Opinion
PUGLIA, P. J. Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants’ dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including the standard instructions on negligence. Relying on dicta in this court’s decision in Hagen v. Laursen (1953) 121 Cal.App.2d 379 [263 P.2d 489], the trial court indicated that instructions on negligence, if given, would be modified to limit defendants’ duty to the taking of ordinary care to avoid harm by a domestic animal with dangerous propensities of which defendants knew or should have known. We hold that the dicta in this court’s opinion in Hagen v. Laursen, supra, upon which the trial court relied, is incorrect to the extent it would engraft onto negligence legal criteria applicable to strict liability. Thus, the Hagen court erred in stating that in an action for negligent harm done by defendants’ dog, plaintiff must plead and prove that the injury was the result of “the vicious character or evil propensity of the dog” which character or propensity is both “abnormal with regard to the usual actions of these animals” and known to the owner or keeper of the animal. (Hagen, supra, 121 Cal.App.2d at p. 382). Since plaintiff presented sufficient evidence of negligence to entitle her to instructions on that theory, unalloyed with legal principles applicable to strict liability, we shall reverse.
Plaintiff and Judy Hightower, both members of the Jehovah’s Witnesses Congregation, were engaged in their ministry, going house to house to [920]discuss the Bible with those who might be interested. As they walked along the driveway toward defendants’ house, Hightower noticed defendants’ dog, Bandit, sitting near the corner of the house. She said, “Look out, . . . it’s a pit bull.” Before plaintiff could react, Bandit arrived on the run, jumped on plaintiff and knocked her to the ground. Plaintiff suffered a broken hip and lacerations to her head where it struck some rocks.
Plaintiff testified that before entering onto defendants’ property, she received no indication of Bandit’s presence. There was no fence surrounding the property, nor were there any signs advising a dog was present or warning against solicitation.
At the time of these events, Bandit was leashed to a chain attached to a 100-foot guy wire which allowed him to run across the front yard of defendants’ property and gave him access to the driveway.
After Bandit knocked plaintiff to the ground, Hightower shouted for help, whereupon defendant Robert Dean emerged from his house. According to Hightower, Dean told her Bandit “had a habit of jumping on people.”
Dean denied making any such statement. He testified Bandit was well trained, well behaved and liked people. He denied Bandit had a propensity for jumping on people. There was evidence no complaint concerning Bandit had ever been received by the Shasta County Animal Control Office. Several witnesses testified that in their experience Bandit was a well-behaved, gentle animal.
Bandit was an American Staffordshire Terrier, known commonly as a pit bull, and weighed approximately 65 pounds. Plaintiff produced evidence that historically pit bulls were bred for their aggressiveness. Defendant offered evidence that pit bulls are not inherently dangerous to people. Dean did admit Bandit once barked at a stranger and would not let him come up the driveway toward the house.
Near the conclusion of the evidence counsel and the court discussed jury instructions. All agreed plaintiff was entitled to instructions on strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class. As to plaintiffs theory of negligence, plaintiff requested the jury be instructed with BAJI Nos. 3.00 and 3.10 on the general principles of negligence.1 Defendants objected, arguing there could be no finding of negligence absent evidence defendants knew of a dangerous propensity on the part of Bandit.
[921]Relying on Hagen v. Laursen, supra, 121 Cal.App.2d 379, the trial court ruled it would not give BAJI No. 3.00 or 3.10 unless those instructions were modified. In a discussion with counsel the court suggested the jury should be instructed it could find negligence only if it found Bandit had a dangerous propensity of which defendants knew or should have known. Given the choice of negligence instructions so modified or no instructions on negligence, plaintiff chose the latter alternative. The matter was submitted to the jury solely on the theory of strict liability. By special verdict, the jury found Bandit did not have “a particular vicious or dangerous propensity” and judgment was entered for defendants.
I
California has long followed the common law rule of strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class. (E.g., Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033] and authorities cited therein; Hicks v. Sullivan (1932) 122 Cal.App. 635, 638 [10 P.2d 516] and authorities cited therein.) This rule is set forth in section 509 of the Restatement Second of Torts (Restatement Second): “(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm, [f] (2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.”
