Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSS710764, W. Robert Fawke, Judge.
Law Office of Marc E. Groosman, Albert D’Antin and D. Scott Mohney for Plaintiff and Appellant.
Brown, Brown & Klass, Delos E. Brown and John J. Stumreiter for Defendants and Respondents.
OPINION
MILLER, J.
Jeanne Jacobson (Jacobson) sued Michael and Tammy Chesonis (the Chesonises) based upon claims of strict liability (Civ. Code, § 3342) and general negligence, due to Jacobson being bitten by a dog. The trial court granted the Chesonises’ motion for summary judgment. (Code Civ. Proc., § 437c.) Jacobsen contends the trial court erred because (1) the trial court should not have applied the landlord-tenant duty of care when analyzing the element of duty, and (2) the Chesonises owed Jacobson “a general duty of care.” We affirm the judgment.
All further references to code sections will be to the Civil Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In her complaint, Jacobson alleged the following: The Chesonises resided in a single-family home in Fontana. David Hanlon (Hanlon) and a 175-pound Rottweiler (the dog) also resided in the Chesonises’ home. On January 1, 2006, the Chesonises hosted a party at their home, and they invited Jacobson to attend. During the party, the dog walked freely around the house. At one point during the party, the dog growled at Jacobson. Jacobson expressed concern to Hanlon, but Hanlon assured Jacobson that the dog was not aggressive. Fireworks were set-off during the party. Ultimately, the dog attacked Jacobson, causing puncture wounds and lacerations on her face. Jacobson alleged that she suffered damages and medical expenses in excess of $25,000, which would be proven at trial.
In their motion for summary judgment, the Chesonises alleged the following: Jacobson was bitten by the dog at the Chesonises’ house, during a party, on January 1, 2006. Hanlon and the dog had been residing at the Chesonises’ home since April 2005. Hanlon owned the dog. Hanlon paid for the dog’s food and medical expenses. Prior to January 1, 2006, the Chesonises and Hanlon never saw the dog snarl or snap at a person, or bite a person.
The Chesonises argued that the trial court should grant their motion for summary judgment because (1) they did not own the dog; (2) they were not aware of the dog displaying any vicious behavior prior to January 1, 2006; and (3) Hanlon was in exclusive control of the dog on January 1, 2006.
On November 12, 2008, the trial court held a hearing on the Chesonises’ motion for summary judgment. In support of their motion, the Chesonises submitted a deposition from Hanlon in which he testified that he (1) was the owner of the dog; (2) resided in the Chesonises home at the time of the attack; (3) obtained the dog from a rescue group in April 2003; and (4) had never observed any vicious tendencies in the dog prior to January 1, 2006. The trial court noted that the Chesonises submitted declarations that were “identical” to Hanlon’s deposition testimony.
The trial court found that the Chesonises submitted undisputed proof of the following facts:
(1) Hanlon and the dog had been residing at the Chesonises’ home since April 2005.
(2) While residing with the Chesonises, Hanlon paid for the dog’s food and medical expenses, and walked the dog.
(3) The Chesonises did not contribute to the dog’s upkeep.
(4) The dog had not bitten anyone prior to January 1, 2006.
(5) The Chesonises had not observed any vicious tendencies in the dog prior to January 1, 2006.
(6) There were no more than nine people at the Chesonises’ party at any one time.
Jacobson argued that two of the undisputed facts listed above were, in fact, disputed. The first fact from the Chesonises’ list that Jacobson claimed was a disputed fact was that the dog had not bitten anyone prior to January 1, 2006. Jacobson claimed the fact was disputed because Hanlon did not have knowledge of the dog’s history prior to adopting it from the rescue group. The court found that Jacobson offered no evidence to contradict the Chesonises’ evidence showing that the dog had not displayed any vicious tendencies prior to January 1, 2006. The second fact that Jacobson claimed was a disputed fact was that the Chesonises had never observed any vicious tendencies in the dog. Jacobson argued that the fact was disputed because growling is vicious behavior, and Jacobson testified that another partygoer told her the dog often growls. The trial court found that Jacobson cited “no authority or case law holding that growling constitutes a dangerous or vicious tendency.”
The trial court then examined a list of 10 facts, submitted by Jacobson, which Jacobson claimed were undisputed. The court found that the facts on Jacobson’s list were mostly irrelevant or legal conclusions.
