Courts reject suing landlords for attacks by dogs kept by indigent tenants

“Don’t ask,  don’t tell” exempts landlords from risk

            MONTPELIER, Vermont––A newly published Vermont Supreme Court decision,  rendered on September 3,  2021,   affirms previous jurisprudence weakening the ability of dog attack victims and survivors to sue landlords in cases involving tenants’ dogs.

The verdict in Katherine Higgins v. Shawn Bailey & Suzan Bailey appears to give landlords a free pass from liability for dog attacks if they observe a “don’t ask,  don’t tell” policy pertaining to dangerous dogs.

The verdict exempts landlords from any obligation to respond to the presence of a pit bull, Rottweiler,  or other dog of a breed associated with elevated risk of attacking someone,  if the dog has not already done harm.

Urban legend is not the law

Urban legend holds that suing a landlord is the easily accessible alternative to suing a tenant who has no insurance and no resources to pay for the medical costs and other damages inflicted by the tenant’s dog,  but Higgins vs. Bailey decision is only the latest of many holding that landlords are not responsible for the actions of a tenant’s dog under otherwise normal circumstances.

Summarized Rutland Herald staff writer Eric Blaisdell,  “Suzan and Shawn Bailey,  living in Arkansas,  rented their house in Marshfield,  Vermont,  to Skyler Bagalio,”  a 2014 graduate of Hazen Union High School in Hardwick,  Vermont.

Bagalio “brought a dog with him,”  Blaisdell continued,  “an American pit bull terrier who had previously bitten a child in the face,  causing serious injury.  The Baileys did not know about the bite when they rented to Bagalio, and said they didn’t ask him any questions about the dog.

Plaintiff dropped case against pit bull owner

“The decision doesn’t say when,”  Blaisdell wrote,  “but at some point Katherine Higgins,  a neighbor,  was attacked by the dog and seriously injured when she was a guest of Bagalio’s at the home.  Higgins then sued the Baileys,”  as well as Bagalio,  “for negligence.”

“The landlords asked for summary judgment in their favor,  according to the decision,”  Blaisdell explained,  “because Higgins hadn’t given any evidence to show the Baileys knew about the dog’s ‘dangerous propensities.’

“Judge Robert Bent granted that motion, so Higgins appealed the decision to the Vermont Supreme Court.

“Higgins also had sued Bagalio,”  who apparently had little means of making restitution,  “but that lawsuit was dropped by Higgins prior to Bent’s decision granting summary judgment for the Baileys,”  Blaisdell finished.

Gross v. Turner

A six-member Vermont Supreme Court panel held that the court had previous resolved the relevant legal issues in a 2018 case,  Gross v. Turner.

“In Gross,”  the verdict in Higgins v. Bailey recounted,  “a pedestrian was walking by a leased residence.  Social guests of the tenants accidentally let the tenants’ dogs out of the house.  They charged at the pedestrian and injured him.  The pedestrian sued both the social guests and the landlord.  As in [Higgins v. Bailey],  the injured party was a ‘third person outside the landlord’s property.’

“It was clear in Gross that the landlord had no knowledge that the dogs were dangerous,”  the Vermont Supreme Court found.  “The principal issue was whether the landlord had any duty to ‘investigate’ whether the dogs were dangerous,  as the pedestrian alleged that if the landlord had investigated,  the dogs’ dangerousness would have been revealed.

Landlord does not have to ask if dog is dangerous

The Vermont Supreme Court reasoned in Gross v. Turner that,  “A landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons.”

However,  the Vermont Supreme Court also found,  “The knew-or-should­-have-known standard ‘does not create an obligation on the part of the landlord to actively inquire into the dog’s history before permitting it to reside on the premises.’”

Further,  the Vermont Supreme Court held in Gross vs. Turner,  and affirmed in Higgins vs. Bailey,  “The mere fact that the dog is a member of a suspected ‘dangerous breed’ is insufficient to put its owners or others on notice that it poses an unreasonable risk of harm,  or that pit bulls or other breeds are dangerous per se.  In Vermont,  liability in dog bite cases has always depended on the propensities of the individual animal.”

This means,  essentially,  that Vermont observes a “one free bite rule,”  like most other states,  and if the first known bite happens to kill or disfigure someone,  the victim and/or survivors will have difficult establishing any sort of negligence claim against either the dog owner or the property owner where the dog resides.

Kenneth Phillips comments

Affirmed California personal injury attorney and dogbitelaw.com blogger Kenneth Phillips,  in an email to ANIMALS 24-7,  “In the Higgins case,  the Vermont Supreme Court held that the one bite rule applies to landlords.  In other words,  a person who was bitten by a dog who lived with a tenant can win a dog bite case against the tenant’s landlord only by proving that the landlord had prior knowledge that the dog either had bitten somebody in the past without legal justification,  or clearly had indicated it would bite somebody without legal justification in the future.

