Some dogs are unpredictable and may get out a loose gate or dig a hole under a fence. What if the dog then bites a neighbor, i.e. the five-year-old that lives next door?
This is not a mere hypothetical question, or academic “what if” that has very low basis in reality. The Center for Disease Control estimates that, in 2017, nationwide 4.5 million people per year are victims of dog bites, 334,000 of which end up in emergency rooms. More than half of these are children. The effects can be serious scarring, as well as psychological injuries such as post-traumatic stress disorder when the event is especially traumatic.
Summary in 50 Words or Less: A person whose dog bites a neighbor may face criminal charges under Penal Code §§ 399 (owner of a mischievous dog that injures another), 245(a)(1) (assault with a deadly weapon) or 242 (simple battery) depending upon the circumstances.
The owner may also face a civil lawsuit for damages, brought under Civil Code § 3342.
The problem has a civil and a criminal aspect in California.
Under California Civil Code § 3342, the owner of the dog is strictly liable civilly for the injuries to the victim. This means that the victim does not need to prove the owner was negligent or intended the dog to bite. There is no requirement that the owner be aware of the viciousness of the dog in the past or that the dog gets “one free bite” first as is the law in some other states. There are certainly exceptions to the owner’s liability, i.e. if the owner is a police department and the dog is being used to apprehend a suspect or serve a warrant, for example. Likewise, if the victim is trespassing in an area where the dog is held or the victim teases the dog until the dog reacts by biting.
Section 3342 is intended to prevent dogs from being a safety hazard to a neighborhood and to encourage owners to be responsible in how they handle their dogs. Davis v. Glaschler (1992) 11 Cal.App.4th 1392, 1399.
The victim would likely make a claim through the home-owner’s insurance of the dog owner, or sue the dog owner in civil court. The recoverable damages include medical expenses, pain and suffering, future medical expenses, lost earnings, future lost earnings, loss of earnings capacity and property damage.
The statute can also extend vicarious liability to a landlord to remove dangerous dogs from rental or leased premises when the landlord is aware of the dangerous propensities of the dog. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated that: "We hold that a landlord has a duty to exercise reasonable care in the inspection of his commercial property and to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises."
From a criminal perspective, much more is required, as in any crime, there must be a mental state of intending to cause an effect or having a reckless, willful disregard of the likely effects of certain conduct. California Penal Code § 399(a) makes it a felony if someone owns a “mischievous” dog and willfully allows the dog to go “at large” or fails to adequately protect the public from the dog and the dog kills a human being who has taken all reasonable precautions to prevent such injury.
California Penal Code § 399(b) makes it a felony or a misdemeanor (a “wobbler”) if the owner of such a “mischievous” dog willfully allows the dog to go “at large,” or fails to properly safeguard the dog and it causes serious bodily injury to another person who has taken all reasonable precautions to prevent such injury. The dog owner may also face liability under Penal Code §§ 245(a)(1), assault with a deadly weapon, and 242, battery, depending upon what the owner’s dog does to the victim.
For more information about battery and battery by using one’s dog as a weapon, please click on the following articles:
- Pit Bull Owner Is Criminally Liable for His Dog’s Biting a Neighbor, Who Hit the Dog with a Cane to Protect His Labrador Retriever
- Double Jeopardy Prevents Conviction for Criminal Threats Involving Rottweiler
- What Is Battery? What Are the Defenses? Punishment?