By Patrick J. Glinka, Esq.
August is National Dog Month. Founded in 1884, the American Kennel Club now recognizes 200 distinct breeds. So whether you own a newly recognized Bracco Italiano or the perennial family-favorite Labrador Retriever, it is a great time to show love to your canine. But with the ever increasing integration of our four-legged friends into our families, we must be mindful that dog ownership carries many responsibilities – some even imposed by law.
One such responsibility is found in California Civil Code section 3342. Commonly known as the “Dog Bite Statute,” section 3342 imposes strict liability on dog owners for any damages suffered by a person bitten by a dog in a public place or lawfully in a private place. “Strict liability” in legal parlance essentially means “no excuses.” It does not matter if your dog was only “playing” and did not “mean it.” The statute cares not if Snowball had never even done it before. That said, breaking down the statute is important to understanding the potential liability that your furry companion might bring.
The first part to take note of is that California’s Dog Bite Statute only applies to “dog owners.” Strict liability will not be imposed if you are merely watching a dog for a friend. That said, while a dog watcher might not be strictly liable, they could still be liable under a general negligence theory. A general negligence theory, however, is based on the dog watcher’s conduct and specific knowledge of the pet, and not just on the act. (Nelson v. Hall (1985) 165 Cal.App.3d 709.) Therefore, liability under that theory is much harder to prove.
The second part to take note of is that a person must be “bitten” by the dog. California’s Dog Bite Statute does not impose strict liability if your dog jumps up on someone and knocks them over, or even trips them with his leash. Moreover, while Fido does not need to break the skin, he must bite. (Johnson v. McMahan (1998) 68 Cal.App.4th 173.) But again, the theory of general negligence still applies. So, while not strictly liable, a dog owner or possessor can still be liable for damages if they act unreasonably such that Spot knocks over the census taker at the front door.
The third part to take note of is where the act takes place. If the dog bite happens in a public place, i.e. not at a personal residence, a dog owner will be strictly liable. And even if in a private place, an owner will still be strictly liable if the victim had a legal right to be present – think of a United States Postal mailman or an Amazon delivery person. Trespassers, however, get no such protection under California’s Dog Bite Statute. (Fullerton v. Conan (1948) 87 Cal.App.2d 354.)
Finally, nowhere does California’s Dog Bite Statute seem to consider those who invite potential harm. Despite this, and in apparent contradiction to the explicit words of the statute, California courts have recognized the defense of assumption of the risk as a complete bar to recovery under a few circumstances worth note. In Smythe v. Schacht (1949) 93 Cal.App.2d 315, the California Appellate Court found that “good morals and sound reasoning dictate that if a person … should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.” Dissimilarly, but equally understandable, California courts have found that primary assumption of the risk applies to veterinarians and kennel workers who, by the nature of their employment, place themselves at risk of being bit. (Nelson v. Hall (1985) 165 Cal.App.3d 709; Priebe v. Nelson (2006) 39 Cal.4th 1112, respectively.)
The “dog days” of summer are now upon us in more ways than one. Not only are these the hottest days of the year, but with August being National Dog Month, we are reminded to show our canine companions the same love they unconditionally share with us every day of the year. Returning that love not only means giving Princess a good belly rub; it also means being a responsible pet owner. One part of being a responsible dog owner is understanding how the law will treat you and your dog, and knowing that the law can sometimes be “strict” should give added incentive to keep everyone safe.
Patrick J. Glinka, Esq. is Special Counsel at Bradley, Gmelich & Wellerstein LLP. Mr. Glinka had defended clients in a broad range of civil litigation matters, including medical malpractice, products liability, premises liability and amusement and recreation liability. His experience includes many first chair jury verdicts, as well as appellate advocacy. Mr. Glinka is a graduate of the National Institute of Trial Advocacy and a member of the International Amusement & Leisure Defense Association and Defense Research Institute.
Mr. Glinka received his B.A. in History at the University of Massachusetts, Amherst and his J.D. at the Roger Williams University School of Law. He is admitted to practice in all California and Connecticut State Courts in addition to the United States District Court.