affirming denial of landlord's motion for summary judgment where parties disputed whether, "at the time of the initial leasing of the premises to the tenant, the landlord knew both of the prospective presence of the dog and of its vicious propensities"Summary of this case from Gross v. Turner
Argued June 7, 1984
Decided July 3, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Albert M. Rosenblatt, J.
Thomas N. O'Hara for appellant.
Albert Pacione and John J. McBride for respondents.
A landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable to a person who while thereafter on the premises is bitten by the dog.
Plaintiff here seeks to recover damages from the landlord for injuries suffered when he was bitten by a dog owned by the tenant. After the landlord had filed an answer denying liability, plaintiff and his mother and defendant Sophie Zoltanski were examined before trial. Defendants then moved for summary judgment dismissing the complaint. Supreme Court granted the motion as to Joseph Zoltanski, the husband, who had no interest in the property on which the dog bite occurred. The court denied the motion as to Sophie Zoltanski, however, concluding that there were issues of fact as to her knowledge of the presence of the dog and of its vicious nature. The Appellate Division affirmed and granted Mrs. Zoltanski leave to appeal to our court on a certified question. We conclude that there should be an affirmance.
It appears from the papers submitted on the motion for summary judgment that, about five years prior to plaintiff's being bitten, Sophie Zoltanski inherited from her sister a six-acre parcel of land on which two residences were located. She did not live in either house but rented both. Plaintiff tendered proof in admissible form from which a jury could find that one Carl Kenyon, operator of a gas station, was occupying one of the two houses in April, 1979; that on one occasion during that month Mrs. Zoltanski was on the premises later leased to Kenyon where the German Shepherd dog which subsequently bit plaintiff was tied in her full view; that at the time the dog was "barking very loudly, jumping up and down, growling and acting ferocious". Mrs. Zoltanski stated on her examination before trial that she leased the premises to Kenyon on an oral basis in May.
On May 8, 1979 plaintiff, then a boy of 14, encountered Kenyon at his gas station and the latter asked him if he wanted the dog. Plaintiff replied that he would have to check with his mother. His mother wanted to see the dog and went with plaintiff to the Kenyon premises. She waited at the residence next door while plaintiff went to get the dog. The boy walked toward the dog to untie it, and it was then that the dog jumped up and bit him on the mouth and later on his arm as he sought to defend himself.
The general rule is that, in conventional settings in which premises are rented by a tenant who acquires exclusive possession and control, the landlord is not liable for attacks by animals kept by the tenant on those premises where the landlord had no knowledge of the animal or its dangerous proclivities at the time of the initial letting of the premises (see Landlord's Liability to Third Person for Injury Resulting from Attack by Dangerous or Vicious Animal Kept by Tenant, Ann., 81 ALR3d 638). The aspect peculiar to the present case is the circumstance that here the jury might find, although she herself denies it, that at the time she leased the premises to Carl Kenyon, Mrs. Zoltanski knew that her prospective tenant had a vicious German Shepherd dog which he intended to keep on the leased premises. Notwithstanding this prior knowledge, at a time when she had complete control of the premises she leased them to the tenant, permitted him to keep the dog on the premises, and, so far as appears on this motion, took no measures by pertinent provisions in the lease or otherwise to protect third persons who might be on the premises from being attacked by the dog.
The principle with respect to the liability of a landlord whose tenant comes into possession of the animal after the premises have been leased (that to establish liability it must be shown that the landlord had knowledge of the vicious propensities of the dog and had control of the premises or other capability to remove or confine the animal [ id.]) likewise is not determinative here. The present is a situation in which the landlord, by leasing the premises to the owner of the dog, could be found affirmatively to have created the very risk which was reasonably foreseeable and which operated to injure plaintiff. On the basis of the evidence tendered on the motion for summary judgment, the jury could find that, having created this risk, Mrs. Zoltanski took no steps reasonably calculated to protect this plaintiff from the injuries which he suffered. We do not intend to suggest that the landlord would be subject to the same strict liability to which a tenant as harborer of the dog would be subject (see Restatement, Torts 2d, § 509), but landlords as others must exercise reasonable care not to expose third persons to an unreasonable risk of harm (cf. Uccello v Laudenslayer, 44 Cal.App.3d 504).
