California Civil Jury Instructions (CACI) (2017)

463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements

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463.Dog Bite Statute (Civ. Code, § 3342)—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant]’s dog bit [him/her]
and that [name of defendant] is responsible for that harm.
People who own dogs can be held responsible for the harm from a dog
bite, no matter how carefully they guard or restrain their dogs.
To establish [his/her] claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] owned a dog;
2. That the dog bit [name of plaintiff] while [he/she] was in a public
place or lawfully on private property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s dog was a substantial factor in
causing [name of plaintiff]’s harm.
[[Name of plaintiff] was lawfully on private property of the owner if [he/
she] was performing any duty required by law or was on the property
at the invitation, express or implied, of the owner.]
New September 2003; Revised April 2007
Directions for Use
Read the last optional paragraph if there is an issue regarding whether the plaintiff
was lawfully on private property when he or she was bitten.
For an instruction on common-law liability based on the defendant’s knowledge of
his or her pet’s dangerous propensities, see CACI No. 462, Strict Liability for
Injury Caused by Domestic Animal With Dangerous Propensities—Essential
Factual Elements.
Sources and Authority
• Liability for Dog Bites. Civil Code section 3342(a).
• This statute creates an exception to the general rule that an owner is not strictly
liable for harm caused by a domestic animal absent knowledge of the animal’s
vicious propensity.(Hicks v. Sullivan (1932) 122 Cal.App. 635, 639 [10 P.2d
516].)
• It is not necessary that the skin be broken in order for the statute to apply.
(Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176 [80 Cal.Rptr.2d 173].)
• “The defenses of assumption of the risk and contributory negligence may still
be asserted” in an action brought under section 3342. (Johnson, supra, 68
Cal.App.4th at p. 176.)
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• “A veterinarian or a veterinary assistant who accepts employment for the
medical treatment of a dog, aware of the risk that any dog, regardless of its
previous nature, might bite while being treated, has assumed this risk as part of
his or her occupation.” (Nelson v. Hall (1985) 165 Cal.App.3d 709, 715 [211
Cal.Rptr. 668], original italics.)
• “[Plaintiff], by virtue of the nature of her occupation as a kennel worker,
assumed the risk of being bitten or otherwise injured by the dogs under her care
and control while in the custody of the commercial kennel where she worked
pursuant to a contractual boarding agreement. The Court of Appeal correctly
concluded a strict liability cause of action under the dog bite statute (§ 3342)
was therefore unavailable to [plaintiff].” (Priebe v. Nelson (2006) 39 Cal.4th
1112, 1132 [47 Cal.Rptr.3d 553, 140 P.3d 848].)
• The definition of “lawfully upon the private property of such owner” effectively
prevents trespassers from obtaining recovery under the Dog Bite Statute.
(Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358 [197 P.2d 59].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1408–1412
California Tort Guide (Cont.Ed.Bar 3d ed.) § 3.2
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, § 6.12 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 2:16
464–499. Reserved for Future Use
CACI No. 463 NEGLIGENCE
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