Tuesday, October 17, 2006
Page 3
Landlord Unfamiliar With Tenant’s Dog Not Liable for Injuries It Caused—C.A.
By Tina Bay, Staff Writer
A condominium owner who was not shown to have actual knowledge that his tenant’s dog had dangerous propensities was not subject to liability for injuries the animal caused to a neighbor, the First District Court of Appeal ruled yesterday.
Affirming a summary judgment order by Alameda Superior Court Judge Stephen A. Brick, Div. One dismissed Lila Chee’s lawsuit against the owner and property manager of another unit over injuries she suffered when the dog owned by that unit’s tenant knocked her down.
The justices agreed that evidence proffered by the plaintiff failed to create a triable issue as to whether Jerome Brown, who owned the unit next to Chee’s in Marina Seagate condominium complex, actually knew the Jack Russell Terrier belonging to his tenant was dangerous.
On March 19, 2001, the terrier ran out of Brown’s unit, then rented by Olga Kiymaz, and jumped on the then-71-year-old Chee. The impact of the attack allegedly caused Chee to fall and sustain numerous injuries.
Kiymaz was eventually dismissed from the suit after filing for bankruptcy.
As against Brown, Chee’s second amended complaint stated causes of action for premises liability and negligence, and nuisance alleging that Brown allowed a dangerous condition to exist on the property. Based on the covenants, conditions and restrictions concerning pet ownership by tenants, Chee also sued Brown under theories of breach of contract and vicarious liability.
With respect to Amanda Goldt Property Management., which Brown had hired to find a tenant and collect rents, Chee alleged nuisance and negligence based on its failure to investigate the nature and suitability of Kiymaz’s dog.
Brown and Goldt contended in separate motions for summary judgment that, prior to the attack on Chee, they had no knowledge that the terrier had dangerous or vicious propensities. Brown’s supporting material included evidence that he had never seen the dog or received any complaints about it prior to the incident.
In her opposition, Chee asserted that the credibility of the defense witnesses was in issue and submitted evidence that in July 2001, the homeowners association and other unit owners complained numerous times to Kiymaz about her dog. She also offered an expert’s declaration that dogs of the Jack Russell Terrier breed were unsuitable for living in condominium complexes because they were “dangerously playful” and would try to escape confinement.
Agreeing with Brick, Justice William D. Stein, writing for Div. One, explained:
“Plaintiff submitted evidence that +after+ the incident, the Association notified Kiymaz that, in July 2001, she was seen walking her dog without a leash, and fined her $50, and also warned Kiymaz that it had received complaints that she was allowing the dog to run free in the common areas and was not cleaning up after her pet, and that these actions could also result in fines. Plaintiff also submitted evidence that other residents had seen the dog off-leash, and urinating and defecating in the common areas. This…evidence did not permit any inference that Brown knew of the dog’s behavior before the incident alleged to have cause plaintiff’s injuries.”
Stein further explained that the CC&R’s—which provided that any pet owner “shall assure that such pet is restrained at all times it is upon the common areas”—did not make Brown vicariously liable for Kiymaz’s conduct respecting her dog, absent proof that he knew of its nature.
Chee “cites no authority for the novel proposition that CC&R’s, which are private recorded restrictions on the use of property, may also operate as a legal basis for expanding the duty of care on the lessor of property subject to the CC&R’s to protect others from a dog owned and controlled by a tenant,” the justice wrote.
Similarly, Stein said, Chee failed to create a triable issue with respect to her claim that Goldt had the requisite knowledge, much less that it authorized or participated in Kiymaz’s acts.
The opinion was joined by Justices Douglas E. Swager and Sandra L. Margulies.
The case is Chee v. Amanda Goldt Property Management, 06 S.O.S. 5512.
Copyright 2006, Metropolitan News Company