“[Because] [t]he great majority of dogs are harmless ... the possession of characteristics dangerous to mankind ... is properly regarded as abnormal to them.” (Rest.2d, § 509, com. f.) “[F]rom time immemorial [dogs] have been regarded as the friends and companions of man.” (Rest.2d, § 509, com. f.) “[A] dog’s bad character or evil disposition is not presumed. The view expressed in Mason v. Keeling . . . [1699, 12 Mod. 332] that ‘the law takes notice, that a dog is not of a fierce nature, but rather the contrary’ is [922]generally adopted. A dog is presumed to be tame, docile and harmless until the contrary appears. [Citations.] Harming a human being is regarded as contrary to a dog’s nature. ‘He errs contra naturam suam [against his nature] by biting or any serious misdoing . . . .’ [Citation.]” (Olson v. Pederson (1939) 206 Minn. 415 [288 N.W. 856, 859].)
It is because dangerous propensities are abnormal to dogs as a class that the rule of strict liability comes into play. “One who keeps a [dog] that to his knowledge is vicious, or which though not vicious possesses dangerous propensities that are abnormal thereby introduces a danger not usual to the community and which, furthermore, is not necessary to the proper functioning of the animal for the purposes that it serves.” (Rest.2d, § 509, com. d.) “When an owner has reason to believe his dog is savage, ill-tempered, mischievous or dangerous to persons and property, he may be kept only at the owner’s risk, who will become liable for damages resulting from such conduct of the dog which exhibits such known traits or character.” (Hicks v. Sullivan, supra, 122 Cal.App. at p. 638.)
“Thus, one who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under [section 509] for harm done by its dangerous playfulness or over-demonstrative affection. ...[!]... [Likewise] [i]f the possessor knows that his dog has the playful habit of jumping up on visitors, he will be liable without negligence when the dog jumps on a visitor, knocks him down and breaks his hip . . . .” (Rest.2d, § 509, corns, c, i.)
The rule of strict liability is exemplified in decisions such as Hicks v. Sullivan, supra, 122 Cal.App. 635. There, the plaintiff was attacked by a dog known to its owner (defendant) to be vicious and ill-tempered. Following judgment for plaintiff, this court affirmed, noting: “Most dogs are usually considered domestic, companionable, good natured and harmless. [Citation.] They are valuable as watch dogs and for the care of stock. The law recognizes a property valuation in dogs and authorizes the ownership and possession of such animals. . . . [However] ‘[w]hen it is once established that the dog is of a vicious and mischievous nature and that the person owning or keeping it had knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal (which is) naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary.’ ‘[T]he gravamen of the action is knowledge of the owner that the beast was the possessor of vicious or mischievous propensities. Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown.’ ” (Hicks v. Sullivan, supra, 122 Cal.App. at pp. 637-638.)
[923]In Hillman v. Garcia-Ruby, supra, 44 Cal.2d 625, the court observed: “There is no dispute as to [the] rule of [strict liability]. ‘The keeper of an animal of a species dangerous by nature, or of any animal which he knows, or has reason to know, to have dangerous propensities, is liable, without wrongful intent or negligence, for damage to others resulting from such a propensity.’ [Citations.] The liability of the keeper is absolute, for ‘[t]he gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with knowledge of the vicious propensities. [Citation.] In such instances the owner is an insurer against the acts of the animal, to one who is injured without fault, and the question of the owner’s negligence is not in the case. [Citations.]’ ” (Id. at p. 626.)
In this case plaintiff adduced evidence pit bulls historically were bred for their aggressiveness and that Bandit, who weighed 60 to 70 pounds, had a tendency, known to defendants, to jump on people and in fact jumped on plaintiff, knocking her down and breaking her hip.
The jury was instructed on strict liability in terms of BAJI No. 6.66, as follows: “If you find that the plaintiff was injured by the dog owned or kept by the defendant and that before the plaintiff was injured by said animal the defendant knew or had reason to know of the particular vicious or dangerous trait or propensity in the animal which caused plaintiff’s injuries, you will find in favor of the plaintiff and against the defendant and award the plaintiff such damages as you find that the plaintiff suffered from injuries which legally resulted from such vicious or dangerous trait or propensity, [f] An owner or keeper of an animal has reason to know of the trait or propensities of the animal when the owner or keeper has notice of facts that a reasonable person would have.”
