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Court of Appeal:
Property Manager May Be Liable for Attack by Squatter’s Dogs
Fact That Animals Were Not Owned by Trustee of Trust That Holds Title to Realty Is Not Determinative, Opinion Says; What Matters, It Declares, Is Control of the Land and Whether There Was a Failure to Prevent Foreseeable Harm
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday held that the trustee of a trust that owns a parcel of unoccupied property might be liable to a woman who was attacked, while on the sidewalk, by two large pit bulls belonging to a squatter.
The squatter was William Hewett, the former owner of the property, who, following a foreclosure sale, refused to move. He or a real estate agent had left the gate open.
Yesterday’s unpublished opinion reverses a summary judgment granted by Riverside Superior Court Judge Godofredo Magno in favor of the trustee, David Kerrigan. In ruling, Magno explained:
“Here, Defendant submits a declaration stating he never owned the dogs or the property where the dogs came from and attacked Plaintiff….In opposition, Plaintiff provides no evidence to the contrary. There is no evidence to create a triable issue as to whether Kerrigan owned or kept the dogs or the property.”
Ownership of the dogs was not germane, Justice Martha K. Gooding said in yesterday’s opinion; declaring that what matters is whether Kerrigan had control of the property and failed to take reasonable steps to protect passersby from harm in light of foreseeable peril.
Civil Code §1714
She pointed to Civil Code §1714 which says:
“Everyone is responsible...for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property....”
Finding that Kerrigan had control of the property notwithstanding occupancy by Hewitt, the jurist wrote:
“Kerrigan was not a landlord, and Hewett, the dogs’ owner, was not a tenant with the right to exclusive control and possession of the property. Hewett was a squatter and therefore was not in lawful possession of the property….And the evidence before the trial court showed that at the time of the attack, (1) Kerrigan was aware the dogs were living with Hewett on the property, (2) the property was listed for sale and Kerrigan, through his agent, was inviting potential buyers and/or their agents to enter and exit the property through the front gate that secured the property, and (3) the landowner owned and controlled the property from which the dogs escaped.
“Under these facts, there is no public policy reason like that applicable to landlords to deviate from the general statutory duty imposed on landowners by Civil Code section 1714.”
Foreseeability Factor
Gooding went on to say:
“The issue here is whether the presence of two large pit bulls roaming unrestrained on the property at a time when the property was occupied by a squatter and in the process of being sold created a general risk of foreseeable injury—the possibility the dogs would attack a passerby. We conclude the answer is yes. It was foreseeable the gate might be left open while the property was being shown to potential buyers, or by Hewett, and the dogs would escape and harm someone.”
Summary judgment was in favor of Kerrigan, as an individual, was proper, she said, because the trust, not he, owned the property.
She mentioned in a footnote that just after the attack by the pit bulls on the plaintiff, Mirna Mirella Estala, the body of Hewett was found “in an advanced stage of decomposition.”
The case is Estala v. Kerrigan, G063582.
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