Defense Digest 12/08: Court Chews Tenant Up, Spits Landlord Out
By John M. McConnell, Esq.*
Pennsylvania - Property
The court's holding in Underwood v. Wind, 2008 PA. Super. 158, 2008 Pa. Super. LEXIS 2011, was favorable to a landlord but severely punished a tenant for the actions of her two pit bulls. In Underwood, two of the defendant-tenant's pit bulls escaped from her apartment and attacked and injured a minor plaintiff and two good Samaritans who had tried to stop the attack. On the day of the incident, the dogs escaped due to a faulty latch on the tenant's front door. The tenant testified that she had unsuccessfully tried to fix the latch and that the dogs had escaped once before due to the latch failure. The landlord had knowledge that the tenant owned the dogs but also had a verbal agreement with the tenant that her pit bulls were not to reside on the property. Furthermore, the lease between the landlord and tenant expressly stated that no animals were allowed to reside on the premises.
The minor plaintiff and each of the good Samaritans brought suit against the landlord and tenant, alleging personal injuries on negligence and negligence per se causes of action. At trial, the Court of Common Pleas of Allegheny County found that both the defendant landlord and tenant were liable to the plaintiffs, and from that ruling both landlord and tenant appealed.
The defendant-tenant argued in her appeal that the trial court had erred by instructing the jury that she was negligent, per se, simply because she inexcusably allowed her dogs to escape. She also argued the court erred in its instruction to the jury that her dogs' attack of the plaintiffs could be admitted as evidence that the dogs showed dangerous propensities.
The Superior Court denied the tenant's appeal on the grounds that the lower court's jury instructions were consistent with Pennsylvania's standard of liability for a dog owner. No longer do Pennsylvania courts allow a dog "one free bite" before attaching the dog's owner with liability. Commonwealth v. Hake, 738 A.2d 46, 48 (Pa. Commnw. 1999). Rather, Pennsylvania holds dog owners to a negligence standard and mandates that liability can attach to owners two separate ways. First, liability can attach if a dog, while on public or private property, inflicts severe injury on a human being without provocation. Second, an owner of a dog can be liable if their dog attacks a person without provocation and the dog has either (or both) a history of attacking human beings or animals without provocation or a propensity to attack human beings and/or domestic animals without provocation. A dog can be found to have dangerous propensities after only one incident of inflicting severe injury on a person without provocation.
However, the court does not hold dog owners absolutely liable if their dog runs free, despite the owner's exercise of due care. Villaume v. Kaufman, 379 Pa. Super. 561, 550 A.2d 793, 795 (Pa. Super. 1988). Just because a dog injures a person does not mean that the element of causation is satisfied such that liability automatically attaches to the owner. For liability to attach to a dog owner, it must be shown that a dog injures a person and the actions of the dog's owner were a substantial factor in causing plaintiff's injuries.
In Underwood, the Superior Court affirmed the lower court's ruling in regard to the tenant. The court held that the jury was correctly instructed to consider whether the tenant had a legitimate excuse for allowing her dog to get free. The jury was instructed that the tenant should be liable only if her reasoning for her dogs getting free was unexcused and also a substantial factor in the plaintiffs being injured. Ultimately, the tenant was not held liable just because her dogs had escaped, but the jury was able to consider that her dogs had escaped before and that she did not ensure that it did not happen again. The tenant's negligence in allowing her dogs to escape was found to be a substantial factor in causing the plaintiffs' injuries. Moreover, because a dog owner is no longer allowed "one free bite" before liability attaches, it was proper for the jury to consider the dogs' attack of the plaintiffs in their determination of whether the dogs demonstrated having the dangerous propensities needed for liability to attach under Pennsylvania law.
The defendant landlord also appealed to the Superior Court and argued that the lower court erred because it should have given the jury a separate set of instructions for her and the co-defendant tenant. The court found that the landlord was entitled to a new trial because she should have received a separate instruction. The court reiterated that a separate jury charge for each was necessary because an out-of-possession landlord should be held to a much lower standard than a dog owner. The standard for an out-of-possession landlord is that a landlord can be held liable for damages that a tenant's pet causes when it is proven that the landlord knew of the presence of that pet and the pet's violent propensities. Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871, 873 (Pa.Super.1984).
Therefore, since the lower court in Underwood gave the landlord and tenant the same instructions, the Superior Court held that the lower court erred. The landlord was to be given a new trial, at which time the jury was to be instructed according to the standard set forth in Palermo. At the landlord's new trial, the plaintiffs would then have to prove that the landlord knew about the tenant's pit bulls and their violent propensities for the landlord to be found liable.
Ultimately, Underwood is important to insurers as it outlines the strict standard of care that Pennsylvania applies to dog owners and landlords who have knowledge of their tenants' dangerous pets.
* John is an associate in the King of Prussia, Pennsylvania, office. He can be reached at (610) 354-8481, or Jmmcconnell@mdwcg.com
