Many apartments and rental properties exclude dogs. However, in the State of Texas, the general rule is that a property owner is not responsible to third-parties for the negligence of their tenant. Why, then, other than the possibility of damage by the pet, do so many not allow dogs? There are some exceptions to this general rule that, if not considered and accounted for, may result in liability for the landlord. To understand how it works, one should first understand how the theories of liability for dog attacks work in Texas and then how they can be extended to cover landlords.
Texas Dog Bite Liability Theories
There are two main theories of liability for dog attacks in Texas: negligence and strict liability. Within the negligence theory, there are two causes of action: general negligence claims and negligent handling. Under a general negligence claim, "a possessor of a domestic animal which has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm caused thereby" Marshall v. Ranne 511 S.W.2d 255 (Tex.1974). The animal class is defined as follows: "Domestic Animals: Such as are habituated to live in or about the habitations of men, or such as contribute to the support of a family." Powers v. Palacios, 794 S.W.2d 493 (Tex.App--Corpus Christi, 1990). Thus, the question is whether the dog possesses dangerous propensities abnormal to the class of a domesticated animal. This has been further clarified recently by the Houston Court of Appeals in Houston v. Jenkins, 363 S.W.3d 808, 816 (Tex.App--Hous. [14th Dist], 2012): "the fact that the dog has even attempted to attack human being is sufficient to bring its possessor within the rule stated in this Section."
The second negligence theory of liability for Texas dog bite cases applies when the dog only has dangerous propensities normal to its class. This is the rule that holds dog owners responsible for knowing when a not normally vicious dog is likely to become vicious—such as a mother with pups around strangers. The elements that must be proven for a negligent handling case are:
1) the defendant was the owner or possessor of the animal
2) the defendant owed a duty to exercise reasonable care to prevent the animal from
injuring others
3) the defendant breached the duty, and;
4) the defendant's breach proximately caused the plaintiff's injury.
See Labaj v. Vanhouten, 322 S.W.3d 416, (Tex.App--Amarillo, 2010).
Lastly, there is strict liability. Strict liability can be common law or statutory. Most statutory strict liability causes of action are a codification of the common law. "In a strict liability case, the plaintiff must satisfy a 3-part test: (1) the animal is of a vicious, dangerous, or mischievous nature; (2) the owner has actual or constructive knowledge of such characteristics; and (3) the injury or damage resulted from such propensities of which the owner had knowledge." Petry v. Gasca 1994 WL 132772 (Tex.App--Hous. [14th Dist.]. No negligence on the part of the owner is required where this is shown.
Landlord Liability
The general rule that a landlord is not responsible hinges largely upon the lack of knowledge that the tenant's dog is dangerous. As can be seen from above, "knowledge of a dangerous propensity of the animal is a prerequisite to imposed liability on the owner of an animal under either the strict liability or negligence theories." Petry v. Gasca 1994 WL 132772 (Tex.App--Hous. [14th Dist.]. Since a tenant typically is not going to tell the landlord of the dog's dangerous propensities, the landlord can often avoid liability by simply claiming a lack of knowledge.
However, there are some exceptions to the general rule in Texas. In the situation where the dog bites a guest in the home, if the landlord was aware of a prior bite or attack or general viciousness of the dog and he let it remain on the property, he could be found personally liable for the dog's conduct. Additionally, if there is knowledge of the dog's presence and the dog gets out through a known dilapidated fence that the landowner failed to repair, the landowner may be liable when the dog gets out and attacks someone.
How To Protect A Landowner From Liability
The best way to protect oneself as a lessor is to not allow the tenant to keep a dog on the property. However, since tenants do not always disclose their dogs, the property owner would be wise to take a few affirmative actions to protect himself. One tip from an attorney that handles dog attacks is to always include a provision in the lease that states "no dogs are allowed" or defines exactly what dogs can and cannot be there. If the landlord is going to allow a dog, make sure it is a breed that is harmless and that the lease specifies that no other dogs are allowed without prior written approval. Exclude known dangerous breeds such as pit bulls and rottweilers because you cannot control how the owner raises them and if these are not raised properly, they can do substantial damage. This is not a guaranteed fix, but it will be evidence that the owner was not aware of the dog if no written approval is given.
Additionally, the landowner needs to make sure any parts of the property he is responsible for are in a state of good repair. Inspect it and document the inspection. If a repair is requested, do it immediately--especially if there is a pet in question. Lastly, make no exceptions to the rule you create. Once you violate the rule for someone, it casts doubt on the strictness of your enforcement on others.
Importance of Insurance Coverage
Insurance not only covers judgments, it pays for the lawyer who defends you. But, if there is no coverage, you get to foot the bill for both. Most homeowner's policies do not cover injuries caused by the pet of a renter. Some even exclude all injuries caused by animals whether it is the property owner's pet or the renter's pet. Thus, the only way a landowner can be certain he is covered is to buy a policy for himself and require the renter to get renter's liability insurance. The problem with this is that now the landowner must find a way to make sure the renter does not just cancel the policy to save money after providing the proof of coverage to the property owner. This is virtually impossible to regulate. However, if the landowner simply excludes dogs, then he can claim the dog is there in violation of the lease terms and, therefore, he did not know of the dog's presence much less dangerous propensities. Thus, it is easier for the property owner to simply protect themselves by excluding dogs.
