Ordinances and Case Law Address - Essay Example

13 June Assignment Trial Brief: Introduction: James Dawson, the plaintiff, is a US Postal Worker. On a usual basis, he would enter the property of Mrs. Hanson, address 5634 E. Michigan, Fresno, CA, 93704 to deliver the mail. Mrs. Hanson owned a Labrador / Pitbull mix by the name of Archie, a ferocious dog that would often growl at anyone who entered the property. The main property of Mrs. Hanson has become the subject of litigation and is owned by Brock Mason. There has also been an instance stated of the dog barking at Mr. Williams, the next door neighbour, who was in his ‘own’ backyard, whenever he would either eat or weed. There have been three main occasions when Mr. Hanson was to deliver the mail and Archie lunged at him, barked and growled, while he put the mail in the mail slot. From this day onwards, Mrs. Hanson, Archie’s owner decided to keep the dog in the backyard during the time of delivery of the mail in order to keep the dog from lunging at Mr. Dawson. Brock Mason failed to reply to a written complaint made by Mr. William’s regarding the dog’s atrocious behaviour and need to bark and growl at him all the time even though he never stepped onto the property rented by Mrs. Hanson. However, upon entering the very house of Mrs. Hanson, Mr. Dawson was bitten by her dog, Archie on the 15th of August, 2009. The dog lunged because it was able to escape from the backyard due to the negligence of Mrs. Hanson’s son, Joshua Hanson, not having been able to close the door properly in order to prevent the dog from escaping, despite knowing that it was ferocious and had a habit of growling at the neighbours and anyone else who happened to chance upon the property. Mrs. Hanson came forward and tried to get the dog to let go but her son was forced to switch on the hose pipe and finally make the dog leave Mr. Dawson’s leg. The main witness that noticed the entire injury take place was Ms LaVerne Coles. The paramedics were immediately called by her, and Mr. Dawson was rushed to the hospital arriving upon which he received 33 stitches as well as proper follow up care from Dr Jackson Ellis. Dr. Ellis further asked him to visit Dr Ivan Gomez for checking his torn rotator which had suffered damages during the fall when the dog bit him. Mr. Dawson was also made to attend a physical therapy session for the next eight weeks following the accident. Not only did the entire episode cost Mr. Dawson a heavy amount to recover fully from the damages and injuries caused by the dog, but the entire process also caused Mr. Dawson to reduce his earnings due to a pay cut from $55,700 to $53,500 on an annual basis. Law and Argument: In California statutes, ordinances and case law address the regulation of dogs and their owners, and the bases for compensation in the case of injury. For example, in cases involving certain types of dogs, i.e., dangerous dogs (dogs with a "dangerous propensity" or "vicious propensity") the owner of the dog may be liable for injury, without regard to fault (strict liability). In other situations, owners, landlords or other persons who "keep" or "harbor" dangerous dogs may be liable when the dogs attack. The facts of each case will often determine the outcome of that particular case. California is a strict liability state, meaning that a dog owner is liable for injuries inflicted by his dog upon a human being, even if the owner was not negligent and the dog had never bitten anyone before. California is one of the states that has a dog bite statute, meaning a law that repudiates in whole or part the common law's requirement of "scienter" (i.e., knowledge that the animal had previously injured a person in the same manner, such as by a bite). California Civil Code section 3342 provides as follows: 3342.  (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.  A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.” California permits a person to recover damages for canine-inflicted injuries of all types, based on the doctrine of negligence. The non-bite cases show that neglience can be based on: mishandling a dog (Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191  [horse in a parade]) ineffectively controlling or failing to control a dog (Drake v. Dean (1993) 15 Cal.App.4th 915 [leaping dog] putting a dog in a situation that foreseeably can cause injury (Baley v. J.F. Hink & Son (1955) 133 Cal.App.2d 102  [small dog on a leash]) or violating an animal control law (Delfino v. Sloan (1994) 20 Cal.App.4th 1429 [violation of  leash law]).  In Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191, a parade horse injured two bystanders. The horse had never before manifested a dangerous propensity. On that day, however, the horse was "rearing and whirling and backing around." 15 Cal.2d at 193. The court held that nonsuit was improper on the count that alleged negligent supervision and management of the horse. The case creates liability for mishandling a dog or any other animal. In Drake v. Dean (1993) 15 Cal.App.4th 915, a dog knocked a woman to the ground. The court cited with approval the following general rule: "[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from that negligence." 15 Cal.App.4th at 926."The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen." 15 Cal.App.4th at 926. If the landlord fails to control their property they can also be held liable for bites committed by the dog off their property. In Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, a tenant's dogs attacked plaintiff four blocks away from where the dogs lived. The plaintiff sued the dog's owner and the owner's residential landlord. The court held that the landlord could be liable, explaining the law as follows: "If the dog is taken on a leash by its owner, off the premises, prevention of an attack by the dog may be beyond the landlord's control. But if the dog escapes the landlord's property because of defects in that property, the landlord is liable for the off-site injuries." This could include a duty to ensure that appropriate fencing prevented dogs from roaming the neighborhood. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated that: "We hold that a landlord has a duty to exercise reasonable care in the inspection of his commercial property and to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises." In that case, the plaintiff was bitten in a liquor store by a dog owned by the tenant who was operating the business. The court noted that it is reasonably foreseeable that guard dogs in commercial establishments open to the public will injure someone. The court also held that the landlord could not avoid liability by failing to inspect the premises and thereby claim that he had no knowledge of the dog. In a residential landlord case, the court noted that a different duty of inspection may apply, but that a landlord could still be liable: "a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required . For this reason we hold that a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant's dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise." (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.) (California Dog Bite Law) Resulting Damages: The damages suffered by the plaintiff were as follows: 1. 33 stitches on the left leg. 2. Torn right rotator (shoulder) cuff due to fall 3. Mental trauma due to the incident resulting in sleep trouble and nightmares. Conclusion: Mr. Dawson suffered immense damages due to being injured by the dog of Mrs. Hanson and thus should be compensated properly in order to meet all his financial losses that he suffered because of the same. Works Cited "California Dog Bite Law." Lawzilla.com. Web. 14 June 2011. . "Dangerous and Vicious Dogs." DOG BITE LAW - the Most Trusted and Extensive Resource for Dog Bite Victims, Parents of Victims, and Dog Owners Needing Legal Information. Web. 14 June 2011. . Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 Donchin v. Guerrero (1995) 34 Cal.App.4th 1832 Portillo v. Aiassa (1994) 27 Cal.App.4th 1128 Drake v. Dean (1993) 15 Cal.App.4th 915 Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191 Read More