Plaintiff complains, however, that the trial court erred in refusing her special instruction on strict liability, which stated: “The (a) vicious propensities and dangerous character of a dog and (b) knowledge thereof by his owner may be inferred from evidence that the dog was kept (1) tied (2) as a watchdog and also (3) from his size and breed.”
Plaintiffs rejected instruction is taken verbatim from Frederickson v. Kepner (1947) 82 Cal.App.2d 905 [187 P.2d 800], which involved an attack on plaintiff, a customer of defendant, by defendant’s “75-pound German police dog.” (Id. at p. 907.) The dog was kept on defendant’s business' premises 24 hours a day to guard the business. Although two other dogs also kept on the premises were allowed to run free, the police dog was kept tied up at all times except occasionally in the evening when, “for the purpose of exercise” and “accompanied by someone,” the dog was untethered. (Id. at [924]pp. 907, 909.) Based on these facts, the Frederickson court reversed a judgment of nonsuit, ruling sufficient evidence was presented by which a jury could infer the police dog had a dangerous nature and defendant’s knowledge thereof. (Id. at pp. 908-909.)
Although correct statements of the law taken from opinions of reviewing courts may provide a basis for instructions, “an extract may be inappropriate if the facts underlying the opinion are different from those presented in the new case.” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 250, p. 255.)
Frederickson involved an appeal from a judgment of nonsuit, and held only that there was sufficient evidence to submit to the jury the issue whether the police dog was a dangerous animal. Frederickson does not stand for the rule the jury should be given particular instructions setting forth the specific facts from which an inference of dangerousness may be drawn. Nor should such an instruction have been given here. An instruction which singles out and emphasizes portions of the evidence is argumentative and improper. Plaintiff was no more entitled to her requested instruction than defendants would have been to an instruction that the jury could infer Bandit had no dangerous propensity from the lack of any complaint to the animal control department and the fact certain witnesses testified Bandit was gentle and well behaved. The question whether Bandit had a vicious or dangerous propensity was for the jury to decide based upon all of the evidence. Counsel were free to argue the evidence and the inferences that could be drawn from it, but no additional instructions were necessary to assist the jury in its determination of the question of dangerousness.
II
We address plaintiff’s contention it was error to refuse her preferred negligence instructions. The common law recognizes negligence as a distinct legal theory of recovery for harm caused by domestic animals that are not abnormally dangerous. Restatement Second section 518 provides: “Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if . . . (b) he is negligent in failing to prevent the harm.”2
The amount of care required of a keeper of a domestic animal that is not abnormally dangerous is commensurate with the character of the animal. [925](Rest.2d, § 518, com. f.) Keepers of such “domestic animals [which are] of a class that can be confined to the premises of their keepers or otherwise kept under constant control without seriously affecting their usefulness . . . are under a duty to exercise reasonable care to have them’ under a constant and effective control.” (Rest.2d, § 518, com. e.) Otherwise, “many [such animals] are recognizably likely to do substantial harm while out of control.” (Ibid.)
On the other hand, “[t]here are "certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the purpose for which it is proper to keep them is to be satisfied, that they have traditionally been permitted to run at large. This class includes dogs, .... Although it is not impossible to confine dogs to the premises of their keepers or to keep them under leash when taken into a public place, they have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control. . . . However, although the possessor or harborer of a dog ... is privileged to allow it to run at large and therefore is not required to exercise care to keep it under constant control, he is liable if he sees his dog . . . about to attack a human being or animal or do harm to crops or chattels and does not exercise reasonable care to prevent it from doing so.” (Rest.2d, § 518, com. j.)
“One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.” (Rest.2d, § 518, com. h.)
In determining the keeper’s liability for negligence for injuries inflicted by a domestic animal, the criterion usually adopted is one of reasonable anticipation of the occurrence, i.e., foreseeability. (Hagen v. Laursen, supra, 121 Cal.App.2d 379, 383; see 4 Am.Jur.2d, Animals, § 89, p. 337.)
