Zoltanski v. Eaton, 82 A.D.2d 573 (N.Y. App. Div. 1981)

A landlord can be liable for injuries caused by a tenant’s dog if the landlord knew of the dog’s viciousness before leasing the property and failed to take reasonable measures to protect others.

Summary

This case addresses a landlord’s liability for injuries inflicted by a tenant’s dog when the landlord knew of the dog’s vicious propensities before leasing the property. The plaintiff was bitten by a German Shepherd owned by the tenant. The court held that the landlord, Mrs. Zoltanski, could be liable if she knew about the dog’s vicious nature before leasing the premises and did not take reasonable precautions to protect third parties. The court emphasized that landlords must exercise reasonable care not to expose others to unreasonable harm, especially when they create the risk.

Facts

Sophie Zoltanski inherited a property with two houses, which she rented out. Prior to leasing one of the houses to Carl Kenyon, she observed Kenyon’s German Shepherd dog tied up on the property. The dog was barking loudly, jumping, growling, and acting ferocious. Mrs. Zoltanski later leased the property to Kenyon on an oral basis. The plaintiff, a 14-year-old boy, went to Kenyon’s property to get the dog and was bitten on the mouth and arm.

Procedural History

The plaintiff sued the landlord, Sophie Zoltanski, for damages. The Supreme Court granted summary judgment for the husband, who had no interest in the property, but denied it for Sophie Zoltanski. The Appellate Division affirmed the denial of summary judgment for Mrs. Zoltanski and granted her leave to appeal to the Court of Appeals.

Issue(s)

Whether a landlord can be held liable for injuries caused by a tenant’s dog if the landlord knew of the dog’s vicious propensities prior to leasing the premises and failed to take reasonable measures to protect third parties.

Holding

Yes, because a landlord who knows of a tenant’s vicious dog before leasing the premises has a duty to take reasonable precautions to protect third persons from foreseeable injuries, and the failure to do so may result in liability. The court stated: “Considerations of public policy…require that a landlord who, prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury has a duty to take such precautions as lie within the control of the landlord reasonably to protect such third persons from the injuries to be foreseen if no such precautions are taken.”

Court’s Reasoning

The court reasoned that while landlords generally are not liable for animals kept by tenants after the lease begins unless the landlord has control of the premises and knowledge of the animal’s viciousness, this case was different because the landlord allegedly knew of the dog’s viciousness before the lease. By leasing the property to the dog’s owner, the landlord may have affirmatively created the risk that injured the plaintiff. The court emphasized that landlords, like others, must exercise reasonable care not to expose third persons to an unreasonable risk of harm. The court balanced the need to provide housing for those who legitimately keep watchdogs with the need to protect third parties from harm. The court explicitly stated that the landlord would not be subject to the same strict liability as the tenant, who is the dog’s harborer. However, the landlord has a duty to take reasonable precautions, such as including provisions in the lease regarding confinement or control of the dog, at the inception of the lease when the landlord is aware the tenant will keep a guard dog. The court held that the specific precautions needed and whether the landlord’s failure to take precautions was the proximate cause of the injury are factual issues for trial.