Introduction:

America’s love affair with the dog has accelerated in recent years. The percentage of families owning dogs has increased as has the facilities for care and treatment of canines. The warm personal relationship between most people and their dogs leads many people to be shocked when they discover that most states, including California, allow dogs to be killed by third parties without liability under various circumstances and, conversely, hold the dog owner liable for actions of the dogs even if the dog owner had no reason to know the dog was dangerous.

It is vital for dog owners to learn the basic law concerning their pets both in terms of protecting the pet and in protecting themselves from claims of third parties. And if you are a rancher or farmer, you must know the law as to what steps you can legally take to protect your livestock from dogs or packs of dogs.

This article shall outline the law that applies in California.

 

Liability for the Acts of Your Dog:

 

  1. Strict Liability

California is one of the states with “strict liability” laws that make pet owners responsible for most dog-bite and related injuries. Strict liability means that you are liable for the acts of your dog regardless of whether you knew or should have known that your dog was dangerous. What the dog does-you must pay for.

When the victims sue to get compensation for their damages, it does not matter whether the owners knew their dogs had ever been dangerous before. That means an owner cannot argue in defense that the owner did not know the dog was dangerous, or that the owner took care to prevent the animals from hurting someone. If harm occurs, the owner must pay.

 

The law imposing such liability does have some limits. The owner is strictly liable only if the injured person:

  1. was bitten, and
  2. was either in a public place or “lawfully in a private place” when the bite happened.

For the statute, anyone who’s carrying out a legal duty (like delivering mail) is lawfully on private property.

But notice that if you invite a person into your home or the person was there to repair your premises at your request, they would be so protected.  Also notice that if the dog leaps up and the person falls, they are not protected by the strict liability doctrine.

Injured people cannot sue under this strict liability statute if they were bitten by police or military dogs that were either doing law enforcement work or defending themselves against annoying or provocative behavior. (Cal. Civil Code § 3342.)

If a dog seizes a person with its teeth but does not break the skin, that could still count as a “bite.” And oddly enough, in a case where a worker fell from his ladder after a dog closed its jaws on his pants, the court held that the animal’s owner was liable for the injuries under section 3342 (Johnson v. McMahan, 80 Cal.Rptr.2d 173 (Cal. App. 2d Dist. 1998)).

 

  1. Negligence Liability

Since California’s strict liability statute is inapplicable to victims who were injured by dogs that did not bite them—for instance, when the dogs leap up and knock a person over, chase a car and cause an accident, attack a bicycle wheel or chased them on a motorcycle and caused an accident, liability in such instances is found under the theory of negligence. That means the dog owner must be found to have been negligent in supervision of the dog. The key is that the plaintiff must prove that the owner did not use reasonable care to train or control the dog in an appropriate way. The burden of proof is on the plaintiff by a preponderance of the evidence.

For example, suppose a dog jumps on a child who’s playing on the sidewalk and knocks the child down, breaking his arm. If the victim's parents sue, they must prove that the owner did not use reasonable care to control the dog, such as by keeping it on a leash or in a fenced-in yard.

While California’s strict liability dog-bite statute applies regardless of the animal’s history, if that law does not apply the basic law of negligence makes owners responsible for taking “reasonable steps” needed to “remove any danger of future attacks” when their dogs have bitten someone in the past.

Any injured party can commence legal action against the owner of a dog who has bitten a human twice (in separate incidents) or the owner of a trained attack dog who has seriously injured someone with even a single bite. The court may order the owner to take steps to prevent future attacks, including removing the dog from the area or having it destroyed.

Note that this civil proceeding cannot be based on the dog’s history of biting trespassers, or on bites by working police or military dogs. (Cal. Civil Code § 3342.5).

To prove negligence, the plaintiff must prove that the owner knew or should have known of the danger of the dog and failed to take reasonable precautions such as keeping the dog on the leash, muzzling the dog, keeping the dog in a fenced yard, etc. Violation of the leash laws or ignoring signs that prohibit entry of dogs is strong evidence of failure to take due care.

 

                  3. State Involvement

Petition by Animal Control or Law Enforcement.

California also has a separate legal procedure for controlling dangerous dogs. Animal control or law enforcement officers can file a petition for a hearing when they suspect a dog is a threat. If the court decides that the animal is potentially dangerous or vicious, the owner must meet certain conditions, including keeping the dog indoors, on a secure leash, or in a fenced yard that will keep the animal in and children out. Owners who violate these restrictions may be fined.