“The Vermont Supreme Court did not mention the other requirement” for winning a negligence claim against a landlord,  Phillips said,  “which is that the victim also must prove that the landlord had an opportunity to correct the situation by not renting to the dog owner,  evicting the dog owner,  or causing the dog owner to get rid of the dog.

“There is a common misconception,”  Phillips explained,  “that the owner of property is automatically responsible for dog attacks on the property.  That is not true.  The one bite rule must be satisfied in almost all cases.  The victim must prove that either the landlord or his agent personally knew about the dog’s viciousness.  The agent could be his property management company,  on-site manager,  or a relative who collects the rent.

“I say almost all cases,”  Phillips added,  “because there is one important exception.  There are a few states that simply do not allow lawsuits against landlords based on injuries caused by tenants.”

“I have won many cases against landlords”

Qualified Phillips,  “I have won many cases against landlords but their liability had to be based on something solid.”

Phillips cited two specific cases.

The first resulted from the April 11, 2013 fatal mauling of house cleaner Claudia Gallardo, 38, in Stockton,  California,  by a pit bull named Russia.

Russia belonged to Brian Hrenko, 60,  who had become briefly a pit bull rescue celebrity on March 9, 1995 after jumping off the San Mateo Bridge in a futile attempt to save another of his pit bulls,  Nitro,  from drowning.

Hrenko was in 2015 convicted of involuntary manslaughter and sentenced to serve four years in jail for Gallardo’s death.

(See Man who had “15 minutes of fame” for attempted pit bull rescue to be sentenced for involuntary homicide by pit bull.)

Represented Gallardo’s three children

Phillips represented Gallardo’s three children in a civil lawsuit against the owner and the manager of the property where Gallardo was killed.

“In California and perhaps elsewhere,”  Phillips explained,  “it has been established that a property owner has a legal duty to inspect the property prior to renting it out.  The property where Claudia Gallardo was killed had two houses on it,  with a driveway running between the two of them,  going to the back yard area.

“Between the front of the driveway area and the sidewalk,  a distance of about 25 feet,”  Phillips said,  “there was a fence with a gate.  The gate was defective in that it would not stay closed when it was latched. The vicious pit bull went from the back yard through the gate to attack Claudia as she was talking to somebody on the driveway in front of the property.

Conditions that created case for negligence

“My case ,”  Phillips recounted,  “was based on the negligence of the real estate development company that bought the property,  but never inspected the gate or anything behind the gate. They did not know it was defective.  They also did not know that the dog and owner Brian Hrenko were living in a shed a few feet behind the gate.

“Hrenko had been their tenant in one of the two houses,”  Phillips learned,  “so he was squatting on their property without their knowledge.  On the day the owners were there,  the local sheriff was with them for the purpose of evicting Hrenko.  One of his dogs was visible behind the fence,  which should have drawn their attention to the gate and maybe even that shed.  They simply didn’t look. A short time later,  Claudia was killed.

“In that case,”  Phillips told ANIMALS 24-7,  “I did not use the one bite rule,  but instead relied on the doctrine of negligence as it applied to property owners.”

Phillips won a settlement for the Gallardo children,  two of whom were minors.

New Orleans mauling

The other case Phillips described to ANIMALS 24-7,  he said,  “is a dramatic illustration of how important the agency theory is [i.e. the argument that the defendant in some manner was a causal agent in a dog attack] when going after a landlord.

“A few years back,”  Phillips described,  “a very young little girl was walking home from school in a bad area of New Orleans.  As she passed some rundown bungalows,  a couple of vicious pit bulls raced out of one of the cottages through a broken door and attacked her.  They savagely mauled her head,  her throat,  her torso,  her arms and her legs.  Doctors kept her in a medically induced coma for one month so they could operate on her over and over again.”

New Orleans Times-Picayune reporter Brendan McCarthy covered a case matching those details that occurred on March 31,  2010.

Pit bulls belonged to homeless people

“Soon after I accepted the case,”  Phillips said,  “it was established that the dogs belonged to two homeless people who were living in one of the cottages.  The owner of the cottages was a family trust and it was clear that nobody in the family had any idea that these people or dogs were there.

“I sent my investigator to New Orleans and he walked the neighborhood,”  Phillips continued. “He met the manager of the property where the cottages were located.  From him,  we learned that the manager was friendly with one of the homeless people for a number of years.

“Based on that,”  Phillips said,  “I filed suit against the family trust,  contending that the manager had given the homeless people permission to live in the cottage,  and knew that the pit bulls were there,  but failed to fix the door that would have kept the pit bulls inside when the girl was passing by.  After some depositions and other litigation formalities,  I got the case settled,  and the girl will receive $1 million from the settlement.”

Only one tenant in five is insured

Emphasized Phillips,  “Landlord liability is very important to dog bite victims because only one out of five tenants have personal liability insurance coverage,  commonly referred to as ‘renters insurance.’  This means that tenants who own dogs and are not insured pose themselves,  victims,  and landlords a great deal of trouble when their dogs injure people.

