Daily Development for Monday, April 12, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Note that there are two cases reported here dealing with a similar issue:

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT; INJURIES CAUSED BY OTHER TENANTS: Landlord not liable for injuries caused by acting in violation of landlord's own rules and with landlord's knowledge and consent.

HYUN v.YOZGADLIAN No. A551297T5 (N.J. App. Div. 4/9/9) <http://www.njlawjournal.com/cases/SEO.HTM http://www.njlawjournal.com/case s/SEO.HTM (unpublished opinion)

Tenant moved into Landlord's premises on the understanding that Landlord's rules prohibited the keeping of dogs as pets. Thereafter, Tenant discovered that the Landlords permitted someone to live (illegally) in a basement apartment for no rent in exchange for maintenance responsibilities, and that that person kept a dog as a pet. Tenant complained to Landlord, and Landlord did instruct their worker to remove the dog. But before this occurred, the worker's dog bit Tenant. Tenant brought suit against Landlord.

The trial court found for Tenant, holding that even though Landlord was not aware of the dog's vicious propensities Landlord was a "guarantor" against injuries caused by dogs kep on the premises with knowledge of Landlord and in violation of Landlord's rules. (The trial court and the appellate court appeared to disregard the fact that Landlord had ordered the removal of the dog, and assumed that the dog was still on the premises with Landlord's knowledge and consent.)

On appeal: Held: Reversed: The simple failure of a landlord to enforce its own rules does not lead automatically to liability for injuries that are not a foreseeable consequence of the breach of the rules. New Jersey follows the common law approach that "every dog is entitled to one bite," meaning that there is no foreseeability of a dog biting a human unless and until the dog has demonstrated vicioius tendencies.

The court indicates that this is a case of first impression in New Jersey, but cites a number of cases from other jurisdictions on point: See Braun v. York Properties, Inc., 583 N.W.2d 503 (Mich. App. 1998) (promulgation of rules and regulations regarding breed and size of tenant's dog did not create a duty to a tenant who was injured when bitten by the dog in the absence of knowledge by defendants of the dog's dangerous proclivities); Malone v. Fons, 580 N.W.2d 697, 701 (Wis. App.), review denied, 584 N.W.2d 123 (Wis. 1998) (a landlord whose tenant's dog bit plaintiff was not liable for her injuries even though he allegedly had a "no pets" rule which he failed to enforce, knew of the dog's existence, and had been notified of an earlier incident where the dog exhibited mischievous behavior; the landlord is not an insurer for the acts of his tenant); Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 94849 (Alaska 1986) (the owner of a mobile home park which had a lease provision prohibiting tenants from keeping vicious dogs and requiring a tenant to immediately remove annoying pets, had a duty to protect others from injury from the tenant's dog when the owner had actual knowledge of prior incidents involving the dogs); Matthews v. Amberwood, 719 A.2d 119, 13132 (Md. 1998) ("no pets" clause in lease creates duty on the part of the landlord to protect tenant's social guests from injury from the tenant's pit bull dog when the landlord had notice of previous dangerous incidents involving the dog).

Comment 1: There is no discussion of agency.

Comment 2: Where, as the court appears to assume here, the landlord wilfully refuses to enforce its own rules, it should have some responsibility for the foreseeable consequences of that failure. The unresolved question here is whether the dog bite was such a foreseeable consequence. On retrial, should it be open to plaintiff to demonstrate that the juxtaposition on a residential premises of a pet dog and a tenant who has a fear of dogs is itself a situation that could increase the risk of of a biting incident?

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT'S INVITEES: Maryland high court finds landlord liable for death of child mauled by tenant's pit bull dog where landlord failed to enforce "no pet" rule against tenant even where dog had not bitten anyone in the past and attack occured inside tenant's premises and not in common area.

Matthews v. Amberwood Associates Limited Partnership, Inc., 351 Md. 554, 719 A.2d 119 (Md. 1998).

There are two lengthy and thoughtful opinions here, a majority opinion and a dissent joined by three members of the court. Both sides take pains to detail and support their views of the case. It is a case which deserves sober treatment.