Endresen v. Allen (Wyo. 1978) 574 P.2d 1219 involved a dog with a proclivity to escape from the yard and chase motor vehicles. The dog escaped and chased plaintiff, who was riding a motorcycle, causing plaintiff to crash and sustain injury. Plaintiff sued the dog’s owner on theories of negligence and violation of a local ordinance requiring dogs to be kept off the public streets. Since plaintiff’s theories did not include strict liability, dangerous propensity of the dog abnormal to its class was not an issue. [926]Concerning negligence, the reviewing court commented: “We think that there was sufficient evidence of negligence to justify submission to the finder of the facts the question whether defendants should reasonably have anticipated that injury would result from their failure properly to secure the dog and whether they negligently failed properly to secure the dog.” (Endresen v. Allen, supra, 574 P.2d at p. 1222.)3
In Arnold v. Laird (1980) 94 Wn.2d 867 [621 P.2d 138, 140-141] the court, with specific reference to Restatement Second section 518, held: “[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.” (See also Bocker v. Miller (1963) 213 Cal.App.2d 345, 348 [28 Cal.Rptr. 818]; Williams v. Johnson, supra, 781 P.2d at pp. 926-929 and authorities cited therein (dis. opn. of Urbigkit, J.).)
In Ryman v. Alt (Minn. 1978) 266 N.W.2d 504, plaintiff, a guest in defendant’s home, was bitten by defendant’s Saint Bernard. The dog was chained near the driveway. Defendant invited plaintiff to pet the animal. As plaintiff approached, the dog leaped at her and bit her in the face. Defendant was then heard to say, “ T should have gotten rid of this dog because it bit me once before.’ ” Although the complaint alleged both strict liability and negligence, the court instructed the jury only on strict liability for harm by animals with known vicious or dangerous propensities.4 Defendant prevailed and plaintiff appealed, asserting instructional error. (Ryman v. Alt. supra, 266 N.W.2d at p. 506.)
The Ryman court held plaintiff was entitled to go to the jury also on negligence: “On several occasions, we have recognized a cause of action for injuries inflicted by a domestic animal based entirely upon the negligence of the animal’s owner or-keeper. [Citations.] [j[] A plaintiff who believes his proof may be adequate to establish negligence by the animal’s keeper may also proceed under the common-law scienter theory. The scienter action is [927]not based on negligence; once the animal’s dangerousness and the keeper’s scienter are proved, liability follows unless the person injured voluntarily and knowingly assumed the risk of injury [citations]. The gravamen of the tort for which recovery is allowed is simply the keeping of an animal known to be vicious. [Citation.] Scienter actions for injuries by domestic animals seem more numerous than negligence actions, perhaps because many such injuries occur while the animal’s keeper is not present and proof of negligence may be difficult, [f] [Plaintiff] here appropriately pleaded negligence. If [her] proof is adequate to show [defendant] was negligent, [she] may recover without showing viciousness of the dog and scienter. Conversely, recovery may be had absent proof of negligence by showing that the dog had a vicious propensity known to [defendant].” (Italics in original. 266 N.W.2d at p. 508.)
In Westberry v. Blackwell (1978) 282 Ore. 129 [577 P.2d 75] defendant’s dog inflicted a superficial bite on plaintiff’s hand as plaintiff made her way into defendant’s house. As plaintiff was leaving, and after being assured by defendant the dog was docile, the dog bit plaintiff even more severely on the other hand. Plaintiff sued on theories of strict liability and negligence but nonsuit was granted as to both theories.
On appeal, the court found there was sufficient evidence to go to the jury on the theory of strict liability for known dangerous propensity. Thereafter, the court, citing Restatement Second section 518, also found sufficient evidence to go to the jury on negligence:
“Plaintiff’s second cause of action alleged defendants were negligent in failing to confine the dog. Failure to confine or control such a domestic animal can give rise to a cause of action in negligence.
