An overview of California’s dog bite laws

A pit bull mauls a one-year-old in East Los Angeles. A man walking in the neighborhood is killed by a pack of dogs. A Bay Area crime suspect loses her scalp to an aggressive police dog.

These shocking headlines are not unusual. According to the American Veterinarian Association, 4.5 million people are bitten or attacked by dogs every year in the United States. More than 800,000 of these victims require medical attention, and young children are the most common dog bite victims. Los Angeles County alone sees over 20,000 dog bites per year, and police dogs are responsible for more than 200 of them.

What follows is a general overview of California's dog bite laws and relevant cases.

Civil Code

California's dog bite statute is found in Civil Code Section 3342. It holds:

(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.

The statute, which was first codified in 1953, imposes strict liability on any California dog owner for harm caused when his or her dog bites someone. Other states presume that a dog is not dangerous until it inflicts its first bite. This is commonly referred to as the "one-free bite" rule. California does not follow the "one-free bite" rule. Instead, a dog owner is liable the very first time his or her dog bites someone. Dog bite cases are usually - but not always - covered under the owner's renter's or homeowner's insurance policy.

What is a 'bite?' Most people assume that a dog bite requires an open wound or puncturing the skin. This is not the case, as discussed in Johnson v. McMahon (1998) 68 Cal.App.4th 173. There, a repairman was injured when the homeowner's dog nipped at his legs and bit his pants, causing him to lose his balance and fall off a ladder. The Court ruled that to bite means to "seize with the teeth," and the statute does not require the victim's skin to be broken by the bite.

The veterinarian's rule is an exception to the strict liability mentioned above. Similar to the assumption of the risk doctrine, the veterinarian's rule shields a dog owner for dog bite injuries suffered by a veterinarian treating the dog. Nelson v. Hall (1985) 165 Cal.App.3d 709. The California Supreme Court extended the veterinarian's rule in the 2006 case of Priebe v. Nelson, holding that the rule also applies to kennel workers. Priebe, 39 Cal.4th 1112.

Dog bite cases often implicate local leash laws. For example, in the City of Los Angeles, L.A.M.C. Section 53.06.2 holds:

Every person owning or having charge, care, custody or control of any dog shall keep such dog exclusively upon his own premises provided, however, that such dog may be off such premises if it be under the control of a competent person and restrained by a substantial chain or leash not exceeding six feet in length, or under the control of a competent person on a dog exercise or training area.

Violation of leash law statutes is negligence per see, creating an alternative avenue for dog bite victims to impose liability on professional dog walkers who may not be the pet's owner.

What about areas where dogs are permitted to be "off-leash" - for example, at dog parks? Most dog parks have regulations requiring owners to maintain control of their dogs even when they are 'off leash.' The Court of Appeal recently held that dog park visitors do not assume the risk of being bit or injured by dogs who are off-leash simply because park rules allow dogs to walk around off-leash. Wolf v. Weber (2020) 52 Cal.App.5th 406. This is important in a city like Los Angeles, which has a dozen dog parks. Other rules for Los Angeles dog parks can be found at the Los Angeles LA parks.org website.

Law Enforcement Dogs

What happens when a police dog bites someone? Section 3342 continues:

(b) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) against any governmental agency using a dog in military or police work if the bite or bites occurred while the dog was defending itself from an annoying, harassing, or provoking act, or assisting an employee of the agency in any of the following:

(1) In the apprehension or holding of a suspect where the employee has a reasonable suspicion of the suspect's involvement in criminal activity.

(2) In the investigation of a crime or possible crime.

(3) In the execution of a warrant.

(4) In the defense of a peace officer or another person.

The Code makes it clear that strict liability will not attach when a law enforcement dog bites a crime suspect or assists officers in their law enforcement tasks. But the Code requires law enforcement agencies to have policies and procedures in place delineating when the use of police dogs is appropriate. If a police dog bites or attacks an innocent bystander, strict liability returns.

Excessive Force

A crime suspect who is bitten by a police dog might attempt to impose liability using federal law - that is, by alleging that the use of the police dog constituted excessive force. These cases are brought under 42 U.S.C. §1983, essentially arguing that the use of the police dog was an unreasonable seizure under the 4th Amendment. Supreme Court precedent generally imposes an objective standard on the use of force, which usually tends to favor the police officer. See Graham v. Connor, 490 U.S. 395. Ninth Circuit precedent does the same in the police dog context because of qualified immunity.

A key case is Lowry v. City of San Diego (2017) 858 F.3d 1248. There, a corporate employee returned to her office after a night of drinking. She set off the building's silent burglar alarm, and San Diego Police officers arrived on scene with a police dog named Bak. Officers announced their presence and warned that Bak would be unleashed. They received no response because the employee had fallen asleep. Bak was unleashed, found the sleeping employee, and bit her on the face. Officers called off Bak once they discovered the sleeping employee was not a threat.

The Court in Lowry listed several factors which play into the qualified immunity analysis, including the severity of the crime occasioning the arrival of officers, as well as whether the officers are faced with an immediate threat. The Court affirmed summary judgment for the San Diego Police officers, noting that the officers provided verbal warnings to a would-be burglary suspect before unleashing Bak into a dark office building. The dissent in Lowry disagreed, holding that it was unreasonable for officers to unleash Bak on an intoxicated employee who was simply sleeping in her office.

It is worth noting that the Supreme Court denied certiorari in the 2020 police dog case of Baxter v. Bracey,140 S.Ct. 1862. Justice Clarence Thomas dissented, arguing that the Supreme Court's qualified immunity jurisprudence is long overdue for judicial revision. Until this happens, crime suspects who are the victims of police dogs face an uphill battle in their excessive force lawsuits.

Conclusion

We all love dogs. Yet, we have all seen pictures of serious dog bite injuries and read stories about harm caused by man's best friend. The headlines often involve police dogs, which are trained to bite without relenting. Dog bite cases in general can be tricky; victims of police dogs face an even harder obstacle because of qualified immunity and Civil Code Section 3342. The above discussion can serve as a starting point when pursuing a dog bite injury case, whether it is against a private individual or law enforcement agency.