"Affirmed. Newport v. Moran, 80 Or. App. 71, 721 P.2d 465, rev den 302 Or. 35, 726 P.2d 934 (1986); Kathren v. Olenik, 46 Or. App. 713, 613 P.2d 69 (1980)."
"(b) he is negligent in failing to prevent the harm." See Kathren v. Olenik, 46 Or. App. 713, 719, 613 P.2d 69 (1980). As this court noted in Kathren:
That court found evidence upon which the strict liability propensity case could have been presented to the jury, and then by reference to Restatement (Second) of Torts, supra, § 518, also found a trial basis for a negligence claim. Another rule evidenced in these cases is if the name of the dog is given in the opinion, the decision for defendant dog owner is more likely, e.g., Gideon in Slack v. Villari, 59 Md. App. 462, 476 A.2d 227, cert. denied 301 Md. 177, 482 A.2d 502 (1984); Rowdy in Newport v. Moran, 80 Or. App. 71, 721 P.2d 465 (1986); and Mordecai in Kathren v. Olenik, 46 Or. App. 713, 613 P.2d 69 (1980). Compare the female doberman called Tyke in Garson v. Juarique, 99 Cal.App.3d 769, 160 Cal.Rptr. 461 (1979).
In such cases the owner was only liable if, having knowledge of the particular propensities which created a foreseeable risk of harm, he failed to exercise reasonable care in control of the animal." ( Williams v. Johnson, supra, 781 P.2d at p. 923, citing Rest.2d, § 518; Kathren v. Olenik (1980) 46 Or. App. 713 [ 613 P.2d 69, 73], citing Rest.2d, § 518.) (11) Defendants rely on Hillman v. Garcia-Ruby, supra, 44 Cal.2d 625, for the proposition that there can be no liability based on negligence for injury caused by a domestic animal unless the animal has dangerous propensities of which the owner knows or should have known.
Section 518 of the Restatement has also been applied in dog bite cases. In Kathren v. Olenik, 46 Or. App. 713, 719, 613 P.2d 69, 73 (1980), the court said that no duty to control or confine the animal is imposed on the owner absent "knowledge or a basis for knowledge" that the animal will behave in a potentially injurious manner. The court said that the defendants were not charged with a general knowledge that dogs will bite human beings.
An owner may be found negligent for a failure to control or confine the animal. Westberry v. Blackwell, 282 Or. 129, 133, 577 P.2d 75 (1978); Kathren v. Olenik, 46 Or. App. 713, 719, 613 P.2d 69 (1980). Such negligence "is based on a duty to take reasonable precautions to prevent a foreseeable risk of injury by the animal."
Under Oregon law, negligent failure to confine or control a dog "is based on a duty to take reasonable precautions to prevent a foreseeable risk of injury by" the dog and "must be analyzed in terms of the knowledge on the part of the owner that the dog will cause the injury actually incurred by plaintiff if it is not controlled or confined." Kathren v. Olenik, 46 Or. App. 713, 719 (1980). A plaintiff's status as an invitee under premises liability law has no bearing on a defendant's liability for failure to restrain a dog.
1978); Hughes v. W S Constr. Co., 196 So.2d 339 (Miss. 1967) (recognizing rule); Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App. 1982); Ambrogini v. Todd, 197 Mont. 111, 642 P.2d 1013 (1982); Jensen v. Nielson, 91 Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Olenik, 46 Or. App. 713, 613 P.2d 69, 75 (1980); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982); Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App. 1976); Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978); Rhiness v. Dansie, 24 Utah 2d 375, 472 P.2d 428 (1970); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950); Dawson v. Woodson, 180 W. Va. 307, 376 S.E.2d 321 (1988); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo. 1961). The rules regarding negligence in such situations are the same as in ordinary negligence cases.
Westberry, 282 Or. at 133, 577 P.2d at 76-77. In Kathren v. Olenik, 46 Or. App. 713, 613 P.2d 69 (1980), the court observed: "We do not read the opinion in Westberry as imposing a duty on a dog owner to control or confine the animal absent knowledge or a basis for knowledge by the owner that the dog will behave in a potentially injurious manner.
Plaintiff's claim is governed by the latter principle. We explained in Kathren v. Olenik, 46 Or. App. 713, 719, 613 P.2d 69 (1980), how the principle works: "Negligence, in terms of an omission to confine or control an animal, is based on a duty to take reasonable precautions to prevent a foreseeable risk of injury by the animal.