Pit bulls and landlord liability - Part I

November 9, 12:15 AMSeattle Pet Laws ExaminerJean-Pierre Ruiz

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A typical pit bull

This three-part article explores the liability of landlords when a pit bull (and only a pit bull) belonging to a tenant attacks and injures a third party. First, we will take a look at a recent decision rendered by the Massachusetts Court of Appeals in such a case. Second, we will examine the law and recent cases in Washington State.

The pit bull, named Tiny, involved in the Massachusetts case was owned by Michael Keane who rented an apartment from the building owner, Emile Florio. The plaintiff, a ten-year old boy named Killian Nutt, lived with his family in the same building. Keane had adopted Tiny from his son who had found the dog in the woods.

On the fateful day, July 18, 2005, Keane,  a friend, and Tiny where sitting on the front porch steps of the apartment building. Killian  was playing with a sprinkler in the driveway of an adjacent property. Apparently unprovoked, Tiny bolted from the porch, ran down the stairs, leapt into the air and over the retaining wall separating the properties and bit the plaintiff multiple times on the leg causing severe damage and requiring a four-day stay at a local hospital. At the time, Tiny was unlicensed, had not been vaccinated against rabies and was unleashed in violation of municipal laws.

At trial, Killian's father, Lawrence Nutt, and Killian's mother, Elise Hamblett, testified that Tiny had exhibited aggressive behavior in the past. They called the landlord on several occasions to complain that Tiny was allowed to run around unleashed and aggressive, causing them to be concerned for their safety. Another tenant had also complained to Florio's son about an incident in which another pit bull owned by Keane had run toward her in an aggressive manner, but had stopped short. 

Florio testified that he did not allow tenants to keep dogs on the premises unless he gave permission, and that he had not approved Tiny. Florio also testified that he had previously made Lawrence Nutt get rid of two dogs he kept in his apartment. Nutt supported Florio's testimony.

After the incident, Nutt filed suit against Florio alleging negligence in that Florio had breached his duty of reasonable care to keep the tenants free from an unreasonable risk of harm. The trial judge ruled that the Nutts' fear of Tiny were "subjective", and had failed to prove that Tiny had any dangerous propensities, and entered summary judgment for the defendant on the negligence claim.

Under Massachusetts "Dog Bite statute (G.L.c. 140, Section 155) law, a dog owner is strictly liable for any injury caused by the owner's dog without proof that the owner or keeper was at fault or knew, or had reason to know, that the dog had an extraordinary, dangerous propensity, and even without proof that the dog had, in fact, any such propensity. However, the Court of Appeals correctly noted that the Dog-Bite statute did not apply since the claim had been filed against the landlord who neither owned not kept Tiny.

Applying common law, the Court of Appeals noted that the owner of a property owes a duty of reasonable care to the his/her tenants, but that such a duty did not make a landlord an insurer of the property. Hence, Nutt could only recover if he could show that Florio knew or should have known that Tiny had dangerous propensities. Therefore, the fact that Tiny was on the property was insufficient to prove negligence.  

The Court of Appeals then took note of a decision by the Supreme Judicial Court in which, in a criminal context, the court observed that pit bull is a breed commonly known to be aggressive. (Commonwealth v. Santiago, 452 Mass. 573 (2008).  The Court noted that, while Florio "could not be held strictly liable by virtue of Tiny's breed, knowledge of that breed and its propensities may properly be a factor to be considered in determining whether [Florio was] negligent under common law principles." The Court of Appeals then overturned the trial court's decision and remanded the case for further proceedings.

The Court of Appeals in this case, in effect, ruled that a plaintiff need not show that a dog attacked or showed aggressive tendencies in the past if the dog is a pit bull. Rather, the simple fact that a pit bull is involved, regardless of whether it had shown aggressive tendencies or attacked anyone, may be sufficient to make a landlord liable, at leasts in Massachusetts..

For More Information: EcoStar Law, PLLC: www.ecostarlaw.com.