A trespasser can hold a dog owner liable for a dog bite injury, but only by proving that the owner was somehow negligent. Unlike many other dog bite victims, trespassers cannot use California’s dog bite statute, which provides the strongest protections to dog bite victims. Instead, trespassers have to show that the dog owner’s negligence contributed to their legal damages from the dog bite. This can involve establishing liability under the one bite rule.
In this article, our California dog bite attorneys explain:
- 1. Can trespassers hold dog owners liable?
- 2. How can a trespasser show that their injuries were the result of negligence?
- 3. What is a trespasser?
- 4. What is the difference between strict liability and negligence?
- 5. Can the dog owner claim the trespasser was partially at fault?
1. Can trespassers hold dog owners liable if their dog bites them in California?
Trespassers can hold dog owners liable for dog bite injuries. However, trespassers face a far more difficult time proving their case. They cannot use the protections granted by California’s dog bite statute. Instead, bitten trespassers have to prove that the owner was being negligent, and this negligence caused their injuries.
California Civil Code 3342 is the state’s dog bite statute. It holds dog owners strictly liable for dog bites that happen either:
- On public property, or
- Where the dog bite victim had a lawful right to be.
Because trespassers are neither on public property nor where they have a lawful right to be, they are left unprotected by Civil Code 3342. They cannot rely on strict liability to win their case.
However, trespassers can still recover compensation by showing that someone behaved negligently. If the dog owner or someone else was negligent, and that negligence caused the trespasser’s injuries, they can be held liable for them.
2. How can a trespasser show that their injuries were the result of negligence?
A trespasser can show that the person responsible for the dog was negligent by either showing that they:
- Were negligent in failing to prevent the dog bite,1 or
- Knew or should have known that the dog had vicious or dangerous propensities.2
2.1. Holding dog owners liable for failing to prevent a dog bite
Trespassers who get bitten by a dog can hold the dog’s keeper liable for negligently failing to prevent the bite.
Dog owners and people caring for the dog have a legal duty to not cause an unreasonable risk of harm to others.3 The risk can become unreasonable if it is foreseeable that the dog could bite someone.4 If they fail in this regard and their negligence causes the dog bite, they can be held liable.
2.2. Holding the dog owner liable for ignoring their dog’s violent propensities
Dog owners and dog keepers can be held strictly liable for dog bites if they knew or should have known that their dog was dangerous.5 Proving that the dog keeper was aware of the dog’s violent temper often involves showing that they bit someone, before.6 This is known as the one bite rule.
Victims who want to hold the dog’s owner or keeper liable for knowing of their dog’s dangerous tendencies have to show:
- The defendant owned, kept, or otherwise controlled a dog,
- The dog had an unusually dangerous nature or violent tendencies,
- Before the attack, the defendant knew or should have known of the potential danger posed by their dog, and
- The dog’s dangerous nature or tendencies were a substantial factor in the victim’s injuries.7
The law in California imposes strict liability on the keepers of dogs known to be dangerous because these dogs are kept at the owner’s risk. Owners of these dogs are held liable for their dog’s attacks and bites, no matter how carefully they controlled their dog.
3. What is a trespasser?
A trespasser is someone who is unlawfully on someone else’s property.8 You can be on someone else’s property unlawfully if you:
- Were not invited on the property – whether expressly or through implication,
- Are not performing an official duty on the property,
- Strayed past the extent of your invitation, or
- Refused to leave once your invitation was revoked.
Example: Jim is a mailman. He is performing an official duty when he opens the gate, walks up the porch steps, and drops letters in the mailbox by the front door.
Example: Kate sets up a tag sale in her front yard and advertises it online. The people who come to the tag sale have an implied invitation to look through the merchandise. Kate can revoke that invitation by telling someone to leave. A patron can become a trespasser if they open the gate and enter Kate’s backyard.
4. What is the difference between strict liability and negligence?
Strict liability means liability without fault. Negligence means conduct that, while not intentional, was nonetheless dangerous or harmful.
In the context of dog bites, strict liability makes it far easier to prove a victim’s case for compensation. The owner of the dog could have done everything possible to prevent the bite. If all of these precautions did not prevent the attack, the owner can be held liable.
Having to prove that the owner or keeper of the dog was negligent is more difficult. Victims often have to prove that a particular action or omission was the cause of the bite and their injury.
5. Can the dog owner claim the trespasser was partially at fault?
One of the most important defenses that a dog owner has in a dog bite claim brought by a trespasser is that the trespasser was partially at fault.
California uses a comparative fault rule. This rule reduces the amount of compensation that a victim can recover by the percentage of fault they contributed to their injuries. It is up to the jury to decide how much fault the victim brought to their situation.
Example: Sarah is wandering through the woods. She does not know it, but she has entered Jasper’s property. Jasper’s dog, Butch, attacks Sarah. She suffers $100,000 in damages and sues Jasper. The jury finds Sarah 40% at fault for trespassing. She can only recover $60,000 in compensation.
Call us for help…
Trespassers are often the ones who get bitten by a dog. While California’s dog bite statute does not protect them, the rules of negligence do. Contact our California dog bite lawyers today to get started on your case.
- Salinas v. Martin. 166 Cal. App. 4th (Cal. App. 2008).
- Drake v. Dean, 19 Cal. Rptr.2d 325 (Cal. App. 1993).
- Salinas v. Martin, Supra.
- See Hernandez v. Cervantes, No. B224933 (Cal. App. 2011).
- See Drake v. Dean, Supra.
- See Hicks v. Sullivan, 122 Cal. App. 635 (Cal. App. 1932).
- California Civil Jury Instructions 462.
- See California Penal Code 602.