Our client was lawfully on private property when he was viciously attacked through a gate by the homeowner’s unsecured bull terrier. We proved the dog had known aggressive tendencies and secured a $250,000 settlement for the physical and emotional trauma our client endured.
Plaintiff, a 33 year old male, was invited to Defendant’s home, located in Van Nuys, CA, to purchase some products from Defendant. Upon Plaintiff’s arrival to Defendant’s home, Plaintiff stood by Defendant’s white metal gate outside of his home, at which time, Defendant’s vicious white and black colored bull terrier dog unexpectedly lunged his head outside of the metal gate and grabbed Plaintiff’s crotch with his teeth. Biting and chewing, the Defendant’s bull terrier then tore a part of Plaintiff’s penis apart, as well as piercing and tearing Plaintiff’s scrotum.
The elements for a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200 (Ortega); see Civil Code § 1714, subd. (a). In addition, a plaintiff suing for premises liability has the burden of proving the owner had actual or constructive knowledge of a dangerous condition in time to correct it, or that the owner was “able by the exercise of ordinary care to discover the condition.” Ortega, supra, at p. 1206, quoting Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.
A special relationship exists between landlords and “invitees” or those individuals with special permission form the landlord to enter the premises. Isaacs v. Huntington Hosp. (1985) 38 Cal.3d. 112, 123, 211. The Defendant knew of the dangerous hazard, which was the aggressive dog on the property, prior to inviting Plaintiff onto his property. Defendant’s failure to properly secure the animal after acknowledging such needed to be done, is evidence that he is liable for the severe psychological and bodily and injuries suffered by Plaintiff.
It was completely foreseeable that if that dog came into contact with Plaintiff, Plaintiff would be injured by the animal. Legal Responsibilities of Dog Owners Judicial Council of California Civil Jury Instructions, Instruction 463 (Dog Bite Statute) defines the elements as follows: “People who own dogs can be held liable for the harm from a dog bite, no matter how carefully they guard or restrain their dogs. To establish a claim, plaintiff must prove all of the following: 1. The defendant owned a dog; 2. That the dog bit plaintiff while he/she was in a public place or lawfully on private property; 3. The plaintiff was harmed; and 4. The defendant’s dog was a substantial factor in causing plaintiff’s harm. Further the common law provides strict liability for harm done by any domestic animal with known dangerous propensities abnormal to its class. Drake v. Dean (1993) 15 Cal.App. 4th 915, 921. This rule is also set forth in section 509 of Restatement Second of Torts (relied on in the leading California cases, including Drake v. Dean, supra): (1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm. (2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.” This rule of strict liability is based on the possessor’s actual or constructive knowledge of the abnormal dangerous propensity: 1. When an owner has reason to believe his dog is savage, ill-tempered, mischievous or dangerous to persons and property, he may be kept only at the owner’s risk, who will become liable for damages resulting from such conduct of the dog which exhibits such known traits or character. Hicks v. Sullivan (1932) 122 Cal.App. 635, 638. 2. The gravamen of the action is knowledge of the owner that the best was the possessor of vicious or mischievous propensities. Negligence or lack of care of the part of the owner in keeping or restraining the animal need not be shown. Hicks v. Sullivan (1932) 122 Cal. App. 637-638. 3. The gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with knowledge of the vicious propensities. In such instances the owner is an insurer against the acts of the animal, to one who is injured without fault, and the question of the owner’s negligence is not in the case. Hillman v. GarciaRuby (1955) 44 Cal. 2d 625, 626. Negligence A short statement of California law as it related to negligence mishandling of, or failure to control a dog, is given in Levy, Golden Sacks, 1 California Torts (1994), “Strict liability Animals,” section 6.14, p. 6.26: “In a negligence action for personal injury caused by a dog, the plaintiff need not plead and prove that the injury was caused by some abnormal trait of the animal” Here, our client needs only to prove that your insured could reasonably have anticipated that the dog’s conduct would cause injury and that your insured did not exercise reasonable care to control the dog. One who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults, is liable under section 509 of the Restatement for harm done by its dangerous playfulness or over demonstrative affection. Defendant is clearly negligent in this case. Defendant’s Dog is Dangerous and Vicious in accordance to California Food and Agriculture Code A potentially dangerous dog is a dog that meets the criteria set forth in section 31602 of the California Food & Agriculture Code. Pursuant to this section, a potentially dangerous dog means any of the following: (A) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604. A vicious dog is one that meets the criteria set forth in section of 31603 from the same code. (B) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being. Here, Defendant’s dog is definitely dangerous and vicious due to its behavior. Further, the injuries Plaintiff suffered are identical to the same injuries as defined in sections 31604 of the California Food & Agriculture Code. This section defines Severe Injury as a physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery. Hence, a potentially dangerous dog has to be registered as such and then it has to be kept indoors or in a securely fenced yard, from which it cannot escape, and into which children cannot trespass. When off the owner’s property, it has to be restrained by a substantial leash and under the control of a responsible adult. As stated earlier, Defendant’s dog was not secured as required pursuant to various laws in California. Emotional Distress One of the most painful effects of a dog bite can be the resulting morbid fear of dogs. A victim frequently is a dog lover, after being attacked, however, he/she no longer feels comfortable around dogs, and thereby cannot longer enjoy the companionship of “man’s best friend.” Emotional injuries are essentially a normal response to an extreme event. Emotional injury involves the creation of emotional memories, which arise through a long lasting effect on structures deep within the brain. The more direct exposure to the traumatic event, the higher the risk for emotional harm. As a result of the dog assault and bites, Plaintiff suffered deep lacerations with bleeding to his penis and scrotum. Plaintiff’s injuries were significant enough to incur $7,000 in medical expenses. Plaintiff required sutures to his penis and scrotum, and suffered loss of consortium due to sexual dysfunction from his injuries, along with severe psychological trauma, for which he requires future extensive psychological treatment. Defendant disputed liability and Plaintiff’s claims for injuries and damages. Defendant also disputed the reasonableness and necessity of Plaintiff’s medical treatment. However, through lengthy discovery and depositions, it was determined that Defendant’s dog did in fact physically assault and bite Plaintiff. Furthermore, through the testimony of expert doctors, it was determined that Plaintiff’s injuries and treatment were reasonable and necessary, considering the severity of the punch to Plaintiff’s face. Messrs. Khakshooy and Agarwal were able to recover $250,000 for Plaintiff.
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