The court found that section 3342, which was the legal basis for Jacobson’s strict liability claim, only imposed strict liability upon a dog’s owner. The court noted that Jacobson (1) did not dispute the fact that the Chesonises were not the dog’s owners, and (2) contended that Hanlon was the owner of the dog. Consequently, the trial court concluded that the Chesonises could not be held strictly liable pursuant to section 3342.
Next, the trial court addressed Jacobson’s claim for negligence pursuant to a theory of premises liability. The court remarked that “liability is determined by ordinary negligence principles.” The trial court found that there was “no competent evidence that the [Chesonises] had prior knowledge of any dangerous tendencies of the dog in time to have prevented the attack. And the attack was simply not foreseeable.” In regard to Jacobson’s argument that she complained about the dog’s growling, the court noted that Jacobson testified that she complained about the growling to Hanlon, but she did not claim that she mentioned the growling to the Chesonises.
The trial court found that Jacobson “failed to meet her burden of showing that there is a triable issue of material fact.” The trial court granted the Chesonises’ motion for summary judgment.
DISCUSSION
A. Standard of Review
We independently review the trial court’s order granting the Chesonises’ motion for summary judgment. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) The burden is on the Chesonises to show that Jacobson cannot establish one or more elements of the action. (Ibid.) “‘To prevail on [her] action in negligence, [Jacobson] must show that [the Chesonises] owed [her] a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of [her] injuries.’ [Citation.]” (Ibid.)
B. Duty of Care
Jacobson contends that the trial court applied the incorrect duty of care standard when analyzing her claim for negligence. Specifically, Jacobson asserts the landlord-tenant duty of care is not applicable to this case, because Hanlon and the dog lived in the same residence as the Chesonises, and the landlord-tenant duty of care is reserved for landlords and tenants that lived on separate properties. Jacobson asserts that the trial court should have applied the ordinary negligence duty of care. We agree.
A “bright line” rule has been created concerning the duty of care owed by landlords who have relinquished control of their property to a tenant. The bright line rule provides that a landlord will be liable for a third party’s injury on the landlord’s property if the plaintiff can show that the landlord had actual knowledge of the dangerous condition, plus the right and ability to correct or cure the dangerous condition. This bright line rule was developed in order to release landlords from the need to engage in intrusive oversight of their property, thus allowing tenants to enjoy their tenancies undisturbed. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 (Salinas).)
Beyond the bright line rule, an even more specific rule was developed concerning a landlord’s liability for injuries caused to a third party by a tenant’s dog: “‘a landlord owes a duty of care to his tenant’s invitees to prevent injury from the tenant’s vicious dog when the landlord has “actual knowledge” of the dog’s vicious nature in time to protect against the dangerous condition on his property.’ [Citation.]” (Salinas, supra, 166 Cal.App.4th at p. 413.) However, a landlord is not under a duty to inspect the property in order to discover whether a tenant’s dog has vicious tendencies. (Ibid.)
In the instant case, Jacobson is not asserting that the Chesonises are absentee landlords who neglected their duty to inspect their property. Jacobson’s action is distinguishable from the situations to which the foregoing landlord-tenant rule might apply because the Chesonises were not absentee landlords with limited access to the property. The Chesonises still had a possessory interest in the property, and continued to control the premises. Thus, the essential principles that underlie the duty of care imposed upon landlords, i.e., limiting a landlord’s right to engage in intrusive oversight and control of a tenant’s use of the property, are absent in the present case. (See Salinas, supra, 166 Cal.App.4th at p. 413 [reaching a similar conclusion].)
Outside of the landlord-tenant context, “‘courts have imposed a duty to prevent the 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.’ [Citation.]” (Salinas, supra, 166 Cal.App.4th at p. 414.) Given the Chesonises continued presence on the property, they had a much greater awareness of the events that occurred there, and they also did not relinquish their right or compromise their ability to prevent foreseeable harm on the premises. Moreover, Jacobson relies on an affirmative act of negligence by the Chesonises that caused her harm, i.e., allowing the dog to walk freely around the residence during the party.
