LANDLORD NOT LIABLE FOR TENANT'S DOG

June 25, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Distinguishing and rejecting out-of-state cases, the Illinois Appellate Court concluded that two landlords were not liable in a dog-bite case, even if they knew their tenants had a dangerous dog.

Besides which, the court added, rejecting the stereotyping of dogs, a breed's reputation for aggressiveness is not enough to establish that a particular dog was unreasonably dangerous. Klitzka v. Hellios, No. 2-03-0334 (2d Dist., May 17).

Haley -- an Akita owned by Mark and Amanda Hellios -- bit young Alexus Klitzka in the face when her mother brought Alexus along on a visit to a house that Mark and Amanda leased from Mark's parent's, Michael and Trudy Hellios.

Mark and Amanda had no insurance, and a negligence complaint was filed on behalf of Alexus against the landlords, Michael and Trudy, alleging they knew their tenants kept a dangerous dog.
Summary judgment was entered in favor of the landlords, and Alexus appealed. Here are some highlights of Justice Robert E. Byrne's opinion (with various omissions not noted in the quoted text):

"Under traditional common law, where the landlord retains control of a portion of the premises leased to the tenant, the landlord has a duty, as the party in control, to use ordinary care in maintaining that part of the premises in a reasonably safe condition. Conversely, it is well-settled in Illinois that a landlord is not liable for injuries caused by a dangerous or defective condition on the premises leased to a tenant and under the tenant's control.

"Therefore, a lessor who relinquishes control of property to a lessee owes no duty to a third party who is injured while on the leased property. The landlord's liability for the leased premises is extinguished because the lessee acquires an estate in the land and temporarily becomes both owner and occupier, subject to all of the responsibilities of one in possession to those who enter upon the land and those outside of its boundaries.

"We must identify the degree to which the landlord retained control over the premises before we consider the foreseeability of the harm.

"Several exceptions to the rule permit a third party to recover damages from a landlord who does not control the premises on which the injury occurred: (1) a latent defect exists at the time of the leasing that the landlord should know about; (2) the landlord fraudulently conceals a dangerous condition; (3) the defect causing the harm amounts to a nuisance; (4) the landlord makes a promise at the time of the leasing to repair a condition; (5) the landlord violates a statutory requirement of which a tenant is in the class designated to be protected by such requirement; and (6) the landlord voluntarily undertakes to render a service.

"Alexus does not argue that any of these exceptions apply to this case.

"Alexus cites only one Illinois case to support her argument that a landlord owes a duty to a third-party invitee for injuries caused by the tenant's animal within the leased premises. In Mangan v. F.C. Pilgrim & Co., 32 Ill.App.3d 563 (1975), the 83-year-old plaintiff fell and was injured when a mouse startled her by jumping out of the oven inside her apartment.

"The Appellate Court held that the landlord owed the plaintiff a duty to keep those portions of the premises over which it retained control in a reasonably safe condition to prevent injury to people who were lawfully present on the premises. The mice infestation was caused by the landlord's failure to maintain sanitary conditions in portions of the building within its control.

"Because the landlord could have corrected the mice problem, the landlord owed a duty to the plaintiff even though her injuries occurred within the apartment, in an area outside of the landlord's control.

"This case is factually distinguishable from Mangan. In Mangan, the landlord's omissions regarding areas over which it had control created the condition that caused the plaintiff's injury. Here, the tenants' affirmative conduct of bringing the dog into the living space of the home, an area over which the landlords had no control, is what might have been the proximate cause of Alexus' injuries.

"In this case, Mark and Amanda paid Michael and Trudy $700 per month for exclusive possession of the home. Acceptance of monthly rental payments by a landlord will generally create a month-to-month tenancy. A month- to-month tenancy can last indefinitely, but can be terminated on 30 days' notice. Alexus contends that a landlord's right to terminate the month-to-month tenancy and regain possession of the home is sufficient 'control over the premises' to impose liability upon the landlord for injuries to a third party suffered in the home.

"Alexus cites several cases from other jurisdictions, but this court is not bound by the decisions.

"Furthermore, the foreign cases Alexus cites are unpersuasive or distinguishable.

"In Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544, 719 A.2d 119 (1998), a child sued the landlord for injuries sustained during a pit bull attack in the tenant's apartment. After acknowledging that a landlord is ordinarily not liable for injuries caused by defects or dangerous conditions on the leased premises, the Maryland Supreme Court concluded that the 'no pets' clause in the lease afforded the landlord the right to demand removal of the dog.

