A key aspect of whether a pet owner is liable for damages/injuries caused by his pet is a determination on whether the animal in question is “wild” or “domesticated” in the eyes of the law.
A person who owns a wild animal is held strictly liable for any harm caused by that animal. The courts generally define a wild animal as any animal that by nature is wild, even if the animal is tamed and was raised by the owner in his household rather than in the wild. Examples of animals that have been considered “wild” by the courts include snakes, lions, tigers, and bears.
In contrast, the owners of domestic animals (e.g., dogs, cats, horses, etc.) are held strictly liable only upon proof that the animal in question had dangerous propensities and its owner was aware of said dangerous propensities before the injury-causing incident. Thus, where the owner of a domestic animal is on notice that his animal is dangerous (e.g., Bubba, a dog, has bitten people in the past), that owner would be strictly liable for similar harm caused by the animal in the future (e.g., Bubba bites again and injures a person).
Prosser and Keeton on Torts:
As set forth in Prosser and Keeton, the owner of any animal will be subject to strict liability only if the particular animal poses “some kind of abnormal risk to the particular community where the animal is kept:”
“The kind of ‘dangerous animal’ that will subject the keeper to strict liability requires identification. In general, it can be said that the animal must pose some kind of an abnormal risk to the particular community where the animal is kept; hence the keeper is engaged in an activity that subjects those in the vicinity, including those who come onto his property, to an abnormal risk.”
Prosser and Keeton on Torts, Ch. 13, § 76, pp. 541-542.
However, Prosser and Keeton explain that what constitutes an “abnormal” risk depends on whether the animal in question is “wild” or “domestic:”
“It is the exposing of others to an abnormal risk that is regarded as justifying strict liability. Since the abnormality of the risk is the basis for the imposition of strict liability, courts have generally and for many years distinguished between wild animals and domestic animals. The Restatement of Torts differentiates between these two classes of animals by defining a domestic animal to be an animal that is customarily devoted to the service of mankind at the time and in the place where it is kept. This appears to describe accurately the result of the cases.”
Id. at 542.
With respect to “wild animals,” the abnormal risk arises out of the “normally” dangerous tendencies of such animals: strict liability is imposed because of “a dangerous propensity that is characteristic of wild animals of that class.” (Id. at 542.) Thus, wild animals such as “lions and tigers, bears, elephants, wolves, monkeys, and other similar animals” are a per se abnormal risk to the community because of their normal or “characteristically” dangerous traits: “No member of such a species, however domesticated, can ever be regarded as safe, and liability does not rest upon any experience with the particular animal.” Ibid.
In contrast, the abnormal risk necessary to impose strict liability on owners of “domestic” animals depends on whether the particular animal at issue possesses a dangerous tendency that is “abnormal,” i.e., not characteristic of the class to which it belongs. As observed by Prosser & Keeton, the “possessor of a domestic animal is not subject to liability for harm simply and solely because it resulted from a dangerous propensity of the domestic animal.” (Ibid. [Emphasis added.]) Instead, “the possessor must have known or had reason to know of a dangerous propensity or trait that was not characteristic of a domestic animal of like kind.” Ibid. (Emphasis added.) Prosser and Keeton note that numerous classes of animals such as “bulls, stallions, bees, mules and rams” have “dangerous propensities,” and yet they are considered “domestic” because of “the customs of the community” and the “social utility of keeping an animal in a particular locality.” Id. at 543. With respect to these animals, even if the animals have normally dangerous traits, their owners are “not subject to strict liability” because these traits are not “abnormal” to their class. Id. at 542-543. Prosser and Keeton conclude: “the characteristically dangerous types of animal that are customarily kept, domesticated, and devoted to the service of mankind are sanctioned by common usage to such an extent as to make inapplicable the doctrine of strict liability.” Id. at 543.
Restatement Second Torts:
The Restatement (Second) of Torts is in accord with Prosser and Keeton.
First, the Restatement distinguishes between “wild animals” and “domestic” animals. Section 506, subsection (1) defines a “wild animal” as “an animal that is not by custom devoted to the service of mankind a the time and place in which it is kept.” Section 506, subsection (2) defines a “domestic animal” as “an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.”
The comments to subsection (1) make it clear that an animal is deemed “wild” not only by local custom, but also because of the “normally” dangerous tendencies that such animals possess: “As a rule wild animals are dangerous unless effectively controlled and whatever value they have is not affected by their being kept under close and effective control.” Rest.2d Torts, § 506, subsection (1), Coms. (a) and (b). However, an animal with normal dangerous traits that is “incapable of effective control,” such as bees, will still be classified as a domestic animal if the animal “has been customarily recognized as devoted to the service of mankind.” Rest.2d Torts, § 506, subs.(1), Com. (b).