Based upon the foregoing analysis of the record and relevant legal principles, we conclude the cases that decline to impose a duty of care unless a landlord has actual knowledge of the dog’s vicious tendencies, coupled with the right to have the dog removed from the premises, are not applicable to the instant case. Under the facts presented in the case before us, we cannot limit our analysis of the Chesonises’ duty of care to proof of their knowledge of the dog’s vicious nature and their ability to prevent the attack, as we would if they were residential landlords who relinquished control of their property to a tenant. Instead, we must examine the totality of the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (partially superseded by statute on a different issue in Greenberg v. Superior Court (2009) 172 Cal.App.4th 1339, 1352, fn. 8) (Rowland), that are pertinent to determining the scope of the Chesonises’ duty of care. (See Salinas, supra, 166 Cal.App.4th at pp. 414-415 [reaching a similar conclusion].) In sum, we conclude that the trial court erred by only examining the evidence related to the Chesonises’ knowledge of the dog’s vicious tendencies.
Jacobson argues that the trial court should have applied the duty of care standard set forth by this court in Lundy v. California Realty (1985) 170 Cal.App.3d 813 (Fourth Dist., Div. Two) (Lundy). In Lundy, this court concluded that “section 1714 embodies the public policy of this state and in a very general sense imposes a duty upon every person to exercise reasonable care to avoid injury to [another] person.” (Id. at p. 818.) However, this court further observed that section 1714 could not be used to establish the existence of a legal duty in any particular case. (Lundy, at p. 818.) Rather, the determination of whether a defendant in a specific case had a duty toward a third party is matter of policy and involves balancing the factors set forth in Rowland. (Lundy, at p. 819.)
“‘Civil Code section 1714 sets forth the general duty of a property owner toward others: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” The application of this provision entails an inquiry as to “whether in the management of his property [the property owner] has acted as a reasonable [person] in view of the probability of injury to others....” [Citations.]’ [Citation.]” (Salinas, supra, 166 Cal.App.4th at p. 411-412.)
Jacobson appears to be taking the position that Lundy stands for the proposition that section 1714 establishes a defendant’s legal duty, because Jacobson does not mention the Rowland factors, and simply asserts that the Chesonises had “a duty to use ordinary care.” We reaffirm our reasoning in Lundy—section 1714 does not establish the existence of a legal duty—if it did, then “the myriad cases holding the existence of a legal duty on the part of a defendant in a particular case is essentially a question of law [citations] would be inexplicable.” (Lundy, supra, 170 Cal.App.3d. at pp. 818-819.) Accordingly, we follow our precedent, and analyze the Rowland factors.
C. Analysis of Rowland Factors
Jacobson contends that the Chesonises owed her a “general duty of care as property owners to remove a dangerous condition on the premises.” We disagree.
The Rowland factors are (1) the foreseeability of harm to Jacobson; (2) the degree of certainty that Jacobson suffered an injury; (3) the closeness of the connection between the Chesonises’ conduct and the injury suffered; (4) the moral blame attached to the Chesonises’ conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the Chesonises and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost and prevalence of insurance for the risk involved. (Morris v. De La Torre (2005) 36 Cal.4th 260, 276.) We analyze the factors to determine whether an exception should be made to the fundamental principle that a person is liable for injuries caused by his failure to exercise reasonable care. (Rowland, supra, 69 Cal.2d at pp. 112-113.)
First, in regard to the foreseeability of the harm, the dog never displayed vicious tendencies prior to attacking Jacobson, and the dog had been residing with the Chesonises for approximately eight months at the time of the attack. Jacobson complained to Hanlon that the dog was growling at her prior to the attack; however, there is no proof that the Chesonises were aware of the dog growling. Accordingly, we conclude that it was not foreseeable to the Chesonises that the dog would attack Jacobson, because they lived with the dog for eight months and they were not aware of the dog displaying any vicious tendencies.
Second, it is not disputed that Jacobson suffered injuries.
Third, we examine the closeness of the connection between the Chesonises’ conduct and the injury suffered. Jacobson alleges that the Chesonises are liable because they allowed the dog to roam freely around their residence during the party. Jacobson does not analyze the Rowland factors, and therefore, it is unclear how closely connected her injury is to the Chesonises conduct, e.g., we do not know if there were intervening factors such as the acts of another party guest.
Fourth, moral blame cannot be assigned to the Chesonises because they did not know that the dog had vicious tendencies. Conversely, if the Chesonises knew that the dog had displayed vicious tendencies, but allowed it to roam their property freely during the party, then a measure of moral blame would be attributed to their conduct.
