Daily Development for
Wednesday, January 22, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO THIRD PARTIES; ATTACKS BY TENANT'S ANIMALS: Landlord not liable for injuries to third parties caused by tenant's dog, even when landlord is aware of animal's vicious tendencies.

Allison by Fox v. Page, 545 N.W.2d 231 (Iowa 1996)

Tenant owned a dog that ran free in a fenced-in yard. The dog bit a young girl entering the yard to retrive a coat. The dog had injured another young girl in the yard two years earlier. Following a verdict for the child against landlord, procedural skirmishes ensued which ultimately led to an appeal to the Iowa Supreme Court.

Held: Landlord entitled to a nonsuit. Landlord has no liability for tenant's vicious dog as a matter of law. The court recognized only three exceptions to the general rule that a landlord is not liable for the actions of his tenant. First, the landlord may be liable for injuries occuring in areas over which the landlord retains control; second, the landlord may be liable for injuries on common areas open to the public; and third, the landlord may be liable for pre-existing conditions in certain cases.

The court cited a number of dog bite cases which found no liability for landlord, and refused to apply Restatement of Torts Sec. 379A, which imposes responsibility upon landlords where the landlord rents for an unreasonably dangerous activity. The keeping of dangerous dogs is not an unreasonably dangerous activity. Cf. Frobig v. Gordon, 881 P.2d 226 (Wash. 1994) (landlord not liable for attack by tigers that tenant maintained on premises with landlord's knowledge).

Comment: The court here does not acknowledge several other cases in which liability has been found under circumstances other than the exceptions it identifies.

For instance, the landlord may have some duty to business invitees of tenants where the rental is for business purposes, even if the area in which the injury occurs is not a "common area." See Portillo v. Aiassa, 32 Cal. Rptr. 2d 755 (Cal. App. 1994). The editor criticizes Portillo (a dog bite case) in the 1994 ABA SURVEY OF CURRENT DEVELOPMENTS IN REAL ESTATE LAW because the party injured was a service delivery person, and not an ordinary business invitee.

Further, a landlord may be liable when the tenant maintains a nuisance and the landlord could evict the tenant and failed to do so. Klimkowski v. De La Torre, 857 P.2d 392 (Ariz. Ct. App. 1993). (Tenant's children playing with fire near stored gasoline caused explosion which injured neighbor. Neighbor had complained to landlord in the past of the children's activities and the tenant's storage of hazardous materials.)

Finally, there may be some greater duty of the landlord to other tenants than to strangers. In Zuniga v. Housing Authority, 48 Cal. Rptr. 353 (Cal. App. 1995), a landlord was held liable for failure to protect tenants who were attacked in their residence by gangs that were "hanging out" at the apartment complex with knowledge of the landlord. But in Medina v. Hillshore Partners, 46 Cal. Rptr. 2d 871 (Cal. App. 1955), a landowner was not liable when a gang congregating on his property chased down a passerby and beat him on other property. This suggests that the court may see a higher duty on the part of the landlord toward tenants than toward others. Thus, a tenant bitten by another tenant's pet may have some remedy, even if the bite does not occur in a common area, if the landlord was aware of the pet's dangerous tendencies and did nothing.

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