Under that procedure, a dog is considered potentially dangerous if it has:

  1. forced people to defend themselves from aggressive behavior (while away from the owners’ property) in at least two separate incidents during the past three years
  2. bitten someone without being provoked, resulting in an injury that is not severe; or
  3. killed or injured a domestic animal twice in the last three years.

The law considers a dog vicious if:

  1. the animal aggressively injured or killed someone without being provoked, or
  2. a court already determined that it was potentially dangerous and either the owner didn’t meet the legal conditions, or the dog repeated the dangerous behavior.

(Cal. Food & Agric. Code §§ 31601-31683.)

 

Criminal Sanctions.

Dog owners may also face criminal charges when their animals injure someone. The law applies if the owner knew the dog was prone to “mischievous” behavior but failed to keep it under control, and the animal killed or injured someone while it was roaming at large. The crime is a felony if the victim was killed and a “wobbler” (either a misdemeanor or felony) if the victim was only injured. (Cal. Penal Code § 399.)

In San Francisco about a decade ago two dogs killed a co tenant of an apartment building and the owners were sentenced to prison and the dogs destroyed. They were alleged to have known that the dogs snarled and snapped at people yet failed to control them when the neighbor was coming up the stairs with a bag of groceries and they mauled her. These people had no prior criminal record but ended up in State prison.

Both Criminal and Civil Liability

Even if criminal charges are filed in connection with a dog bite, the injured person may also commence civil legal action against the owner for damages, as long as the civil suit is filed within two years after the injury (Cal. Civ. Proc. Code § 335.1). The time period might be extended in some circumstances as discussed below.

The dog owner should make sure that he or she has adequate liability insurance for such legal actions and seriously consider an umbrella policy which would increase coverage. The defense costs along of such actions can easily exceed one hundred thousand dollars; insurance makes very good sense.

 

  1. Defenses in Dog-Bite Lawsuits

Dog owners may have various legal defenses in civil lawsuits to defend against claims for injuries caused by their animals. Such defenses include:

  1. The injured party was trespassing at the time of the injury
  2. The injured party was at least partly at fault for the incident (which would reduce any compensation they receive under California’s “comparative negligence” rule), or
  3. The injured party voluntarily assumed a risk of injury. (An example is a dog trainer who was testing the dog’s ability to withstand aggressive behavior from an individual, etc.)

Note that additional defenses may apply in criminal charges resulting from dog bites given the higher burden of proof and the need for the district attorney to prove prior knowledge.

 

When Can Someone Kill Your Dog?

It is legal to kill another person’s dog in some circumstances, usually when it is reasonably necessary to protect persons or property.

Dogs, cats, and other animals are treated as property under the law. That often means that people who kill someone else’s dog may have to compensate the owner, just as if they destroyed another kind of property that was not theirs. The perpetrator could also face criminal charges, including animal cruelty or criminal property damage. But there are exceptions—certain circumstances when people have the legal right to kill a dog. Some of these exceptions are written into state and local laws, while courts have recognized others.

 

  1. Killing Dogs to Protect People

Most animal cruelty laws make it a crime to kill or injure animals “unnecessarily” or “without justification.” The most obvious justification is self-defense or defending another person from harm. That does not necessarily mean, however, that one is legally empowered to kill a dog just because the dog is growling or barking, or it has bitten someone in the past.

The general rule most courts follow: You must reasonably believe it is necessary to kill or injure the animal in order to prevent an immediate threat of serious injury. (See, for example, Grizzle v. State, 707 P.2d 1210 (Okla. Crim. App. 1985).) Some states have explicitly included this rule in their laws (Ga. Code Ann. § 16-12-40).

Can one kill a dog if it is not actually attacking a person? That depends on the circumstances, as well as the language in any applicable state laws.

For example:

A Pennsylvania statute provides that it is legal to kill a dog seen in the act of chasing or attacking people or other domestic animals, including pets (3 Pa. Cons. Stat. § 459-501).

