Local jurisdictions have banned certain dog breeds. Government bans do not cover all dogs but only certain breeds. The government has concluded that certain breeds, such as pit bulls, have vicious tendencies and that the public needs to be protected from these breeds. The vast majority of dogs or dog breeds are not vicious or do not have vicious propensities. However, theoretically, any dog of any resident could turn vicious and attack another resident or a third party. In many instances, when dogs do attack, dogs attack children. If a resident’s dog does attack, are you liable for the resulting damages?
The leading case in Colorado addressing this issue is Vigil v. Payne (“Vigil”) decided by the Colorado Court of Appeals in 1986. In this case, two chow dogs attacked a little girl causing severe permanent physical and psychological injuries. The dogs belonged to residents. The residents kept the dogs on the leased property with the landlord’s knowledge and consent. Prior to the resident’s taking possession of the premises, the landlord took care of the dogs for two weeks. During this time, “the dogs threatened the landlords’ two-year-old grandson, and the landlords otherwise came to know of the vicious propensities of the dogs.” Despite this knowledge, the landlords entered into the lease with the residents, allowed them to move in, and made no effort to remedy or address the dogs’ vicious propensities.
As in all negligence cases, you may only be found liable if the court finds you owe a duty to others. Generally, if a duty exists, you owe a duty to others to use reasonable care to prevent injury or harm. In determining whether a duty exists, the court will consider the risk involved, the foreseeability and likelihood of injury as weighed against the value to society of the conduct, the magnitude of the burden of guarding against the harm, and the consequences of imposing liability. Based on these considerations, prior to Vigil v. Payne, Colorado courts generally concluded that where a landlord is out of possession of leased premises and the tenant has exclusive control of those premises, the landlord is not responsible for attacks by animals kept by the tenant on the leased premises. However, in the Vigil case, the Colorado Court of appeals noted that other jurisdictions, which have recently addressed this issue, have adopted clearly defined exceptions to the general rule.
Specifically, New York courts had imposed a duty of care on landlords for vicious dogs when the landlord knew of the vicious tendencies of the dog prior to entering into the lease. Because the landlord had knowledge of the vicious propensities of a tenant’s dog prior to entering into a lease, the New York Court found by leasing the premises to the owner of the dog, the landlord could be found to affirmatively have created the very risk which was reasonably foreseeable and which operated to injure plaintiff. The New York Court further stated that “considerations of public policy require that a landlord who, prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury has a duty to take such precautions as lie within the control of the landlord reasonably to protect such third persons from the injuries to be foreseen if no such precautions are taken.”
In Vigil, the Colorado Court of Appeals adopted the New York rule in dog bite cases involving landlords. The court did this because the reasoning of the New York decision had already been adopted to a large extent in Colorado in other non-dog bite cases involving landlord liability. The rule is that when a landlord has actual knowledge that a tenant owns an animal whose vicious actions have created a clear potential for injury, the landlord has a duty to take reasonable precautions to protect third persons from the animal. However, the court specifically limited the duty of care to those instances in which the landlord has actual knowledge of the vicious actions of the animal before entering into a rental agreement with the animal’s owner and still enters into a rental agreement with the animal’s owner.
Given the rationale for the rule (your knowledge of the vicious tendencies of the dog), residents and their attorneys will quickly attempt to extend the rule. Residents are likely to argue that even if the dog was not vicious at the time of leasing, but later became vicious and you knew about it, you should be held liable. A somewhat similar but certainly more problematic scenario involves the adoption of “pitbull restrictions or bans” by local jurisdictions. Generally, under these bans, existing dogs are grandfathered and thus allowed to remain. However, if an attack by a grandfathered dog takes place, residents may argue that the adoption of the ban placed you on notice, and thus gave you knowledge of the vicious propensities of the dog. Whether such an argument can prevail in court remains to be determined. Because the outcome of this scenario is uncertain, you should not allow any residents to have banned dogs regardless of whether such dogs are grandfathered in or not.
This issue, as most other resident issues, illustrates the importance of a solid lease. Your lease should clearly set forth your rights to deal with problem dogs (or animals) if problems occur. Unfortunately, too many leases do not adequately address vicious dog or animals. Under these leases, your only recourse is to serve a compliance notice (a demand for compliance or possession). The compliance demand (prevent your dog from attacking other people within three days or get out) does not give you sufficient leverage to handle the situation, and does not reduce or eliminate your liability. For example, the dog bites somebody, you serve a demand for compliance, the dog doesn’t bite anyone for 3 days, the dog bites somebody a month later, and the resident who was bitten argues that you should be liable because you knew but did not remove the dog.
Your lease should give you the absolute right to remove any animal that disturbs or poses a threat. Your lease should be very specific that it’s your sole and absolute judgment that determines whether the animal disturbs or poses a threat. Your lease also should give you the right to terminate the resident’s occupancy rights if the resident refuses to remove the problem pet. Finally, as part of your lease or pet addendum, residents contractually indemnify you (agree to pay the damages) if you are sued by any individual because of resident’s pet.