The Restatement, consistent with Prosser and Keeton, defines the “abnormal risk” posed by wild and domestic animals based on community custom and the social utility of the animal. Section 507 provides in pertinent part:
(1) A possessor of a wild animal is subject to liability to another for harm done by the animal to the other… although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.”
(2) This liability is limited to harm that results from the dangerous propensity that is characteristic of wild animals of the particular class.
In the case of a wild animal, the person is “required to know the dangerous propensities normal to the class to which it belongs” and, therefore, it is “not necessary in order for the rule stated in this Section to be applicable that its possessor should have reason to know that the particular animal possesses a dangerous propensity.” Rest.2d § 507, Comment (c). The rule of strict liability applies to a “wild animal” so defined even if the owner believes the animal “has been so tamed as to have lost all of these [normally dangerous] propensities.” Ibid. The owner “takes the risk that at any moment the animal may revert to and exhibit them.” Ibid.
Similarly, the Restatement defines the “abnormal risk” posed by a domestic animal in the same manner as does Prosser & Keeton. Section 509 provides in pertinent part:
(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.
(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.
The comments to section 509 make it clear that the animal poses an “abnormal” risk only if it is “vicious,” i.e., has “a tendency to attack human beings or other animals that is abnormal in animals of its class.” Rest.2d Torts, § 509, Comment (c).)
As an example, Comment (d) to this section notes that one who owns a domestic animal “that to his knowledge is vicious, or which though not vicious possesses dangerous propensities that are abnormal” are strictly liable because they introduce “a danger not usual to the community.” By contrast, “those who keep domestic animals such as bulls and stallions that are somewhat more dangerous than other members of their species” are not strictly liable because the owners have not introduced an “unusual danger,” and because “the somewhat dangerous characteristics of these animals are a customary incident of farming and the slightly added risk due to their dangerous character is counterbalanced by the desirability of raising livestock.” Ibid.
In Hagen v. Laursen, 121 Cal. App. 2d 379 (1953), plaintiff argued that the dogs were “vicious” because they were “boisterous,” had jumped on people on prior occasions, and had “grabbed” the sleeve of a person on a prior occasion.
The court reasoned that there was no evidence that the dogs were “more boisterous than dogs usually are” or that jumping on people was an “abnormal” trait among dogs. Id. at 381-382. The court found that domestic animals are normally permitted to “run at large” because they “have been traditionally regarded as unlikely to do substantial harm.” A possessor of a domestic animal “is both entitled to assume and required to expect that domestic animals will act in accordance with the nature of such animals as a class, unless he knows or should know of some circumstance which should warn him that the particular animal is likely to act in a different manner:”
Pursuant to these long-established rules found in the common law and in most, if not all, of the states of the Union, including California, it has always been necessary in a complaint seeking to recover damages for injuries caused by dogs to plead and prove that the injury was by some abnormal action, that is abnormal with regard to the usual actions of these animals and that the owner or keeper knew of a tendency to the abnormality.
Id. at 382 (Emphasis added.) The court also observed that “the same rule applies to cats, quoting Buckle v. Holmes, 2 K.B. 125, where a cat killed fowls on plaintiff’s property: “One who keeps a domestic animal is not rendered liable by the mere fact that the animal does damage in following the natural propensity of its kind to do damage in certain circumstances . . . .” Id. at 383.
In Malcolm v. Tevis, 110 Cal. App. 76 (1930), the court reversed a judgment against the owner of a horse that had a tendency to “bolt when mounted.” Id. at 77. The court of appeal rejected the respondent’s argument that a horse that bolts is “vicious” for purposes of making the owner an “insurer” of the safety of the public. Id. at 77-78. The court found that the horse in question was not “vicious” since it had never “attacked” anyone. Id. at 78. Instead, “the vicious trait was such as to endanger plaintiff only itt the event that she mounted the horse.” Ibid.
The court of appeal found in Yuzon v. Collins, 116 Cal. App. 4th 149 (2004), that liability would not be imposed on a landlord under a negligence theory where there were no prior similar incidents of injuries caused by a dog, and the only evidence of “viciousness” was limited to “normal” dog behavior, i.e., “pushing, barking, and jumping at the screen door.” Id. at 164. Although the case did not involve a “strict liability” theory, the court made it clear that “viciousness” cannot be established by “behaviors described in the record [that] were normal dog behaviors and not so alarming that [the defendant] must have known of [the dogs] vicious propensities.” Id. at 166.
