Pet Provision Called Into Question
An 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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