The incident was horrific. A dog attacked a fourteenth month old child while he and his mother visited the dog owner's apartment. The dog continued to bite the child while she held the child in her arms and futiley attempted to release the dog's jaws. Even after the owner, who had departed the apartment briefly, returned and stabbed the dog repeatedly with a kitchen knife, freeing the child, the dog coninued to attack throughout the period that an ambulance came to take the child away. The child died in the hospital an hour later.

The dog was described by the majority opinion as a "pit bull," but the dissent points out that the animal was not the "American pit bull terrier" that is commonly characterized as an especially aggressive animal, but rather of a related but distinct breed. The dog, named "Rampage," had been a very aggressive watchdog, jumping and barking at persons coming near it when chained outside the apartment or inside the apartment when its master was gone. But it had been docile in its master's presence, and indeed the victim and his mother, neighbors in a nearby apartment, had visited the dog owner's apartment on a weekly basis during a one year period.

A jury awarded a $5 million verdict against apartment owner, including a substantial award for emotional distress injury to the child's mother. The trial court refused to instruct or admit evidence on defenses of contributory negligence or assumption of risk, which defenses were raised for the first time on the eve of the trial.

The majority notes that this is not a case of a landlord's responsbility with respect to common areas of an apartment complex, where the landlord has control. But the court concludes that the landlord did have control over the interior of the tenant's apartment to the extent that it had promulgated tenant's rules. One of these rules prohibited the keeping of pets. The landlord, of course, was aware that the tenant had a pet, and did not attempt to enforce the rule against her. The defense argued that even if the landlord had enforced the rule upon first learning of the dog's vicious tendencies, the processes for eviction based upon the violation of the rule would not yet have run, and the dog would still have been in the apartment. The court responded that this argument assumed that the tenant would not have responded to an instruction from the landlord to get rid of the dog, and that the landlord could not raise the argument that its efforts would not have availed when the landlord failed to do everything that it could.

The Court did not hold that a landlord's retention of some control over particular matters in the leased premises, standing alone, constituted a sufficient basis to impose such a duty upon the landlord. Instead, it emphasized a balancing test to determine whether a duty of reasonable care should be imposed in particular circumstances.

The usual rule with respect to dogs is that there is no liability where the dog has not yet attacked anyone and demonstrated vicious tendencies. The majority finds that evidence of the dog's aggressiveness was sufficient to supply evidence of vicious tendencies, even though it had never actually bitten anyone in the past. The apartment owner had received numerous reports of these tendencies, as its own workers had been unable to perform maintenance activities in the apartment because of the dog. The opinion is particularly noteworthy for its collection of data concerning the especially vicioius nature of pit bulls, which the dissenting opinion criticizes as an effort to make the keeping of pit pulls a "strict liability" act.

Note that the dissent also points out that the animal in question was not classically a pit bull to begin with. Further, the dissent notes that the alleged record of "viciousness" amounted to no more than watchdog like activity which is a common and even desired characteristic in dogs. The dissent commented generally: "[S]ympathy for the victim of a tragedy should not serve as a substitute for evidence of duty, culpability and proximate cause. The legal issue in this case is whether the landlord should have to pay over five million dollars solely because the landlord did not make a futile attempt to evict a tenant whose dog barked and growled at maintenance men trying to enter the dog's residence when its owner was not home."

Comment 1: The majority's discussion of pit bulls will be particularly useful (as the dissent laments) for persons anxious to make a case for restricting the use of such animals as domestic pets.

Comment 2: The dissent notes the abundant evidence of intervening causation (the negligence of the dog's owner in leaving the apartment while dog was playing with such a young child) and contributory negligence/assumption of risk on the part of the mother. Because the majority grounds much of its ruling here on the timing of the raising of these defenses and other issues of trial tactics, it is difficult to see any kind of clear precedent in the majority's rulings on these questions. Presumably in another case these kinds of considerations will play a bigger role.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.