“[H]ere, the evidence indicates [defendant] could have controlled or confined the dog when she knew plaintiff was leaving the premises. She knew the dog had bitten plaintiff on her way into the house. Whether a reasonable person in the exercise of ordinary care would have restrained the dog is properly a question for the jury.
“The defendants’ motion for a judgment of involuntary nonsuit should not have been granted. Viewing the evidence in the light most favorable to the plaintiff, a legitimate question of fact for the jury was presented, both as to the charge in strict liability and the charge in negligence.” (Westberry, supra, 577 P.2d at pp. 76-77, fn. omitted.)
In DeRobertis v. Randazzo (1983) 94 N.J. 144 [462 A.2d 1260] the jury returned a verdict in favor of plaintiff, a five-year-old child bitten by [928]defendant’s dog. Although the judgment was reversed on other grounds, the court explained both strict liability and negligence were viable theories of recovery: “If a plaintiff proves scienter, a dog-owner is absolutely liable for injuries caused by the dangerous characteristic of the dog. . . (DeRobertis v. Randazzo, supra, 462 A.2d at p. 1267.) Citing Restatement Second section 518, the court commented: “If, on the other hand, the plaintiff is unable to prove that the owner knew or should have known of the dog’s dangerous characteristics, then the owner is liable only if the plaintiff is able to prove that the owner acted negligently in keeping the dog.” (Id. at pp. 1266-1267.)
In Hagen v. Laursen, supra, 121 Cal.App.2d 379, plaintiff was injured when defendants’ two dogs ran against plaintiff, a neighbor who was visiting on defendants’ property, and caused her to fall and injure herself. Plaintiff sued on theories of general negligence and negligence per se arising from defendants’ alleged violation of a dog control ordinance. Plaintiff secured a judgment and defendants appealed. Defendants’ sole contention on appeal was that the evidence was insufficient as a matter of law to support the judgment. On the negligence per se theory this court held plaintiff failed to prove she was within the class for whose protection the ordinance was enacted. (Id. at p. 386).
This court also held plaintiff failed to prove general negligence predicated on any act or omission of defendants. Defendants’ two dogs were Irish setters, approximately five years old and weighing respectively thirty-five and forty-five pounds, more or less. “On the occasion when plaintiff was injured the dogs were frolicking, occasionally going into the road and back to their home grounds. They romped and played with each other; would jump at each other, wrestle, run, roll over, pretend to bite each other, and generally indulge in the antics usual with dogs at play. Their actions were described as the average play of a dog. No one had seen them run into anyone while playing, before [plaintiff] received her injuries. They were not shown to have been more boisterous than dogs usually are. There was no evidence that these dogs were vicious.” (121 Cal.App.2d at p. 380.)
“[Plaintiff] was well acquainted with the dogs and had often observed them at play. At the time of the accident [plaintiff] had seen the dogs playing and while this was going on had gone across the road and onto the premises of [defendants] where she stood conversing with a group of people, which included [defendant] and some relatives of [plaintiff]. The dogs were frolicking about, the women were talking; [plaintiff] stood with her back toward the area in which the dogs were for the moment at play and did not, therefore, see them approaching her. Others, however, including [defendant] [929]saw the dogs coming, but no one said or did anything. One or perhaps both of the dogs while so playing and frolicking ran against the back of [plaintiffs] legs at about the knees, causing her to fall sharply to the ground and to suffer a broken hip and various less serious bruises and lacerations. There was nothing in the nature of an attack by either animal.” (121 Cal.App.2d at p. 381.)