In Clark v. Brings, 284 Minn. 73 (1969), plaintiff was bitten by a siamese cat while baby sitting at defendant’s home. After reviewing the common law rule distinguishing between “wild” and “domestic” animals, the Minnesota Supreme Court held that a “cat” is a domestic animal presumed to be harmless and safe. Id. at 409-411. The Court observed that strict liability is imposed only when a domestic animal has acted contrary to “the tameness of his nature” and ‘put on a savage nature.’” Id. at 82. The testimony established that the subject cat had scratched defendants, their children, and other baby sitters on other occasions. The Court found that these incidents “usually” occurred “when they were picking it up or playfully handling it.” Id. at 82. In holding that the evidence was insufficient as a matter of law to establish that the cat had a vicious nature or “savage” nature that was contrary to its normally “harmless” nature, the court reasoned thus: “. . . the testimony shows that the cat was provoked and excited by play when it inflicted the first injury, and the authorities universally hold that ‘[s]uch an attack is no evidence of viciousness of the animal . . . . and is insufficient to render the owner liable.” Id. at 82.
In Rector v. So. Coal Co., 192 N.C. 804 (1926), plaintiff claimed that a particular mule in a stable of mules was skittish and prone to react violently when approached or disturbed. The court held that this evidence was insufficient to send the case to the jury on the grounds that the mule was abnormally vicious because it is common knowledge that mules “are uncertain, moody, and morose.” Ibid.
In Judd v. Zupon, 297 Minn. 38 (1973), the Minnesota Supreme Court affirmed a directed verdict in favor of a cat owner. The plaintiff was bitten and scratched by two siamese cats when she came to the defendant’s back door. The plaintiff alleged that the cat had a vicious nature because, on a prior occasion, the cat had scratched a neighbor child during play. The Court found that the fact that a cat will scratch or bite during play is insufficient as a matter of law to find that a cat has a “vicious character.” Ibid.
In Goodwin v. E.B. Nelson Grocery Co., 239 Mass. 232 (1921), plaintiff was injured when a cat inflicted injuries on her when she intervened during a fight between her dog and the owner’s cat. The Court found that plaintiff could recover only upon a “finding that the cat was vicious to the knowledge of the defendant.” Id. at 234. The court that a “domestic cat is by nature ordinarily harmless and docile.” Ibid. Evidence that “on one occasion . . . the cat had shown its teeth and pulled the fiber from the stocking of a child in the store” was “insufficient to warrant a finding of knowledge on the part of the defendant of characteristics likely to develop into an unprovoked attack of a violent nature.” Id. at 235.
In Lee v. Weaver, 195 Neb. 194 (1976), plaintiff was bitten on the leg by a cat owned by her employer. Because of complications, the bite became infected and plaintiff became disabled. The evidence established that: the cat had bitten the defendant during play; the cat “would growl and run away when the plaintiff operated the vacuum cleaner; and “the cat would growl and strike at the broom with its paw.” Id. at 195-196. The Nebraska Supreme Court reversed the judgment in favor of plaintiff on the grounds that the evidence was insufficient as a matter of law to establish that the cat had a “vicious” propensity. A cat is not “vicious” where prior injuries occurred when the cat “was excited and provoked by play.” Id. at 196.
In Wignes v. Bottger, 136 Misc. 2d 490 (1987), plaintiff attempted to rescue the defendant’s cat from a roof top. The cat was initially docile when plaintiff petted it, picked it up and returned to the ladder. However, while descending the ladder the cat “twisted around in the plaintiff’s hand, sank its fang into the knuckle” and began to chew. (Ibid.)
The court assumed that the defendant knew that the cat had bitten someone upon provocation on a prior occasion, but found as a matter of law that such behavior did not constitute an “attack” nor was it “vicious.” Id. at 493. The court reasoned that the “term ‘vicious propensity’ is usually applied to describe an unprovoked attack or the actions of an animal either trained or known to attack.” The court found that the bite was a response “to being held by the scruff of the neck,” and “was not demonstrative of a vicious propensity” but rather a natural reaction.”
In Ray v. Young, 154 N.C. App. 492 (2002), the defendant’s cat, without any provocation, repeatedly attacked and bit the plaintiff. The evidence established that although the cat occasionally bit or scratched defendants while playing, he had never attacked or displayed the type of aggressive behavior experienced by plaintiff. The cat’s medical records also revealed that the cat had no history of aggression. The court of appeal affirmed summary judgment in favor of defendants, finding that the evidence established that the cat’s previous behavior was typical of cats. Specifically, the court noted that it was “common knowledge that, “ ‘Cats have claws. Cats have teeth. [The fact that a cat may scratch or bite during play] is one of the possibilities whenever you have a mammal in your possession.’ ” Id. at 495.