In New York an individual faced criminal charges of animal cruelty after he shot and killed a large Labrador that ran on his property and attacked his beagle. There were several small children in the vicinity, and the Labrador had previously bitten the man’s daughter. Note that New York state law did not give him the right to kill the dog just because it was trespassing. Considering the totality of the circumstances, the court found that he had acted reasonably to protect the children. (People v. Wicker, 78 Misc. 2d 811 (N.Y. Town Ct. 1974).)

But compare that to the Massachusetts case in which a father was convicted of animal cruelty for killing his girlfriend’s eight-pound dog after the animal bit their daughter. However, since he had already accomplished full control over the dog before he killed it, the court found that his actions were not necessary to defend his daughter and he was guilty as charged. (Com. v. Daly, 56 N.E.3d 841 (Mass. App. Ct. 2016).)

  1. Killing Dogs to Protect Livestock Property

Many states also have laws that make it legal for farmers or others to kill dogs that are chasing, harassing, or injuring their livestock or domestic animals, which may or may not include pets. Notice this normally does not require actual injury to the livestock. This is discussed further below.

  1. Killing Dogs Based on Past Behavior

The public is generally not legally allowed to kill someone else’s dog in retaliation for past attacks, unless there is a legal exception in the law. For instance, a California statute says that people have the right to kill any animals “known as dangerous to life, limb, or property” (Cal. Penal Code § 599c). This exception must be proven by the charged party.

Government officials often have the right to kill dogs based on what the dogs have done in the past, if the government follows legal procedures—including giving the owners notice and the opportunity to challenge the government’s proposed action. Local animal control officers usually have the authority to pick up, impound, and even destroy dogs that are a threat because of past behavior. And under the “dangerous-dog laws” in many states, authorities may—under certain circumstances—euthanize dogs that have been declared dangerous or vicious.

  1. Shooting or Poisoning Trespassing Dogs

Courts have generally found that landowners do not have the right to kill dogs just because they’re trespassing. Here again, there may be exceptions. For example, an Ohio statute says that it is not illegal for landowners to kill or injure animals while trying to keep them from trespassing or while driving them away from the property. However, the landowners must pay compensation to the animals' owners, minus the amount of any damage that the trespassing dogs caused. (Ohio Rev. Code Ann. § 959.04.)

Animal cruelty laws often specifically outlaw poisoning dogs on purpose, including putting out poison where you know a dog is likely to get into it. Most states do not make an exception for trespassing dogs, but many do exempt poisoning that is not “malicious.” (See, for example, N.Y. Agric. & Mkts. Law § 360; 510 Ill. Comp. Stat. Ann. § 70/6; Va. Ann. Code § 18.2-144.)

Note that some states, such as California, specifically allow putting out poison on your own property to control predatory dogs or other animals, as long as you have placed conspicuous signs warning about the poison (Cal. Penal Code § 596).

  1. When Dogs Hurt or Chase Livestock

In most jurisdictions, farmers and other livestock owners may legally kill dogs that are chasing or attacking their animals, and the dog owners are responsible for any damages to the livestock.

It is the dog owner’s responsibility not only to take care of the animal, but also to keep it from injuring people or damaging property. In urban and suburban areas, that usually means preventing it from biting someone. But in rural areas, it means keeping the dog from attacking or bothering neighbors’ sheep, cows, horses, or other livestock. If that happens, there are two basic rules:

/1/ The livestock owners may legally kill the marauding dogs, and they are usually not liable if the dog owners sue them.

/2/ Dog owners are financially responsible for the damage their dogs cause.

  1. Killing Predator Dogs

Many states have laws allowing farmers, ranchers, and others to kill dogs that are chasing, harassing, or attacking their livestock. Even without these statutes, however, it has long been a common-law rule that people may kill dogs when it’s necessary to protect their property, including livestock. (See Brauer v. English, 21 Mo. App. 490 (1886).) This has been law for centuries.

And note that a farmer or rancher usually does not have to wait until a dog has sunk its teeth into a calf or lamb. Most laws allow killing a dog that is chasing, “worrying,” or preparing to attack livestock. Note that simply running through a field where there are cows or sheep is probably not enough (see Trautman v. Day, 273 N.W.2d 712 (N.D. 1979)). Landowners usually do not have the right to kill dogs just for trespassing. But in a farmer friendly court, the court will be inclined to believe the farmer who testifies that it was clear that dog was actually planning to attack.