"The right to remove the dangerous animal qualified as the type of control over the premises that justified finding that the landlord breached a duty of care by failing to enforce the 'no pets' clause.
"Unlike the landlord in Matthews, Michael and Trudy did not have a contractual right to limit the number or types of animals that Mark and Amanda could bring into their home. The landlords relinquished control over the presence of animals in the home when they did not insist on a 'no pets' clause as part of the arrangement with Mark and Amanda.

"In Uccello v. Laudenslayer, 44 Cal.App.3d 504, 512, 118 Cal.Rptr. 741, 746- 47 (1975), a tenant's young invitee sued the landlord for negligently failing to prevent the tenant's dog from attacking her. Like Mark and Amanda in this case, the tenant possessed the premises pursuant to a month-to-month tenancy.

"Citing the exceptions that permit an injured invitee to recover from a landlord, the California Court of Appeals stated that '[a] common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury.'

"The appellate court then noted that the landlord could have threatened to terminate the month-to-month tenancy with notice, thereby coercing the tenant to remove the animal or yield possession of the premises completely. Thus, the landlord's right to terminate the lease gave him such control over the premises that he owed a duty to protect the invitee from the tenant's dog.

"Moreover, there was no dispute that the landlord actually knew the dog had a vicious temperament and had previously bitten two other people. Therefore, the court held that 'a duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises.'

"The Uccello court opined that, because 'enlightened public policy' dictated that 'a moral blame attached to [the] landlord's conduct,' a contrary result would be 'socially and legally unacceptable.'
"We decline to attach 'moral blame' to the landlords' conduct here because we disagree with the result in Uccello.

"Courts in other jurisdictions provide persuasive arguments for rejecting the rule announced in Uccello and its progeny. For example, our decision to decline to impose vicarious liability upon a landlord for a tenant's dangerous animal 'promotes the salutary policy of placing responsibility where it belongs, rather than fostering a search for a defendant whose affluence is more apparent than his culpability.' Clemmons v. Fidler, 58 Wash.App. 32, 38, 791 P.2d 257, 260 (1990).

"In Clemmons, the Washington Court of Appeals anticipated the situation presented here: Mark and Amanda were completely responsible for the dog's presence and behavior in the leased premises, but Alexus sued the landlords upon discovering that the tenants lacked insurance to cover her injuries.

"Moreover, 'Holding landlords liable for the actions of their tenants' vicious dogs by requiring them to evict tenants with dangerous dogs would merely result in the tenants' moving off to another location with their still dangerous animals.' Feister v. Bosack, 198 Mich.App. 19, 25, 497 N.W.2d 522, 525 (1993), quoting with approval Wright v. Schum, 105 Nev. 611, 613, 781 P.2d 1142, 1143 (1989).

"The Michigan Court of Appeals and the Nevada Supreme Court recognized that the public policy concerns raised by the Uccello court are not served by imposing liability upon landlords in these cases because such a rule leads to the relocation, not elimination, of the danger the animal presents.

"Even if we were to follow Uccello, we would still conclude that Michael and Trudy were entitled to summary judgment because there was inadequate evidence that their tenants' dog was vicious or that Michael and Trudy knew of such viciousness. 'It is presumed that a dog is tame, docile and harmless absent evidence that the dog has demonstrated vicious propensities.' Goennenwein v. Rasof, 296 Ill.App.3d 650, 654 (1998). Therefore, even if we followed Uccello, Alexus would be required to produce direct or circumstantial evidence that Michael and Trudy actually knew that the dog was dangerous to children.

" 'We will not malign a breed on the basis of hysteria or rumor, and under Illinois law, each dog is to be evaluated individually and is not to be classified as "vicious" merely because of its breed or type.' Goennenwein.

"Therefore, Alexus' reference to the book discussing the Akita breed is irrelevant and inadmissible as circumstantial evidence of Haley's temperament and Michael and Trudy's knowledge thereof.

"There is no evidence of specific occurrences in which the dog bit or even growled at children before the incident. Although the dog was involved in two previous altercations, those involved unfamiliar dogs, not children. Because a dog ordinarily is not a danger to children, Alexus was required to present evidence to show that Michael and Trudy knew that the dog was a danger to children. We conclude that Alexus failed to present adequate evidence on that point to preclude the entry of summary judgment."

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