Drake

Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants’ dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including the standard instructions on negligence. Relying on dicta in this court’s decision in Hagen v. Laursen (1953) 121 Cal.App.2d 379 [ 263 P.2d 489 ], the trial court indicated that instructions on negligence, if given, would be modified to limit defendants’ duty to the taking of ordinary care to avoid harm by a domestic animal with dangerous propensities of which defendants knew or should have known. We hold that the dicta in this court’s opinion in Hagen v. Laursen, supra, upon which the trial court relied, is incorrect to the extent it would engraft onto negligence legal criteria applicable to strict liability. Thus, the Hagen court erred in stating that in an action for negligent harm done by defendants’ dog, plaintiff must plead and prove that the injury was the result of “the vicious…

Today, the majority holds that the owners of a dog not previously vicious or dangerous are liable in negligence for failing to control the animal because it is foreseeable that such a dog will jump up on people and knock them down. This greatly, and I think mistakenly, expands the liability of dog owners in California.

As the majority sees it, “[although the jury found Bandit had no vicious or dangerous propensity, that finding did not resolve the question of negligence tendered by plaintiff’s complaint.” (Maj. opn., ante, at p. 931.) To the contrary, that finding did resolve the question of negligence because, as we shall see, absent such a propensity the owners had no duty to control or confine their dog. By drawing an untenable distinction between dogs which are dangerous on the one hand and those which pose a foreseeable risk of harm on the other, the majority has transmogrified the question of legal duty into a factual issue for the jury. This unwarranted distinction lies at the heart of the majority’s misperception of the element of duty. It is our task, and not the jury’s, to determine if the defendants had a duty to confine or constantly control their dog. Under the law,…

Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants' dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including the standard instructions on negligence. Relying on dicta in this court's decision in Hagen v. Laursen (1953) 121 Cal. App.2d 379 [ 263 P.2d 489 ], the trial court indicated that instructions on negligence, if given, would be modified to limit defendants' duty to the taking of ordinary care to avoid harm by a domestic animal with dangerous propensities of which defendants knew or should have known. We hold that the dicta in this court's opinion in Hagen v. Laursen, supra , upon which the trial court relied, is incorrect to the extent it would engraft onto negligence legal criteria applicable to strict liability. Thus, the Hagen court erred in stating that in an action for negligent harm done by defendants' dog, plaintiff must plead and prove that the injury was the result of…