Chee v. Marina Seagate Condominiums, (2006) 143 Cal.App.4th 1360, 50 Cal.Rptr.3d 40.
Lila Chee (“Chee”) is a 71-year-old resident owner of a condominium at the Marina Seagate condominium complex. She was allegedly injured when a Jack Russell Terrier owned by Olga Kiymaz, at the time a tenant in the condominium next door, ran out of Kiymaz’s unit, unrestrained by a leash. The dog jumped on Chee, allegedly causing her to fall and sustain numerous injuries. Kiymaz rented the condominium from unit owner Jerome Brown. Chee filed a second amended complaint against Brown, the Marina Seagate Homeowners Association (“Association”), and others. Chee brought Brown and the Association (and Brown’s property managers who rented the unit to Kiymaz) into the lawsuit after Kiymaz filed for bankruptcy and was dismissed from the action.
Chee alleged that the Association, Brown and his managers were liable for her injuries by allowing a dangerous condition to exist, posing a risk of harm to persons in the common areas. She also alleged that the owner of the condominium unit, Brown, knew or should have known of the Jack Russell’s dangerous propensities.
What Chee did not allege was that the owner of the condominium unit or the Association had any actual knowledge the dog was dangerous, and it is assumed that there were no reported prior incidents. Chee attempted to get around this by alleging that Jack Russell Terriers, as a breed, could be dangerous, particularly if not restrained on a leash. She also alleged that the owner of the condominium unit had a duty to inspect and investigate the characteristics of a dog kept on the premises by his tenant.
The trial court granted motions for summary judgment filed on behalf of the Association, the owner and his managers on the basis that there were no questions of fact. Chee appealed that decision.
The court of appeal agreed with and affirmed the trial court’s ruling and pointed out that an owner/landlord does not owe a duty of care to protect a third party from his/her tenant’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities and has the ability to control and prevent the harm. The court also found that in the absence of actual knowledge of the dangerous propensities of the tenant’s dog, a landlord has no vicarious liability for the dog’s behavior.
Chee did present testimony of a dog expert who stated that Jack Russell Terriers should not be confined to a small area such as a condominium. That expert did not say and there was no evidence presented that the Kiymaz’s Jack Russell was dangerous and likely to attack. Because neither the Association nor any of the other defendants had any prior knowledge of problems with Kiymaz’s dog and did not have actual knowledge of any alleged dangerous propensities, they were not liable for negligence or any other cause of action to Chee.
This case confirms that California community associations are not liable for injuries caused by dogs unless the association has actual knowledge of the dog’s dangerous propensities. It is important to note, however, that a community association could be held responsible for some or all of an injured person’s damages if it becomes aware of a dog which has dangerous propensities to others, and fails to take immediate action to deal with the problem.
For example, if the association is aware of a dog that a resident is allowing into the common area unrestrained by a leash, and jumping on others or biting another person, or perhaps even being too aggressive (snarling and/or growling), the owner(s) of the unit where that dog is being maintained should be requested to attend a hearing with the board.
The association may not have to require that the dog be removed from the association or common area. There are other options, depending on the facts. For example, the Association can require that the dog be restrained and kept away from other persons or dogs, that the dog be required to attend obedience training, and/or wear a soft or hard muzzle. If the problems persist, then the board can consider prohibiting the dog from being on the common area (other than to access a vehicle going to and from the unit) or even removed from the association, but this would really require a strong showing that the owner cannot restrain the animal.
Some associations have attempted to prohibit some breeds of dogs because they have a bad reputation. Pit Bulls are a good example. However, except for rare breeds like the Presa Canario (one of which killed a woman in the hallway of an apartment building in San Francisco), most experts agree that almost all breeds of dogs cannot be automatically deemed as being aggressive and/or dangerous such that they should be banned from a community association. Rather, each dog should be evaluated on its own, based upon the actions of the dog and not on the breed alone. Not only could a breed-specific rule be considered arbitrary and unenforceable, it can also be difficult and likely expensive to enforce.
While this case stands for the proposition that a California community association cannot be held liable or responsible for injuries from dogs that were not and could not be anticipated, this ruling applies to other claims as well. In recent cases, the courts have held that property owners and community associations are not liable for injuries from unforeseeable assaults and other unforeseeable claims/injuries. What this also means is that if you know of criminal activity in or immediately around the community, if you know that the roof or pipes are leaking on a regular basis, if you know that the concrete has lifted causing a trip hazard, deal with the problem. This may require disclosure of actual work, repairs or both by the association.