After an excursive discussion in which legal principles governing strict liability and negligence were conflated (121 Cal.App.2d at pp. 382-383), this court analyzed defendants’ contention that the evidence, as a matter of law, was insufficient to prove a charge of general negligence: “Giving full play to the rule that negligence is usually a question of fact, still negligence cannot be here predicated upon any act or omission of [defendant]. The ground of liability here is reasonable anticipation of the occurrence and reasonable opportunity to act. Dogs at play rarely run against stationary objects whether tree, post or person. They generally look where they are going and this is self-preservation. We are unable to see where in the situation confronting her [defendant] could reasonably be held to anticipate that the playing dogs would blindly run into a group of people and knock one of them down. . . . Here was misadventure pure and simple without liability . . . .” (Id. at p. 383.)5
As the Restatement Second section 518 and the cases indicate, negligence may be predicated on the characteristics of the animal which, although not abnormal to its class, create a foreseeable risk of harm. As to those characteristics, the owner has a duty to anticipate the harm and to exercise ordinary care to prevent the harm. (See Hagen v. Laursen, supra, 121 Cal.App.2d at pp. 382-383.) “The common law [] provided that the owner of an animal which was not vicious . . . but which was prone to some other potentially harmful behavior, could be held liable under a theory of negligence for any injury proximately caused by such behavior. In such cases the owner was only liable if, having knowledge of the particular propensities which created a foreseeable risk of harm, he failed to exercise reasonable care in control of the animal.” (Williams v. Johnson, supra, 781 P.2d at p. 923, citing Rest.2d, § 518; Kathren v. Olenik (1980) 46 Ore.App. 713 [613 P.2d 69, 73], citing Rest.2d, § 518.)
Defendants rely on Hillman v. Garcia-Ruby, supra, 44 Cal.2d 625, for the proposition that there can be no liability based on negligence for injury caused by a domestic animal unless the animal has dangerous propensities of which the owner knows or should have known. In Hillman, the [930]plaintiff was walking along a public sidewalk when defendants’ dog jumped on her, knocked her to the ground and injured her. The trial court refused plaintiffs requested instruction the keeper of a dog with known dangerous propensities is under an absolute duty to restrain the animal. The court instructed on negligence but imposed a duty of care only where “a keeper of a dog knows it to have dangerous propensities.” (Hillman v. Garcia-Ruby, supra, 44 Cal.2d at p. 627, fn. 1.) The jury returned a verdict in favor of defendants, and plaintiff appealed. The only contention on appeal was that the trial court erred in refusing to instruct on strict liability. (Id. at p. 627 & fn. 3.)
The Hillman court held the trial court erred in refusing strict liability instructions but that the error was harmless. The court noted instructions on strict liability would have required the jury find defendants knew of the dog’s dangerous propensities. The negligence instructions, as given, imposed that same requirement. Thus, the only difference between strict liablity and the negligence instructions presented to the jury is that the former theory imposes an absolute duty to restrain the dog while the duty under the latter theory requires only the exercise of ordinary care. As the evidence was uncontradicted defendants did nothing whatever to restrain the dog, i.e., they failed to exercise even ordinary care, the verdict in favor of defendants necessarily indicated the jury found the dog had no known dangerous propensities. Thus, a result more favorable to plaintiff would not have have been reached if strict liability instructions had been given. (44 Cal.2d at p. 628.)
Hillman does not support defendants’ position because on appeal the plaintiff in Hillman did not challenge the correctness of the negligence instructions which, as given, conditioned the existence of a duty of care on defendants’ knowledge of a dangerous tendency of their dog. The only issue plaintiff tendered on appeal was the trial court’s refusal to instruct on strict liability. Thus the Hillman court had no occasion to speak to the validity of the instructions on negligence and did not do so.
In this case, plaintiff offered BAJI instruction Nos. 3.00 and 3.10 in support of her theory defendants were negligent in the care and control of Bandit. (See fn. 1, ante.) The offer was refused, and the case went to the jury only on strict liability instructions. By special verdict, the jury found Bandit did not have “a particular vicious or dangerous propensity!)]” Since the evidence was uncontradicted that Bandit jumped on plaintiff and knocked her down, the special verdict implies the jury found either such conduct was not dangerous or, even if dangerous, was atypical of Bandit. If the latter, the jury presumably found plaintiff did not carry her burden of proving that [931]Bandit had a propensity for such conduct, that is, “a natural inclination” or an “innate or inherent tendency” (Webster’s Third New Internat. Dict. (1971) p. 1817) to act as he did.
Although the jury found Bandit had no vicious or dangerous propensity, that finding did not resolve the question of negligence tendered by plaintiff’s complaint. Plaintiff alleged defendants “negligently . . . failed to . . . control” Bandit. Thus, there were issues whether Bandit posed a risk of harm to others; whether that risk was reasonably foreseeable; and if so, whether defendants failed to exercise ordinary care to avert that risk by controlling Bandit.
