<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by pious1:
today i was bitten by my neighbors rotwhiler. pardon my spelling, i'm one handed and in great pain. i was petting this normally taim and friendly dog. this occurred while the dog was tied up in front of my neighbors house, in an area that could be consider the housing associations common area the side walk and his grassy area. this is important because the association has its own liabilty policy. as for my injuries, i have a 87 stecthes in my left hand, posible never and tendon dange. question. since i was petting tthe dog and being from california is there contributory neglagence on my part and if so, would it affect both medical expense and pain and suffering. also tnere's possible three different insurance entities involved on medical, i'm retired military which paayes first and asked for third party later, which would be home owners and the asssociation. i think you got the drift of my situation.
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My response:
Hello Pious1 !! What are we doing up so late? Sorry to read about your dog bite. What a situation that is.
Anyway, you've got a winner case. Dog bites in California are "Strict Liability" cases. There's very little in the way of a defense to them because, in California, a dog does NOT get "one free bite." You don't have to prove the dog's prior viciousness or the dog owner's knowledge of the same. Get to an attorney and start your lawsuit against the homeowner / dog owner. You've got a terrific case.
Owners who failed to control their dog (see Ca Civil § 3342(a) --owners strictly liable for dog bites) or vaccinate their dog against rabies (see Ca Hlth & S § 121690(b)) could not assert assumption of the risk as a complete defense against plaintiff who was bitten while she rendered roadside aid to a dog struck by a car. Although plaintiff volunteered assistance, her assumption of the risk was "secondary" in view of the duties imposed by statute (above); in turn, plaintiff's own fault (if any) had to be assessed on a comparative negligence basis. [Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399-1400, 14 Cal.Rptr.2d 679, 683-684]
Ca Civil § 3342 makes the owner of a dog strictly liable for injuries suffered by someone who is bitten by the dog while in a public place or lawfully in a private place (i.e., not a trespasser); "viciousness" of the dog or the owner's knowledge thereof need not be pleaded and proved. Although this is arguably a "statutory liability," the general one-year limitations period of Ca Civ Pro § 340(3) applies--not the three-year period under Ca Civ Pro § 338(a). [Pritchard v. Sharp (1974) 41 Cal.App.3d 530, 116 Cal.Rptr. 9]
The theory is that dog-bite claims are essentially common law causes of action for the recovery of damages for personal injuries. Ca Civil § 3342 merely changed the proof required under the common law action by deleting the requirement that liability be predicated on allegation and proof that the dog was "vicious." [Pritchard v. Sharp, supra]
Also, report the biting incident to the Department of Animal Regulation so they can impound the dog, and get you the rabies tests you need (they are no longer painful - - there are painless tests now).
I hope you feel better real soon.
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited June 05, 2000).]
