Friday, May 11, 2001
Page 9
PERSPECTIVES
(Column)
Dog’s Status as ‘Man’s Best Friend’ Recognized by Courts in California
By ROGER M. GRACE
(Fifth in a series on dogs and the courts.)
California courts recognize the status of dogs as "man’s best friend"—as well they should. It is a truism discerned through the ages and validated each night when the dog owner returns home, to be greeted by a tale-wagging, face-licking buddy.
Though the Third District Court of Appeal was divided in Drake v. Dean (1993) 15 Cal. App. 4th 915 on an issue of liability, the justices were united in their acknowledgment of the dog’s status.
The appeal came in a case brought by a woman who was going door to door to spread a religious message. She came onto property whose occupants included a 65-pound American Staffordshire Terrier—a breed that’s also known as a "pit bull"—named Bandit. Though on a long chain, he had the run of the front yard. Contrary to the negative stereotypical image of the breed, Bandit was a friendly fellow who liked to jump on people. He jumped on the woman, knocking her down. She sued the homo sapien members of the household for her injuries.
The trial judge instructed on strict liability (a landowner who keeps a dog with known vicious propensities is strictly liable for injuries suffered by persons coming onto the property), but he did not instruct on negligence. The jury found for the defendants.
The appeals court’s majority reversed in an opinion by then-Presiding Justice Robert Puglia (since retired—as are all the jurists quoted here today). It held that failure to contain a friendly dog known to jump on people can constitute negligence. Puglia wrote:
"[E]ven though the jury found jumping on people not to be a dangerous propensity, we cannot say that a jury which exonerated Bandit of a vicious or dangerous propensity, if instructed on negligence, would necessarily have found that Bandit’s conduct was not potentially harmful even though the jury did not regard it as vicious or dangerous."
He commented in a footnote:
"We acknowledge that the dog is man’s best friend and have no desire to spurn or betray that friendship nor design to hold his master liable for conduct of the dog in acting as dogs characteristically and commonly act, i.e., peacefully and harmlessly. Moreover, we acknowledge that the owner is not liable in negligence for any harmful conduct of his dog that was not reasonably foreseeable. Here, however, there was evidence from which a jury instructed on negligence could have found Bandit’s conduct was harmful and reasonably foreseeable and that defendants did not exercise ordinary care in so controlling Bandit as to avert his known potential to cause harm."
Justice Keith Sparks dissented.
"Of course, it would be possible to require dogs to be confined in cages like wild animals, but that would completely frustrate the very purpose for which dogs are kept as pets," the jurist protested. He went on to insist it is "wholly inappropriate to impose liability for negligence on owners of peaceful dogs for failing to confine or constantly control them."
Somehow, it strikes me as asking for trouble to have a large dog who likes to jump on people in an unfenced front yard, unattended.
Sparks quoted at length from Nava v. McMillan (1981) 123 Cal.App.3d 262, 265, decided by Div. Two of this district’s Court of Appeal.
There, a teenage girl was walking along a street; the dogs in the yards of two homes barked from behind chain link fences; the girl was frightened and stepped off the curb; she was hit by a car. Through a guardian at litem, she sued the owners of the two houses, contending that her injuries were the "direct and proximate result of the negligence, recklessness and carelessness" of defendants..., who failed to restrain their dogs though they knew or should have known of the dogs’ vicious disposition."
Not surprisingly, Los Angeles Superior Court Judge Raymond Roberts sustained a demurrer without leave to amend. The girl appealed from the judgment of dismissal and, as one would expect, the judgment was affirmed.
Justice Edwin Beach wrote:
"[D]efendants could not reasonably foresee that the mere appearance of the dogs at the fence or their barking might cause plaintiff, who was on the public side of the fence, to become frightened and to run into the street where she was subsequently struck by an automobile.
"Our conclusion on the unforeseeability of harm in this case also applies to the factors of certainty of injury and closeness of the connection between the defendant’s conduct and the injury suffered. Also, no moral blame can be attached to defendant dog owners here as they kept the dogs on premises completely surrounded by chain link fencing. Needless to say, the consequences upon the community of imposing a duty as suggested by plaintiff would be totally unreasonable: the owner of a dog would in effect be required to keep ‘man’s best friend’ in a place where it could neither be seen nor heard by members of the public passing by. In short, the duty sought to be imposed by plaintiff offends common sense."
Recognition that man’s best friend is the dog also came in Stevens v. Rifkin (1984) 608 F. Supp. 710, decided by the U.S. District Court for the Northern District of California.
District Judge Robert Aguilar quoted from Beach’s opinion in acting on a motion to dismiss a cause of action brought by members of the White Panthers against an adjoining property owner based on the presence on the property of guard dogs. One of their claims was that the defendants were guilty of an "assault" because the dogs were menacing and caused them fright. Aguilar responded:
"The Court has been unable to locate any case law which discusses the liability of a dog owner for assault by the dog merely acting menacingly and threateningly, as opposed to actually biting or otherwise attacking. The Court is not willing to extend the assault doctrine to the activities which are the subject of plaintiffs’ Fourth Cause of Action herein."
He dismissed the cause of action to the extent it was predicated on assault, but granted leave to amend to allow the plaintiffs to develop the theories that the presence of the dogs constituted intentional infliction of emotional distress and a caused the plaintiff’s a loss of quiet enjoyment of the property.
Reference was also made to "man’s best friend" in a moving concurring and dissenting opinion by Justice M.O. Sabraw, who sat on the First District Court of Appeal.