Unlike Hagen v. Laursen, supra, where the dogs’ conduct prompted the court to observe that “dogs at play rarely run into stationary objects whether tree, post or person” (121 Cal.App.2d at p. 383), the facts here prompt us to observe that it is not unknown for dogs to jump on people. (E.g., see Rest.2d, § 509, com. i.) Thus, it may reasonably be anticipated that a dog which has jumped on people before will do it again, whereas it is not reasonable to suppose that a dog that has, for whatever reason, run into an immovable object will not have been discouraged from repeating that conduct. Thus, we cannot say as a matter of law that no reasonable jury could find defendants could not have anticipated either the event or the harm that resulted. Plaintiff presented evidence that defendant Dean knew Bandit “had a habit of jumping on people,” from which an inference could be drawn that such conduct was reasonably foreseeable. And, as we have indicated, the special verdict does not necessarily exclude the possibility the jury credited that evidence.
Moreover, even though the jury found jumping on people not to be a dangerous propensity, we cannot say that a jury which exonerated Bandit of a vicious or dangerous propensity, if instructed on negligence, would necessarily have found that Bandit’s conduct was not potentially harmful even though the jury did not regard it as vicious or dangerous. Instead, the jury may have regarded Bandit’s conduct as playful or perhaps as manifesting an unrestrained friendliness and thus have been disinclined to characterize it as vicious or dangerous.
The evidence also presented a question for the jury on the issue of breach, i.e., whether defendants, knowing of Bandit’s potential to do harm, exercised ordinary care to avert that harm by adequately controlling him. Although Bandit was on a leash, the radius of the tether gave him access to defendants’ driveway on which visitors to defendants’ house approached.
[932]We conclude the trial court erred prejudicially in refusing to instruct the jury on negligence unalloyed with strict liability.6
We acknowledge that in refusing standard negligence instructions, the trial court was led into error by this court’s decision in Hagen v. Laursen, supra. We do not disagree with the holding of Hagen v. Laursen, nor do we fault the Hagen court’s analysis to the extent it applied the law of negligence to the facts of the case. (121 Cal.App.2d at pp. 383-386.) However, the Hagen court also discussed strict liability (id. at pp. 382-383) and cited cases in which strict liability was in issue whereas in the case before it there was no issue of strict liability presented. Although the discussion was unnecessary to the court’s holding and therefore dicta, its presence in a case involving only negligence very strongly implies that the principles of strict liability there discussed are applicable in an action for negligence. To the extent Hagen so implies, it is overruled.7
[933]III
For the benefit of court and counsel on remand, we address plaintiffs contention the trial court erred in allowing the witness Hightower to be cross-examined with regard to whether her status as a fellow Jehovah’s Witness or some tenet of her faith biased her in favor of plaintiff. Plaintiff cites as authority Evidence Code section 789 which states: “Evidence of. . . religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.” Plaintiffs claim fails for two reasons.
First, plaintiff did not argue Evidence Code section 789 to the trial court as a basis for her objection to defendants’ cross-examination of Hightower. Prior to trial plaintiff had moved in limine to restrict any inquiry into either her or Hightower’s religious beliefs. Plaintiff did not then raise Evidence Code section 789 as the basis for her motion. Moreover, the trial court deferred decision on the in limine motion to the appropriate point at trial. When the issue arose during Hightower’s testimony, the court ruled a limited inquiry on the issue of bias would be permitted. Plaintiffs sole objection at that point was that a particular question asked by the defense was “vague and ambiguous.” Because there was no objection based on Evidence Code section 789, that issue has been waived on appeal. (Evid. Code, § 353.)
Equally important, Evidence Code section 789 does not preclude the inquiry made by the defense. This section simply codifies existing law expressed over a century ago in People v. Copsey (1887) 71 Cal. 548 [12 P. 721], that evidence relating to whether a witness possesses or lacks religious beliefs is inadmissible on the issue of his credibility as a witness. (Id. at p. 550.) Copsey, in turn, was based on the provisions of article I, section 4 of the California Constitution, which states “[a] person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.” While one cannot be precluded from testifying because he lacks religious belief, relevant inquiry whether a witness’s membership in a particular religious sect or a tenet of his faith might tend to bias him is not prohibited.
