportunity to periodically inspect his premises and property. The landlord, in this instance, had a right under the Landlord/Tenant Statutes of California to, with 24 hours Notice, go onto the property to inspect for safety, and for dangerous conditions. This means inside and out.

Therefore, our writer can be found liable on the theory that he had control of the premises, and "should and could have known" of the dog being on the premises; that it was a violation of the Lease; and that it was "reasonably foreseeable" that dogs, in general, and this dog in particular, have a propensity of being territorial and aggressive under certain circumstances.

Landlord is still on the hook.

Real good job though. I really like the way you think, and the way you present your case. I certainly hope you're going to make FreeAdvice.Com a habit, like I have. It's really great to have you aboard !

IAAL


[Edited by I AM ALWAYS LIABLE on 11-27-2000 at 02:03 AM]
 

I AM ALWAYS LIABLE

Senior Member
My response:

Periodic inspections could have even been once per month, or every other month. I think this whole matter is going to come down to the landlord's "diligence" about his property inspection duties. Also, it's going depend upon the side of the bed the judge woke up on.

Listen, if you keep writing like you have, you and I will NEVER have any problems. In fact, I'd want you right next to me on these boards - - whether you agree or disagree with me. I have a lot of respect for someone, such as yourself, who can argue a point in a logical and concise manner.

You make sense, you write very good, and your ability to understand concepts of law goes way beyond the average layperson. I like your style and approach to the issues.

You can agree or disagree with me and my responses any time you like - - in fact, I encourage it. It's not a matter of you or me being right or wrong. A lot depends upon how you approach the issues, and your logic in coming to your conclusions; that's what counts, and that's why there are courts - - because there's always two sides to an issue.

I really enjoy reading you. Keep up the good work !

IAAL
 

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