Katsaris v. Cook (1986) 180 Cal. App. 3d 256 involved the killing of Steven Katsaris’ two Belgian sheep dogs when they wandered one morning onto the neighboring farm owned by Robert and Betty Harvey. The shooting was committed by a 19-year-old ranch hand, Melvin Cook. Cook testified at trial that Katsaris’ dogs were growling, and that this was upsetting to the cattle penned nearby. He also testified that on the evening of the shooting, he told Betty Harvey about it.
It was undisputed that on two occasions in the ensuing days, Katsaris twice came to the ranch and on both occasions, Betty Harvey disavowed any knowledge of the dogs’ whereabouts. (The whereabouts were a ditch on the Harvey’s property.)
The defendants’ motion for judgment pursuant to Code of Civil Procedure §631.8 was granted by the trial court as to all three causes of action—for damages based on destruction of the dogs, negligence, and intentional infliction of emotional distress. The judge relied on Food and Agricultural Code §31103 which provides:
"Any dog entering any enclosed or unenclosed property upon which livestock or poultry are confined may be seized or killed by the owner or tenant of the property or by any employee of the owner or tenant. No action, civil or criminal, shall be maintained against the owner, tenant, or employee for the seizure or killing of such dog."
The majority, in an opinion by Justice Marc Poche, said that the Legislature "gave livestock owners, in section 31103, a privilege to kill or seize trespassing dogs," precluding civil or criminal liability for doing so. He wrote:
"Any conduct necessary to the killing of a trespassing dog will be within the privilege. Decisions by the owner of livestock about when, where or how to kill a trespassing dog and dispose of its body, as well as the owner’s delegation of those decisions to his employees, is conduct which comes within the privilege."
However, he said, "Mrs. Harvey’s post shooting conduct was not within the scope of the privilege created by section 31103," so that the motion for judgment was improperly granted on the cause of action for intentional infliction of emotional distress to the extent that cause of action related to her lying about her knowledge of the dogs’ fate. The case was remanded for a new trial on that claim, which, Poche noted, would require that the plaintiff show that the defendant’s conduct was for the very purpose of causing emotional harm—a showing that could not likely be made.
Sabraw had this to say:
Today we speak of but the killing of two dogs—perhaps not a thing of great moment to some—but to others the loss of a dog leaves memories of loyalty and devotion seldom equalled in any other relationship.
In the words of Lord Byron: "Near this spot are deposited the remains of one who possessed beauty without vanity, strength without insolence, courage without ferocity, and all the virtues of Man, without the vices. This praise, which would be unmeaning flattery if inscribed over human ashes, is but a just tribute to the memory of Boatswain, a dog." (Lord Byron, Inscription to the monument of a Newfoundland dog (1808).)
When Mr. Katsaris returned home in the evening of May 17, 1982, to find his two Belgian Tervuren sheep dogs missing he immediately undertook what eventually turned into a 10-day vigil and nightmare in search of his "constant companions" and "[protectors]." He went to all of his neighbors with pictures of the dogs seeking information from anyone who might have seen them. He got up early in the morning and called and walked the woods. He went into town. He checked with the dog pound daily. The local radio station cooperated with announcements. A notice was placed in the local newspaper. He hired an airplane so he could search from the air. Each day he continued his search on foot for his friends. He searched at night after dark with a flashlight. On occasion sympathetic friends would join in the search. He visited two psychics in search of clues. He hired a helicopter to join in the search. In his contacts with his immediate neighbors, the Harveys, even photographs of the dogs did not produce any knowledge of their whereabouts or fate—nor did the passing of the 7th, the 8th or the 9th day. On the 10th day at a point of grief, disappointment and despair and at a time when he "was finding it harder to lose those dogs almost than when my daughter was killed," a phone call interrupted the unknowing. The dogs had been found by a friend in a ditch on the Harvey Ranch "maybe a quarter of a mile from my fence line, maybe an eighth of a mile." When he saw the dogs in the ditch "they had been there 10 days in the heat. There were maggots crawling from the cavities....We loaded the remains of the dogs, took them up to my place and buried them." The long vigil was over.
We are called upon to interpret statutes which authorize one man to kill another man’s dog. We know that in any civilized society the authority to kill any living being must be viewed with the greatest of caution. I submit under today’s rules we condone the killing of a dog only as a last resort. We have come a long way from the old common law concept of a dog not even being considered property. Not only is he more than property today, he is the subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man’s best friend.
My colleagues in the majority would have us conclude that mere trespassing by a dog anywhere on a neighbor’s land where livestock or poultry are kept is legal justification for killing the dog. There is neither legislative history, rules of construction, nor the thread of today’s civilized attitudes in support of the statutory interpretation given by the majority. We have come too far from the law of the Pecos for that brand of "taking the law into one’s own hands" remedy to survive today. We have in this age of surfacing humanitarianism recognized the need for pet doctors, pet hospitals, pet cemeteries and even a society for the prevention of cruelty to pets. All of this stands in stark contrast to the majority’s interpretation of the code sections in question as giving livestock owners the unbridled authority to decide "when, where or how to kill a trespassing dog and dispose of its body...."
Sabraw protested: "If the Legislature had intended section 31103 to authorize the killing of a dog running at large on property where livestock are present it would have said just that. Instead it provided that the dog must enter ‘enclosed’ or ‘unenclosed property’ where livestock are ‘confined’ before a killing is authorized."
The cattle were confined in a pen. The dogs did not enter the pen. As Sabraw saw it, the statute was inapplicable. This is a reasonable interpretation of the statute.
Unfortunately, the statute can also reasonably be read as Poche read it. It needs to be re-drafted to dispel any conception that it creates a James Bond-like "license to kill" trespassing dogs.
On Monday, I’ll talk about dog cases that entail federal
constitutional issues.