(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)
THE RESPONSE PROVIDED BY THE COURT TO JURY QUESTION #1 WAS MISLEADING AND DID NOT ADDRESS THE SPECIFIC QUESTION POSED BY THE JURY.
The jury in question #1 asked whether “time of length of stay” is a factor? This points to defendant Topp allowing the dog to enter her property.
Rather than the court indicating that this cause of action is governed by strict liability and that that under strict liability time is not a factor, and that it does not matter how many times, or for what period of time that the activity lasted, the court cited to an abstract principle regarding the definition of keeper or controller referenced in the case of Buffington v. Nicholson (1947) 78 Cal. App.2d37,42. This case, which was decided before the enactment of the strict liability statute that governs dangerous domestic animals does not specifically address the issue of time or length of stay. In fact, the Buffington definition refers to the concept that a casual presence [of a dangerous domestic animal] does not constitute a keeper. This definition in Buffington does not take into account the legislature’s intent to make the harboring of a dangerous domestic animal subject to strict liability,
The theory of strict liability stands for the concept that if you engaged in the activity once, twice, five times or for one second, one minute, one hour, one day, etc… you are strictly liable if you knew or should have known that the dog was vicious and the dog causes harm to another person. The concept is directly analogous to other strict liability statutes such as engaging in ultra hazardous activities (i.e., blasting, explosives) because it does not matter if you engage in the activity for one second, one minute, one hour, one day etc.., the moment you engage in the activity strict liability attaches. The same is true with a dangerous domestic animal. Time or length of stay does not matter.
More importantly, there is overwhelming evidence presented at trial that jury found that the dog had been allowed by defendant Topp to enter Topp’s property by the comments contained at the end of jury question #1 which states:
This points to Diana Topp allowing the dog to enter her property
The instruction given to the jury in response to Jury Question #1 by this court in citing to Buffington, a pre-dog bite statute case (1947), was in error because Buffington does not take into account the strict liability nature of the harboring of a domestic animal with dangerous propensities, and instead places a lower standard of care (grounded in the negligence) upon the harboring of a dangerous domestic animal. This is contrary to the legislature’s intent to apply the concept of strict liability to the harboring of dangerous domestic animals.
THE PREPONDERANCE OF THE EVIDENCE PRESENTED AT TRIAL CLEARLY INDICATED THE DEFENDANT WAS STRICTLY LIABLE FOR THE INJURIES SUSTAINED BY PLAINTFF FROM THE DOG THAT WAS BEING KEPT AT DEFENDANT’S PROPERTY
Throughout the course of the trial, the plaintiff produced the following evidence that clearly established by a preponderance of the evidence that defendant Topp was strictly liable for the injuries sustained in the dog bite attack of Ms. White , and that plaintiff did establish by a preponderance of the evidence that Topp was also liable for premises liability for a dangerous condition (cause of action non-suited by the court during the trial).
TESTIMONY OF ANIMAL CONTROL OFFICER RAQUEL SHELDON
At trial, plaintiff presented testimony from animal control officer Raquel Sheldon who testified to the following:
a. That she was the 1st & only investigating officer who responded to the incident that occurred on April 13, 2006; and
b. She contacted the owner of the dog (Sandy White) who stated to her that the dog in question had been living at the defendant Topp’ property for in excess of two months; and
c. That the dog was vicious; and
d. That the dog had gotten out from defendant Topp’s property on other occasions.
It should be noted that the court did not recall such significant testimony by the officer until plaintiff’s counsel requested a copy of said testimony prior to closing argument. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.