Often, the dog must be caught in the act of chasing or hurting livestock. In Texas, for instance, the law allows people to kill animals discovered in the act of injuring livestock or damaging crops, but the landowner must kill the predatory animals at the time of that discovery (Tex. Pen. Code § 42.092). As one court put it long ago, "It is not the dog's predatory habits, nor his past transgressions, nor his reputation, however bad, but the doctrine of self-defense, whether of person or property, that gives the right to kill." (State v. Smith, 72 S.E. 321 (N.C. 1911).)

In that vein, the laws in some states clearly prohibit hunting down a predatory dog that has left the farmer’s property. In Illinois, a court ruled that a sheep farmer was not protected under that state’s law when he followed a dog back to its owner's home and shot it there, an hour after the dog had killed some of his sheep (People v. Pope, 383 N.E.2d 278 (Ill. Ct. App. 1978)).

In other states, however, courts have said the law allows farmers to pursue and kill predator dogs, even though the danger has passed. For example, the Kansas Supreme Court said that, “within a reasonable time” after the dog harassed livestock and fled the property, a farmer could chase and shoot it (McDonald v. Bauman, 433 P.2d 437 (Kan. 1967)). In Washington, the law specifically allows a livestock owner to kill a dog found running loose after a previous episode of harassing the livestock, as long as the dog’s owner was notified about the earlier incident (Wash. Rev. Code § 16.08.020).

  1. What Counts as Livestock?

"Livestock" usually means only commercially valuable animals, not pets or wild animals. Some state laws list the kinds of animals protected. Others say only that a dog may be killed if it chases or attacks a "domestic animal." That term historically does not cover dogs and cats, and some states specifically exclude those pets from these laws (see Ohio Rev. Code § 955.28). Other states, however, specifically include dogs and cats in the definition of domestic animals (see 18 Penn. Cons. Stat. § 5561).

Depending on state law, that means someone who injures a dog that attacked another dog, a cat, or a wild animal in captivity may be found guilty of animal cruelty—and may be liable for the injury to the dog’s owner. For instance, a Pennsylvania appellate court upheld a man’s conviction for killing a dog that was harassing the man’s deer. The state’s animal cruelty law included an exception for killing dogs found in the act of destroying domestic animals, but “semi wild” deer in captivity weren’t included in the law’s definition of a domestic animal. (Com. v. Ingram, 926 A.2d 470 (Pa. Super. Ct. 2007).)

Check your local law and make sure it is recent law you are checking.

And note that whether a predatory dog got away or was shot, the livestock owner may still sue the dog's owner for the damages it caused—the value of the dead livestock or other losses resulting from the injuries. In some states, like California, the dog owner may be liable for twice the amount of the actual damages (Cal. Food & Agric. Code § 31501).

 

Concluding Thoughts:

A dog may be a beloved pet to you, but ownership imposes significant legal responsibilities upon the owner. Equally appalling to some dog owners are the powerful laws that allow persons to harm or even kill your pet under certain circumstances. And then sue you for what your now dead pet did!

Too many dog owners do not realize that many people do not like dogs and, indeed, detest and fear them. Those persons have rights equal to you and, at times, greater rights relating to your dog than you do. And in a rural area with live stock, your care must be far greater given the tremendous power given to farmers and ranchers to protect their own animals. It is a common misconception for people on vacation to assume their dogs can run free when, in reality, their dogs are possibly in greater danger near livestock than they would be in the City.

The wise dog owner will take steps to protect the public and livestock and not assume that the dog will obey the law. Good insurance, including umbrella insurance, is also a wise precaution. Training your dog and taking proactive steps to leash them when in a situation in which they are likely to lose control is always wise.

And if you are one of the people seeking protection from dogs, your best solution is not “self-help” but to contact local animal control.  Poison left out almost certainly means litigation and criminal action against you and even if you label the area, keep in mind that children do not read signs often and if one is injured by your poison you are likely facing significant time in prison. Do not let emotions overcome common sense.

A rancher known to the writer, a dog lover and hunter, once commented that if people knew his milk cows and how sweet they are they would not let their dogs harass them, chase them, and nip at their heels. He says it happens weekly and while he would never put poison out, he often fantasizes about taking a shot gun to the dog…but then realizes it’s not the dogs at fault but the owners…”And you’d have me in prison if I did what ought to be done…”