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Who Let The Dogs Out? Landlord Liability in Dog Bite Cases

Tue, 11 Mar 2014
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Published in Articles

INTRODUCTION

An injured person may sue the owner or keeper of an animal under a strict liability theory based upon the owner’s knowledge of vicious characteristics of an animal abnormal to its class, or for negligence. In addition, injured parties may sue a property owner under a premises liability theory. Baker v. Pennoak Properties, 874 S.W.2d 274, 277 (Tex. App.—Houston [14th Dist.] 1994, no writ).

LANDLORD LIABILITY: KNOWLEDGE REQUIRED

In Texas, a landlord or landowner can be held liable for failing to rid premises of a known dangerous dog. In Baker v. Pennoak Properties, 874 S.W.2d 274, 277 (Tex. App.—Houston [14th Dist.] 1994, no writ), the Court of Appeals noted that “a lessor retaining control over premises used in common by different occupants of his property has a duty to exercise reasonable care to keep those common areas reasonably safe for the use of tenants and their guests.” 874 S.W.2d at 275. This duty includes “protecting tenants from known vicious dogs.” 874 S.W.2d at 277. The Baker court set forth a two-part test: “(1) the injury must have occurred in a common area under the control of the landlord; and (2) the landlord must have had actual or imputed knowledge of the particular dog's vicious propensities.” Id.

In Bantra v. Clark, the appellant-landlord appealed a verdict that found him negligent for injuries suffered by a child visiting a tenant’s residence. See Bantra v. Clark, 110 S.W.3d 126 (Tex. App.—Houston [1st App.] 2003 no pet.). The child was attacked by pit bull when she visited the tenant’s rented house owned by Bantra. The lower court found the tenant and landlord each 50% liable for the girl’s injuries. The Court of Appeals held that a landlord owes a duty of ordinary care to third parties who are injured by the animal, if (1) the landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property; and (2) the landlord has the ability to control the premises. In Bantra, the court found that Bantra had no duty of care because there was no evidence showing that Bantra either saw the dog and knew that it was a potentially vicious animal or identified the dog's bark as the bark of a potentially vicious animal. The judgment was reversed.

In Arlington Funeral Home v. Taylor, 474 S.W.2d 299 (Tex. App.—Eastland 1971, writ r.n.e.), the court assessed liability upon the operator of a funeral home when the plaintiff was bitten by a dog owned by the defendant’s employee who lived, in effect, as a tenant, adjacent to the funeral home. The court held that the funeral home could be held liable for the injuries because it had the right to control the use of the premises. The house in which the employee lived, and where the attack occurred, was connected to the funeral home. The house, including all appliances and furniture, was furnished to the employee was part of this salary and the utilities were paid by the defendant.

BYSTANDER CLAIMS FOR MENTAL ANGUISH

Texas recognizes the right of bystanders to recover damages for mental anguish caused by witnessing an accident, with the following limitations: the bystander must be closely related to the victim (such as his sibling, parent or child), and the victim must have been killed or severely injured. 

In Texas, “a claim for negligent infliction of mental anguish that is not based upon the wrongful death statute requires that the Plaintiff prove that he or she was, among other things, located at or near the scene of the accident, and that the mental anguish resulted from a direct emotional impact upon the Plaintiff from the sensory and contemporaneous observance of the incident, as contrasted with learning of the accident from others after the occurrence.” Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex. 1990), citing Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988).

In Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993), the court adopted the bystander rules originally promulgated by the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728 (Cal. 1968). The Dillon case holds that liability depends on -

  1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
  2. Whether buy levitra online
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    the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
  3. Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The Boyles case also established that a person who suffered emotional distress is not required to prove that he also had some type of physical manifestation of the emotional distress.

 

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