Compare Restatement, Torts 2d (§ 379 A) as to the liability of a landlord in comparable circumstances to persons outside of the land:
"Activities After Lessor Transfers Possession
"A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
"(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
"(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken."
Considerations of public policy, the appropriate frame of reference for determination of tort liability in situations newly confronted by the courts, require that a landlord who, prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury has a duty to take such precautions as lie within the control of the landlord reasonably to protect such third persons from the injuries to be foreseen if no such precautions are taken. In the present case, no evidence was tendered on the motion for summary judgment that this landlord, aware of the danger of the situation, took any steps to protect this plaintiff.
See Bovsun v Sanperi ( 61 N.Y.2d 219, 228). The parties have not called our attention to any authority in case law or legal writings which addresses the question of liability of a landlord who has knowledge of a tenant's ownership of a vicious dog prior to the initial letting, and our research has disclosed none.
We recognize that in today's world there may be tenants whose interest in keeping a watch or guard dog for protection of person or property, in consequence of the character of the neighborhood in which the leased premises are located or by virtue of the peculiar circumstances of the individual tenant, is legitimate and not necessarily to be discouraged. Nevertheless, the tenant who harbors the dog and derives protective benefit from its presence on the premises will be held strictly liable to third persons for injuries inflicted by the dog (see Restatement, Torts 2d, § 509) and may be subject to governmental regulation (e.g., Agriculture and Markets Law, §§ 119, 121). In such situations, however, it would defeat what may properly be accepted as a socially useful purpose, namely, provision of housing for persons who may legitimately keep watch or guard dogs, to announce a rule of law which would have the practical effect of discouraging all landlords (who themselves derive no benefit, or at most only an incidental benefit, from the dog's presence) from ever leasing to any tenant who seeks to keep such a dog. The proper accommodation of these interests calls for the imposition on the landlord of a duty, at the inception of the lease when it is known that the tenant will keep a watch or guard dog, to take reasonable precautions for the protection of third persons, by provisions in the lease with respect to confinement or control of the dog or otherwise.
The circumstance, to which the dissent draws attention, that the dog here was tied up both when observed by the landlord prior to the letting of the premises and at the time of the attack on plaintiff is not conclusive on the present motion for summary judgment. Liability, if any, of the landlord will depend on whether at trial the jury finds, on evidence sufficient to warrant such a finding, that, knowing of the tenant's ownership of a vicious dog, she took reasonable care in her arrangements with the tenant to protect third persons from injury. In the record before us there is no tender of evidence of her having taken any care. Whether the exercise of reasonable care in the circumstances would have called for a requirement that the dog be tied, or be otherwise confined so as both to restrain the dog and to exclude third persons, and also a requirement that warnings be posted, as well as whether the landlord's failure to take any care, if such be the proof on trial, was the proximate cause of plaintiff's injuries, both present factual issues to be resolved by the triers of the facts. We do not intend to imply that there must be a finding that this landlord is liable for the injuries suffered by this plaintiff; we do no more than conclude that there are factual questions which foreclose dismissal based on the submissions on the motion for summary judgment.
None of the cases on which the dissent would rely as holding that a landlord is not liable for damages suffered by a third person in consequence of an attack by an animal harbored by the tenant ( Theobald v Grey Public Relations, 39 A.D.2d 902; Zwinge v Love, 37 A.D.2d 874; Laguttuta v Chisolm, 65 App. Div. 326; Denagy v Doscher, 40 Misc.2d 643; Richards v Leppard, 118 N.H. 666 [involving statute imposing liability on one "who owns or keeps (a) * * * dog, or has it in possession"]; and Gilbert v Christiansen, ___ Minn ___, 259 N.W.2d 896 [involving statute imposing liability on the "owner" of the dog]) involve the circumstance peculiar to this case, namely, that here the liability, if any, of the landlord would be predicated on a jury finding that, at the time of the initial leasing of the premises to the tenant, the landlord knew both of the prospective presence of the dog and of its vicious propensities.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Judges JASEN, MEYER and SIMONS concur with Judge JONES; Judge KAYE dissents and votes to reverse in a separate opinion in which Chief Judge COOKE and Judge WACHTLER concur.