Fifth, in regard to a policy of preventing future harm, it is unclear how holding that the Chesonises had a duty to Jacobson would prevent future harm. Essentially, we do not see how our holding that a cohabitating landlord has a duty to prevent a tenant’s dog from causing injuries to a third party, when that dog had never displayed vicious behavior, will prevent harm. Such a holding would likely only lead to landlords restricting their tenants from owning pets; however, the cohabitating landlord could still own a pet. Therefore, it is unlikely that any potential harm would be prevented because dogs could still be freely roaming residences of cohabitating landlords and tenants.
Sixth, we address the extent of the burden to the Chesonises and consequences to the community of imposing a duty to exercise care with resulting liability for breach. It would be a rather large burden on the Chesonises to have a duty to protect third parties from injuries caused by their tenant’s dog. Essentially, the Chesonises would be put in the position of constantly checking where the dog was located in relation to the third party, and regularly intruding on their tenant’s privacy by inspecting whether the tenant was maintaining the dog’s health and happiness. Further, in regard to the consequences to the community, this court has previously observed that “the harboring of pets is... an important part of our way of life.” (Lundy, supra,170 Cal.App.3d at p. 821.) Landlords would likely be inclined to restrict their tenants from keeping dogs if landlords were responsible for injuries caused by dogs that previously had not displayed vicious tendencies. Therefore, the consequences to the community could be great, because it could disrupt an important part of our community’s way of life.
Seventh, insurance is widely available for the risk involved in keeping a dog on residential property.
In sum, our analysis of the Rowland factors leads us to the conclusion that the Chesonises did not have a legal duty of care to prevent injuries caused by the dog, because (1) the injuries were not foreseeable; (2) moral blame cannot be attributed to the Chesonises’ conduct; (3) it is unlikely future harm would be prevented by imposing a legal duty of care upon the Chesonises; (4) the burden of preventing injuries caused by a dog that had never displayed vicious tendencies would be great; and (5) the community could be negatively impacted by such a duty. Accordingly, we conclude that Jacobson has failed to establish the element of duty, and therefore the trial court’s order must be affirmed.
D. Buffington
During oral argument, Jacobson’s attorney repeatedly cited the case of Buffington v. Nicholson (1947) 78 Cal.App.2d 37 (Buffington); therefore, we will briefly address the case.
Buffington is a case involving a dog bite. Nicholson’s dog resided with Buffington for approximately two weeks, while Buffington attempted to breed her dog with Nicholson’s dog. (Buffington, supra, 78 Cal.App.2d at. 38.) While at Buffington’s house, Nicholson’s dog bit Buffington. Buffington prevailed at trial. (Id. at pp. 37-38.) On appeal, Nicholson contended “that the owner of a dog is not liable under the California dog bite statute when the person bitten has exclusive possession of the dog under a bailment agreement.” (Id. at p. 40.)
When the reviewing court analyzed the foregoing issue, it discussed the difference between a dog owner and a dog keeper. The appellate court determined, “‘The owner of an animal is the person to whom it belongs.’” The reviewing court concluded that a “keeper” is a person who harbors a pet on his property, and “‘[h]arboring means protecting.’” Therefore, the court reasoned, “‘one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law; but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper.’ [Citation.]” (Buffington, supra, 78 Cal.App.2d at p. 42.) Based upon the foregoing definitions, the appellate court concluded that “it is obvious that a keeper in contrast to an owner, is not an insurer of the good behavior of a dog, but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animals shall attach to him.” (Ibid.) The reviewing court found that substantial evidence supported the trial court’s determination that Buffington did not have knowledge of the dog’s vicious tendencies, and therefore affirmed the judgment. (Id. at p. 43.)
In Jacobson’s opposition to the motion for summary judgment, she wrote, “Indeed, the dog owners lived with [the Chesonises] and were allowed to keep the dog there with their express permission.” Based upon the foregoing declaration, we conclude that Jacobson conceded the Chesonises were not the owners of the dog. Assuming that the Chesonises could qualify as keepers, Jacobson would need to show that the Chesonises had knowledge of the vicious propensities of the dog before they could be found liable for Jacobson’s injuries. (Buffington, supra, 78 Cal.App.2d at p. 42.) We concluded ante, within our “foreseeability of the harm” analysis, that Jacobson did not show that the Chesonises had knowledge of the dog’s vicious propensities. Accordingly, we not persuaded by Jacobson’s reliance on Buffington.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: RAMIREZ, P. J., RICHLI, J.