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Pet Provision Called Into Question

landlord helpAn Appellate Court in Wisconsin has sided with two landlords there by determining that they were not liable for injuries a small child received when he was attacked by the tenants’ Pit Bull.

The parents of the injured boy, who lived next to the single-family rental property, argued that the landlords’ lease made them liable because the lease expressly prohibited keeping a Pit Bull:

“Pet clause”any pet clause negotiated will exclude cats that have not been de-clawed and neutered and any vicious dog which has a history of biting or aggressive tendencies such as Akitas, Pit Bulls, Chows, Rottweilers, Dobermans, German Shepherds, Malamutes, Huskies, Wolf Hybrids, and Mastiff breeds. If pets are allowed, additional security and or rent is required and tenant agrees to have the carpets professionally cleaned and pet treated when vacating.”

Before getting to their decision, the judges make mention of the fact that the language of this lease provision is faulty:

“We observe that this lease provision appears to be ambiguous regarding prohibited dog ownership. Under a broad reading, it bans tenants from keeping any dogs on leased properties that fall into either or both of two categories: (1) specific dogs, regardless of breed, reasonably believed to be vicious because of the dogs’ individual histories of biting or aggressive tendencies, and (2) all dogs belonging to a vicious breed, including but perhaps not limited to (such as) one of the ten identified breeds. Under a narrow reading, it bans only those dogs belonging to one of the ten identified breeds.”

However, the outcome of this particular case would not have changed because of that language, it could be difficult for a landlord to enforce, depending on how broadly or narrowly the provision is read.

The injured boy’s parents told the court that having this lease provision, and not enforcing it, makes the landlords liable for their son’s injuries.

But the Wisconsin courts have previously created a public policy exception to what is a general rule in many states –that landlords are liable for dog bite cases. In Wisconsin, the landlord is only liable if the animal in question belongs to the landlord or is under their control. Being in control of the rental property is not enough to show control over the dog.

The reason for this public policy decision is that if the court allows liability for a case like this, then there is “no sensible or just stopping point” for liability against landlords. In Wisconsin, the law does not require a landlord to “fill the role of an insurer” for the acts of a tenant.

One consideration in its decision was the court’s view that permitting liability would present fact finders in some cases with the overly complex task of determining the level of awareness that landlords had, or should have had, regarding the hazards represented by their tenants’ dogs, perhaps leading to reliance on “legal fictions.” An injured plaintiff could always make the argument that a landlord should have known of the presence of the tenant’s dog or should have known of its dangerous propensities. This would lead to [c]harging these landlords with constructive knowledge of the propensities and behavioral history of each tenant’s dog.”

An additional concern was that plaintiffs might spend private and public resources in pursuing cases against landlords, who are on average more wealthy than tenants, on dubious theories of liability instead of pursuing tenant dog owners, who are on average less wealthy, but who have the best opportunity to prevent injuries.

Under Wisconsin statutes, the dog’s owner in strictly liable–meaning liability is presumed.

The sound policy, the court concluded, is one ensuring that liability is placed upon the person with whom it belongs rather than promoting the practice of seeking out the defendant with the most affluence.

Previously, judges have expressed fear that landlord liability in this context would have drastic results, such as encouraging landlords to preclude all of their renters from having dogs for fear of liability.

It’s important to note that the reasoning of this court is not followed in all states, and landlords outside of Wisconsin may see a different outcome in dog bite cases.

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  • Kumar

    Nice article. Good “Common Sense” ruling from Wisconsin judges. All other states should follow the same policy.

  • Keith Kennedy

    I read this and think “it’s about time that blame and responsibility is placed with the right party.” As Landlords, how can anyone be expected to police each individual tenants comings and goings.

    We’ve got dogs on our property and we are clear about that in our Lease Agreement. However, we can’t prove that anyone has a dog. Tenants are very clever when they want to hide something and unless you are camping outside their door, there is just no way to prove this stuff.

  • morelandlords

    See this is where it’s scary to be a landlord. This should have never gone to court, landlord should have been able to write a letter saying “judge please be reasonable” and had this case thrown out immediately.

    As it is the landlords probably had to paid tens of thousands of dollars to some attorney to fight this for years, notice this is the decision from the Appellate court meaning some lower court sided with the neighbors!

    Sure they can sue to get their money back but that will take more time and the people might never pay. I still have judgments against renters from 2005 that have never paid, but at least with this couple he knows where they live and can put a lien against their property if they don’t pay.

    And I know there is insurance that might cover the court costs and attorney’s fees but that just means your insurance rates will go up, you don’t win in the end when you have insurance, and you can switch insurance companies but they all share information. Trust me I use to do insurance, the insurance companies always win.

    I love the “It’s important to note that the reasoning of this court is not followed in all states, and landlords outside of Wisconsin may see a different outcome in dog bite cases.”

    WTF?!? You mean there’s States where the judges *don’t* use common sense?

    “encouraging landlords to preclude all of their renters from having dogs for fear of liability.”

    Seems very reasonable to me, sounds like I need to check our pet policy again, at least make sure renters are required to keep additional insurance to safeguard against this.

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