Order affirmed. Question certified answered in the affirmative.
The new duty recognized by the majority effectively subjects a landlord to absolute liability for damage caused by a tenant's dog or other animal with "vicious propensities" of which the landlord is aware at the start of a tenancy. Because such an expansion deviates from established principles of law in this State, and because no sound reason is advanced to depart from these principles, I respectfully dissent.
Knowledge of "vicious propensities" has been implied from the fact that a dog was kept as a watchdog ( Russo v Schieber, 11 Misc.2d 842, affd 8 A.D.2d 986; Lagoda v Dorr, 28 A.D.2d 208 Shuffian v Garfola, 9 A.D.2d 910; Kessler v Katz, 212 App. Div. 838), from the fact that the dog was a German Shepherd, a breed said to have inherited vicious tendencies from "wolf ancestors" ( Kelley v Hitzig, 71 Misc.2d 329; Ford v Steindon, 35 Misc.2d 339), and from the viciousness of the attack itself ( Carlisle v Cassasa, 234 App. Div. 112). (See 3 N.Y. Jur 2d, Animals, § 43.)
While the majority states that it does not intend to subject landlords to the same strict liability as owners of animals, it is impossible to reconcile that statement with the result reached. If indeed the appellant landlord's liability were governed by principles of ordinary negligence, the landlord having a duty "to take reasonable precautions for the protection of third persons, by provisions in the lease with respect to confinement or control of the dog or otherwise" (majority opn, p 577), there would be a reversal here. According to plaintiff, both at the time the landlord saw the dog and at the time of plaintiff's injury, the dog had been tied up by the tenant. The landlord's liability thus must rest not on a negligent failure to see that the dog was confined or controlled but on strict liability deriving from the simple fact that the landlord knew at the time of leasing that the tenant kept a dog with "vicious propensities" (see Muller v McKesson, 73 N.Y. 195, 199; Restatement, Torts 2d, § 509). There is no basis for such liability.
Terming this a case of first impression in this State, the majority relies on a decision of a California intermediate appellate court, Uccello v Laudenslayer ( 44 Cal.App.3d 504). But liability there was predicated on a California statute (California Civil Code, § 1714) as well as case law construing that statute, both of which impose liability beyond common-law limits and neither of which is applicable in this State. New York has no comparable statute, and our case law has not extended liability to landlords for injuries caused to third persons by a dangerous condition on leased premises, even where the landlord had knowledge of that condition at the time the lessee took possession. ( Campbell v Holding Co., 251 N.Y. 446, 448.) This is consistent with the general rule as set forth in section 356 of the Restatement, Second, of Torts that: "Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession."
None of the exceptions to this rule, set forth in sections 357-362 of the Restatement, are applicable. Section 356, which concerns a lessor's liability to persons on the land by dangerous conditions, and not section 379 A (cited by the majority), dealing with injuries caused by nuisances on the land to persons outside the land, is the applicable rule here.
Here, the tenant's dog was a dangerous condition on the land that caused injury to plaintiff, also on the land, at a time when the tenant, and not the landlord, was in possession and control of the premises. The fact that a landlord is aware that a dangerous condition exists when a tenant first takes possession does not render the landlord liable when the tenant, who has the opportunity to protect others from the dangerous condition, fails to do so. Liability should not be imposed upon one who has no control over the tort-feasor. ( Pulka v Edelman, 40 N.Y.2d 781, 783-784.) The garage owner in Pulka v Edelman knew that its patrons tended to create a dangerous condition by driving out of the garage across the adjacent sidewalk without looking for pedestrians. To say that the landlord in the present case could have refused to let the premises to the dog's owner and therefore owed a duty to plaintiff is akin to holding that the garage owner in Pulka owed a duty to pedestrians for which it could be liable for damage its patrons caused, because it could have refused to allow persons to park in its garage or could have taken steps to see that they did not exit the garage in a dangerous manner. We refused to so rule in Pulka, and we should not do so here. Foreseeability of injury does not create a duty.
