A Dog Bite, A Burst Pipe, And
The Dangers Of The Wrong Side Of The Road!

So, if a tenant’s dog bites a neighborhood youngster, we know the tenant will be reaching into his desk drawer for his tenant’s policy of insurance, but is the landlord also liable?

In Long Beach, California, a couple, the Blackburns, leased a residence from a Gerald Collins, under a 1993 rental agreement that authorized the Blackburns to have a springer spaniel on the property.  As it turned out, the springer spaniel died in February 1994.  Shortly thereafter, in April 1994, the couple acquired a dalmatian.  Still later, in 1999, the Blackburns acquired Kemo, a pit bull and the subject of our story.

In court proceedings, Collins testified that although he knew the lease had authorized a springer spaniel to be on the property, he was not aware of any dogs at the residence.  He also testified that when he learned of  the dog bite incident, he was not surprised to learn about the presence of dogs at the residence because “[t]he rental agreement permitted a dog in the house.”

Since Collins was unaware of the dog’s presence, he obviously did not know of Kemo’s dangerous propensities.  As a consequence, the landlord was not held liable for the youngster’s injuries since under California law, a landlord owes a duty of care to his tenant’s invitees “when the landlord has ‘actual knowledge’ of the dog’s vicious nature in time to protect against the dangerous condition on his property.”

In matter arising out of Richmond, California, a worker was unfortunately injured on an electrical job when a hot water pipe burst.  In addition to suing the current owners of the property and his foreman, the worker also sued the prior owner of the property, asserting that the cause of the rupture “stemmed from a poorly soldered together pipe joint.” 

Again, we know that the current owners of the property will be reaching for their policy of insurance, but is the prior owner of the property liable?  The court noted that as the prior owner,

“Chevron had no ability to inspect the pipe, test it or warn workers coming on the property about the water pipe.  Chevron could not obtain insurance for property it did not own, or take precautions to prevent injuries after it had given up ownership and the ability to control the property.”

The court thus determined that the prior owner was not liable, even if the prior owner negligently created the condition, warning, however, that the prior owner might be held liable if he knowingly concealed the dangerous condition from others.

“A [seller] is under a duty to disclose to the [purchaser] and hidden defects which he knows or should know may present an unreasonable risk of harm to persons on the premises, and which he may anticipate that the [purchaser] would not discover.”

The newspapers periodically report of unfortunate incidents in which an individual is struck by an automobile on the highway.  Have you ever wondered what circumstance would lead a pedestrian to be in such a precarious and dangerous situation?

In another California action, it was reported that Morena Hernandez “had been acting strangely for four days prior to her death.  She believed someone had placed a spell on her, that she was being followed, and that she was bewitched.  She suspected the food she was given had been poisoned.” 

Mrs. Hernandez’ husband and others thought it best that the couple retire temporarily to the tranquil environment of a relative in Mendota, California.  The couple arrived at their new residence at approximately midnight and attempted to sleep.  Mrs. Hernandez, however, suddenly roused her husband and complained, “‘[t]hey’re going to find us here’ and ‘I feel ill.  I want to go to a hospital . . . . let’s go see a doctor.’”

Mr. and Mrs. Hernandez left the relative’s home on foot and at approximately 2:00 A.M., a Sheriff’s deputy, summoned by the family, found the couple walking down a street nearby.

In California, a peace officer can detain or order detained an individual for up to 72 hours if the individual “as a result of mental disorder, is a danger to others, or to himself or herself . . . .”  The deputy found Mrs. Hernandez, however, to be articulate and calm during his evaluation and thus decided not to detain her.

Mrs. Hernandez nonetheless told the deputy that she and her husband would like to go to a “nice hospital” to speak with psychiatrist.  An ambulance was thus called for this purpose.  When the ambulance arrived, the emergency medical technicians (EMT’s) were advised by the deputy that he was not detaining Mrs. Hernandez, that the transport to the hospital would be voluntary, and could be terminated at the option of Mr. and Mrs. Hernandez.

When the couple reached the hospital, and the driver opened the door of the ambulance, Mrs. Hernandez “surprised even her husband by dashing away.”  Unfortunately, before anyone could stop her,

“Mrs. Hernandez made her way across one side of Highway 99, over the median barrier, and out into the roadway on the other side.  She attempted to flag down one vehicle, without success, and was then hit and killed by another.”

Mr. Hernandez, individually, and as administrator of his deceased wife’s estate, filed an action against the EMT’s and their employer, alleging negligence in “failing to observe and supervise Mrs. Hernandez, failing to restrain her and prevent her from straying from their care, and failing to apprehend her once she had done so.”  Are the EMT’s to be held liable?

Since the EMT’s were not responsible for detaining Mrs. Hernandez under the instructions of the Deputy Sheriff, the court determined that the EMT’s had no legal duty to prevent their voluntary charge from leaving their ambulance, notwithstanding their belief or suspicion that she was mentally unbalanced.

The moral of these stories?  The Department of Homeland Security will not protect you from all dangers that lurk in the homeland!  Be careful out there!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from The Journal 
 Myles M. Mattenson © 2004