“Trouble visits the tenant/dog owner in the form of a lawsuit that could pose lifelong consequences,”  Phillips told ANIMALS 24-7.

“Trouble is in store for the victim who isn’t reimbursed for medical expenses,  loss of income, and other damages such as suffering, disability and disfigurement.

“And trouble comes to the landlord in the form of lawsuits like the Higgins case.

“So what should people do to avoid all this trouble?

“Be insured” are the words

“Dog owners,”  Phillips said,  “should make sure that the homeowners insurance or renters insurance applicable to them has no exclusion for injuries caused by dogs or animals,  or by their particular breed or type of dog.  If there is such an exclusion,  they should buy canine liability insurance.

“More information about insurance for dog owners can be found on my website,  https://dogbitelaw.com/,  along with links to companies that would provide it.

“Dog owners also should make sure their insurance policy doesn’t have a special low limit for injuries caused by dogs,”  Phillips added.  “For example,  I had a case where a well-off tenant had a $500,000 limit for personal injuries,  but wasn’t aware of the $50,000 special limit for harm caused by her dog.

“Obviously every renter who owns a dog should have renters insurance,”  Phillips suggested.  “It protects their personal belongings in the event of burglaries or fires,  and the personal liability coverage in the policy will pay all the costs if the renter’s dog injures somebody.”

Renters insurance reassures landlords

Renters insurance “also helps when you are leasing a new place,”  Phillips pointed out, “because it will make the landlord feel better about your dog.

“Every landlord should demand that the renter with a dog maintain a renters insurance policy that does not have the exclusions or low limits mentioned above,”  Phillips wrote.

“My website also offers an addendum to a lease agreement that will protect landlords,”  Phillips mentioned,  “and also protect the tenant who owns a dog and is insured.

“One final comment,”  Phillips finished.  “Since establishing the https://dogbitelaw.com/ web site in 1998,  I have received over a million inquiries about dog owner insurance and landlord liability.  I have learned that landlords and tenants don’t realize how easy it is to avoid serious consequences in these situations.  I believe that it is very important for landlords and tenants to know about these issues.”

North Carolina Supreme Court also favors landlords

The Vermont Supreme Court decision in Higgins vs. Bailey,  besides paralleling the earlier Gross vs. Turner case in Vermont,  paralleled an April 2021 North Carolina Supreme Court verdict.

Reported Gary D. Robertson for Associated Press,  “A landlord can’t be held liable for a child’s injuries caused by a dog owned by tenants because he wasn’t told the animal posed a danger to visitors, the North Carolina Supreme Court ruled unanimously.

“The court upheld lower court rulings siding with John Johnson III,  following a 2015 attack on a 7-year-old boy while he played with the tenants’ children.  The boy suffered severe injuries when the dog bit his face as he walked within the radius of the dog’s chain.

“Beware of dog” sign does not create liability

“The tenants,  Raymond Craven and Stacie Talada,”  Robertson explained,  “had decided to put the dog on the chain when children came to play on the Johnston County rental property after another youth suffered a minor injury from the dog months before,  according to the [North Carolina Supreme Court] opinion.”

Craven and Talada “also bought three ‘beware of dog’ signs,”  Robertson summarized.  “But posted signs and the chain in the yard aren’t enough under the law for the landlord to know that the dog posed a danger, Chief Justice Paul Newby wrote for the court.”

Explained Newby of the ruling,  “Evidence of such precautions alone is not sufficient to give a reasonable landlord constructive notice that his tenant is harboring a dog with dangerous propensities.”

If the North Carolina Supreme Court had held that posting a “Beware of dog” sign by itself creates liability,  the net effect would have been to discourage people from posting such warnings.

Massachusetts Appeals Court finds for landlords,  too

Insurance Journal east region editor Elizabeth Blosfield on March 8, 2021 described a similar ruling by the Massachusetts Appeals Court.

In that case,  plaintiff Victor Creatini testified that he was riding his bicycle “with his dog on a leash beside him,”  Blosfield wrote,  “when a pit bull ran into the street and attacked his dog,  causing him to fall from his bike and suffer injuries.

Creatini argued that the property owner “breached a legal duty to protect him from the pit bull,”  Blosfield summarized,  since the property was unfenced.

In that case,  landlord Mark McHugh lived in the same building,  had known for a year that tenant Sean Mills had a pit bull,  and had previously asked Mills to get rid of the dog,  according to testimony.

The Massachusetts Appeals Court agreed that “a landlord could be expected to take steps to protect a tenant from harm by another tenant’s pit bull on the property,”  Blosfield explained.

“However,”  the Massachusetts Appeals Court decision said,  “no Massachusetts appellate court has extended such a duty to a passersby injured by a tenant’s dog after the dog leaves the landlord’s property.  We decline to do so here.”

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