The judgment is reversed. Plaintiff is to recover costs.
Nicholson, J., concurred.
BAJI No. 3.00 states: “A plaintiff who was injured as a [proximate] result of some negligent conduct on the part of a defendant is entitled to recover compensation for such [921]injury from that defendant, [f] Thus, the plaintiff is entitled to a verdict in this case if you find: [1]] 1. That a defendant was negligent, and [f] 2. That such negligence was a [proximate] cause of injury to the plaintiff.”
BAJI No. 3.10 states: “Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the circumstances similar to those shown by the evidence. ['][] It is the failure to use ordinary or reasonable care, [f] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. [J] [You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.]”
The elided subdivision (a) imposes liability on the keeper if he “intentionally causes the animal to do the harm.”
Although the Endresen court made no mention of Restatement Second section 518, in a later case the court suggested Endresen's discussion of negligence was based on that section. (Williams v. Johnson (Wyo. 1989) 781 P.2d 922, 923.)
In these circumstances California by statute imposes strict liability irrespective of scienter. Civil Code section 3342 provides in relevant part that “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”
The court was “somewhat persuaded to this view” (121 Cal.App.2d at p. 383), also because if there was danger, plaintiff was as aware of it as defendants and assumed the risk. (Id. pp 383-384.)
The dissent mistakenly ascribes to the majority the position, obviously unsupportable in law, that it is “foreseeable that dogs, regardless of their prior characteristics, will react to strangers coming on their owners’ property in a dangerous and harmful way.” (Italics added, dis. opn., post, at p. 943.) The dissenting justice then mistakenly taxes the majority with the “misapprehension that the owners of a peaceful dog are liable in negligence if the animal causes some injury to a person and the owners could have prevented the harm had they confined or controlled the dog.” (Italics added, dis. opn., post, at p. 943.)
We acknowledge that the dog is man’s best friend and have no desire to spurn or betray that friendship nor design to hold his master liable for conduct of the dog in acting as dogs characteristically and commonly act, i.e., peacefully and harmlessly. Moreover, we acknowledge that the owner is not liable in negligence for any harmful conduct of his dog that was not reasonably foreseeable. Here, however, there was evidence from which a jury instructed on negligence could have found Bandit’s conduct was harmful and reasonably foreseeable and that defendants did not exercise ordinary care in so controlling Bandit as to avert his known potential to cause harm.
The Hagen court relied on the Restatement of Torts whereas we rely on its successor, the Restatement Second. (See Canfield v. Security-First National Bank (1939) 13 Cal.2d 1, 30-31 [87 P.2d 830]; Scholey v. Steele (1943) 59 Cal.App.2d 402, 405 [138 P.2d 733].) We are constrained to note that former section 518 of the Restatement of Torts governing negligence liability for harm done by domestic animals which are not abnormally dangerous underwent significant change in the Restatement Second. We quote the relevant parts of section 518 of the Restatement Second at page 924, ante. Former section 518 of The Restatement, in effect when Hagen v. Laursen, supra, was decided, reads as follows: “(1) Except as stated in Subsection (2) and §§ 504-5, one who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if, [][] (a) he fails to exercise reasonable care to confine or otherwise control it, and [][] (b) the harm is of a sort which it is normal for animals of its class to do. [j[] (2) A possessor or harborer of a domestic animal which, because it is of a class unlikely to do harm and difficult to confine, he is privileged to allow to run at large, and which he does not have reason to know to be abnormally dangerous, is not liable for any barm done by it while at large.”
Note that under subsection (2) of former section 518 a keeper of a dog which is not abnormally dangerous “is not liable for any harm done by it while at large.” This exception to [933]liablity does not appear in current section 518. No doubt, this change reflects the evolution of our society from largely rural to predominantly urban with consequent diminished tolerance for unconfined domestic animals.