It has often been said that a dog is a man’s best friend. Dogs are an ever-popular pet, but people can choose from a wide variety of pets today including exotic birds, large snakes, and even scary spiders. Unfortunately, pet lovers looking to lease a home or apartment need to choose a location carefully because not all landlords allow pets. Some landlords may ban pets because the pets may make noise that disturbs other tenants and other landlords fear that the pets may damage the leased premises. For those landlords that brave the threats of property damage and noise complaints and allow pets, can such landlords be held liable when a tenant’s pet attacks someone? This article will address a landlord’s potential liability for an attack caused by a tenant’s pet in Illinois.
A landlord has a duty to maintain portions of the premises that the landlord controls in a reasonably safe condition, but "a landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant’s control." [1] Yet, a landlord may still be liable to a third party for an injury that occurs on a portion of the premises the landlord does not control if one of the following exceptions applies:
(1) a latent defect exists at the time of the leasing that the landlord should know about; (2) the landlord fraudulently conceals a dangerous condition; (3) the defect causing the harm amounts to a nuisance; (4) the landlord makes a promise at the time of the leasing to repair a condition; (5) the landlord violates a statutory requirement of which a tenant is in the class designated to be protected by such requirement; and (6) the landlord voluntarily undertakes to render a service. [2]
The Restatement (Second) of Torts also sheds light on a landlord’s liability. "A lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." [3] The phrase "lessor of land" means "one who has leased land for a definite or indefinite period, no matter how great or small, by a written or parol lease, irrespective of whether a statute of fraud requires the lease to be in writing." [4]
In Klitzka v. Hellios, the mother of a two and one half year old child brought suit against a landlord for injuries sustained when a tenant’s dog attacked the child. [5] The tenant did not have insurance to cover injuries to the child. [6] At trial, the defendants argued "that they were landlords who had no control over the premises and therefore owed [the child] no duty," and the trial court granted summary judgment for the defendant. [7] On appeal, the appellate court considered the following issue of first impression in Illinois: "under what circumstances does a landlord owe a duty of care to his tenant’s invitees [8] to prevent injury from an attack by an animal kept by the tenant on the leased premises?" [9] The appellate court affirmed the judgment of the trial court and held that "a landlord owes no duty to a tenant’s invitee to prevent injuries proximately caused by an animal kept by the tenant on the leased premises if the landlord does not retain control over the area where the injury occurred." [10]
It should also be noted that the court in Klitzka disagreed with the rule articulated in the California case of Uccello v. Laudenslayer, which held that a landlord was vicariously liable when the landlord knew of the dangerous propensity of a tenant’s animal. [11] The Klitzka court stated that it disagreed with the rule because it would force landlords to terminate tenancies, and the tenants would simply move to a new location with their still dangerous pets. [12] Ultimately, the Klitzka court explained that it would still have found that the defendant landlord owed the victim no duty of care even if it accepted the rule articulated in Uccello because the pet involved in Klitzka was not known to be dangerous. [13]
The holding in Klitzka favors the landlord and is consistent with the notion that a landlord is not liable for injury caused by a defective condition on the premises leased to the tenant and under the tenant’s control. The Klitzka court’s reasoning for not following Uccello also suggests that landlords might receive favorable treatment from Illinois courts in vicarious liability cases involving pet attacks.
Sources
[1] Rowe v. State Bank of Lombard, 531 N.E.2d 1358, 1366 (1988); Vesey v. Chi. Housing Authority, 583 N.E.2d 538, 542 (1991).
[2] Klitzka v. Hellios, 810 N.E.2d 252, 256 (2d Dist. 2004) (citations omitted).
[3] Restatement (Second) of Torts § 355 (1965).
[4] Restatement (Second) of Torts § 355 cmt. a (1965).
[5] Klitzka, 810 N.E.2d at 254.
[6] Id.
[7] Id.
[8] "The duty owed to a licensee differed from that owed to an
invitee under common law; however, since the enactment of the Premises Liability Act, 740 Ill. Comp. Stat. 130/1
et seq. (West 1994), that
distinction has been eliminated."
Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1267 (1996).
[9] Klitzka, 810 N.E.2d at 254.
[10] Id. at 259.
[11] Id. at 258; see also Uccello v. Laudenslayer, 118 Cal. Rptr. 741, 743 (Cal. Ct. App. 1975) (holding that "a duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises").
[12] Klitzka, 810 N.E.2d at 258.
[13] Id.
Subscribe