In accordance with the rule in New York as to landlords' liability and the recognition that a landlord has neither possession nor control of leased premises, lower courts have refused to extend liability to landlords for injuries caused by vicious dogs maintained by tenants on premises controlled by those tenants. ( Laguttuta v Chisolm, 65 App. Div. 326.) This is so even if the landlord knew that the tenant kept a vicious dog on the premises. ( Zwinge v Love, 37 A.D.2d 874; Denagy v Doscher, 40 Misc.2d 643.) In Siegel v 1536-46 St. John's Place Corp. ( 184 Misc. 1053), a landlord was held liable where the injury was caused by a dog kept by the landlord's servant, the building superintendent, and the victim was bitten in a common area of the apartment building over which the landlord retained control. But Siegel clearly has no application where the injury occurs in an area in the possession and control of the tenant, not the absentee landlord.
This is in accord with the Restatement rule, which extends liability to owners and harborers of dangerous animals, but not to landowners. (Restatement, Torts 2d, §§ 509, 514.) "[P]ossession of the land on which the animal is kept, even when coupled with permission given to a third person to keep it, is not enough to make the possessor of the land liable as a harborer of the animal." (Restatement, Torts 2d, § 514, Comment a.)
No different result is required because it is alleged that the landlord knew before the premises were let that the tenant would be keeping a dog with vicious tendencies. In Theobald v Grey Public Relations ( 39 A.D.2d 902), plaintiff was injured by a lion used in an advertising display during an auto show. Although the court held the lessee-advertiser liable, the lessor of the premises was absolved of liability as it did not control the lion's actions, even though the lessor was the show's sponsor and "permitted, nay, encouraged, the presence of the lion, with full knowledge of its intended use" ( 39 A.D.2d 902, 904 [McGivern, J., dissenting]). Courts of other States have also refused to impose such liability on landlords alleged to have knowledge of a prospective tenant's dangerous animal. (See Richards v Leppard, 118 N.H. 666; and Gilbert v Christiansen, ___ Minn ___, 259 N.W.2d 896). (Although both decisions were in part concerned with liability under State statutes, the extent of liability under those statutes is similar to that under the Restatement rule and common law of New York discussed above.)
Although it was stated that the lessor in Theobald had no "specific knowledge of [the lion's] carnivorous tendencies" ( 39 A.D.2d 902, 904), such knowledge would not be a requirement for liability. While the owner of a domestic animal, such as a dog, is not liable for injury caused by the dog unless he knows or should have known of the particular dog's vicious tendencies ( Muller v McKesson, 73 N.Y. 195; Restatement, Torts 2d, § 509), an owner of a wild animal, such as a lion (see Restatement, Torts 2d, § 506, subd ) is liable for damage that results from dangerous propensities that are characteristic of the class of wild animals of which his animal is a part, whether or not he is aware of any specific vicious tendencies of the particular animal. (Restatement, Torts 2d, § 507.)
Finally, as for the majority's reliance on public policy, it is difficult to determine just what policy is being furthered by creating this new duty. Landlords are made insurers of the conduct of dogs residing with their tenants, when they do not control the tenants or the dogs, which contravenes our notions of fairness expressed in Pulka and elsewhere. The result is equally unfair to tenants. In view of the low threshold of proof required to show that one has knowledge that a dog has vicious propensities, tenants with dogs will, by virtue of broad potential liability imposed on landlords, have difficulty obtaining suitable housing. As the Minnesota Supreme Court stated in denying recovery against a lessor in a similar situation: "Despite plaintiffs' attempt to demonstrate that the instant facts are unique, a judgment in their favor would render it difficult, either through unavailability or prohibitive cost, for prospective tenants with dogs to find housing. Determination of policy on this matter is a question for the legislature." ( Gilbert v Christiansen, ___ Minn ___, ___, 259 N.W.2d 896, 898, supra.)
The order of the Appellate Division should be reversed, and summary judgment granted dismissing the complaint.