In Salinas v. Martin, (— Cal.Rptr.3d —, 2008 WL 3974426, Cal.App. 1 Dist., Aug. 28, 2008), a California Court of Appeal considered a case in which an employee on a home remodeling project was attacked by a dog belonging to another worker on the project, who had received permission from the property owner to keep his dogs on the property. The court ruled that because the risk was foreseeable and the property owner could have prevented the foreseeable dangerous condition, but did not, the property owner could be held liable for the injuries that resulted.
Stephen Salinas was an employee of a contractor on a remodeling project on a home owned by Paolo Martin. Martin told the contractor and the employees that they could store equipment and materials in his garage and backyard and could enter at any time to retrieve them. Martin also told some gardeners working at his home that they could keep their dogs, a pit bull and a pit bull mix, loose in his yard. Martin said he thought the dogs seemed friendly and safe, but the contractor on the job expressed concern to Martin about their running free in the yard, calling them “ferocious looking” and “dangerous.” On August 1, 2005, when Salinas entered Martin’s back yard to pick up some materials, the pit bull attacked and bit him repeatedly until he managed to flee from the yard.
Salinas sued Martin for negligence but the trial court granted summary judgment for Martin ruling that property owners must have “actual knowledge” of another person’s dog’s dangerous qualities to be liable and that Salinas had not raised a triable issue of fact as to Martin’s knowledge of the dog. Salinas appealed.
The trial court erred, the court said, when it applied precedents limiting landlords’ liability for damages caused by dogs belonging to their tenants because this is not such a case. Martin remained the occupant and controller of his property. The crucial element here is control, the court said. Quoting Cody F. v. Faletti, (2001) 92 Cal.App.4th 1232, the court repeated: “In general, courts have imposed a duty to prevent harm caused by a third party’s animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm.”
Here, the evidence showed that while Martin had no knowledge of specific incidents of harm caused by the dogs, he had been warned by his contractor that the dogs seemed “ferocious looking” and “dangerous” and should not be left unrestrained in the yard. He also knew that workers were coming and going from the yard while the dogs were there. The risk of harm was therefore “eminently foreseeable,” the court said.
The court also found Martin had an “unfettered ability” to prevent the dangerous condition. He maintained possession and control of the property and granted express permission for the dangerous dogs to be there. “He essentially participated in the creation of the dangerous condition of the property by authorizing or permitting the dogs to run loose in the yard,” the court found.
Hence, “moral blame” must be assigned to Martin for his failure to take minimal action to avert the foreseeable harm that ensued, the court found. The trial court’s judgment was reversed and the matter remanded for further proceedings consistent with the court’s findings.