Saralegui Blanco v. Hernandez, et al. – Re-Affirming Limited Landlord Liability for Dog Bites
Wednesday, September 14, 2022
by: Joseph M. Winsby & Ofelia A. Granados, Lorber Greenfield & Polito, LLP

Section: Summer 2022

Joseph M. Winsby is an AV Preeminent rated trial attorney and partner of both the Oregon and Washington offices at Lorber, Greenfield & Polito. He focuses his practice on construction defect litigation, personal injury defense, commercial litigation, and other complex civil litigation claims. He has represented insurers as well as high profile private clients in both federal and state courts.

Ofelia A. Granados focuses her practice on personal injury defense, including catastrophic injury and wrongful death, construction defect litigation, commercial litigation, and other complex civil litigation claims. She has represented insurers as well as high profile private clients in both federal and state courts and has successfully tried several cases to verdict. She is also a member of WDTL.
In many other jurisdictions dog bite plaintiffs have been able to access the deeper pockets of landlords, in addition to their renters, using premise liability theories. The Supreme Court’s decision in Saralegui Blanco v. Gonzalez Sandoval re-affirmed Washington’s general rule that liability flows from ownership and direct control of an animal and that landlords are not liable for conditions created by the tenant after possession is transferred. 197 Wn.2d 553, 485 P.3d 326 (2021).
Washington has two theories of liability for dog bite cases; strict liability and common law liability.  Both of these theories rest upon ownership or control of the animal.  Plaintiffs have attempted to assert alternate theories of negligence in dog bite cases, including premise liability.  In 2021, the Supreme Court thoroughly analyzed a premise liability theory where the property is a single-family residential home, and held the following:
  1. Generally, landlords are not liable in premises liability actions for conditions created by their tenant;
  2. A landlord is not generally the possessor of leased land;
  3. A dog cannot be considered a dangerous condition of the land; and
  4. A dog’s breed is not indicative of its dangerousness.
Saralegui Blanco v. Gonzalez Sandoval, et al., 197 Wn.2d 553 (2021).
So, what does that mean for landlords?  And how does this affect dog bite and premise liability theories moving forward?  In short, it means that landlords can continue to rent single family homes to tenants with pets with little fear of liability if that landlord does not own or control the dog.  A more in depth look at the Court’s holding also shows that a dog’s breed has no bearing on liability.  This effectively eliminates the argument that a dog is “dangerous” solely because it is a German Shepherd or Pit Bull and forces a plaintiff to bring tangible evidence related to the dog’s history of aggression.  This holding also eliminates a plaintiff’s ability to prove the “dangerous condition” element of premise liability in any dog bite case, resulting in the likely failure of such theory.  Let’s take a deeper look into the case and the Court’s reasoning for such holdings.
Landlords Hernandez (“Landlords”) rented their single-family residential home (“Home”) to tenants Sandoval and Gonzalez (“Tenants”).  While a lease originally governed the tenancy, the lease expired, and Tenants continued to rent on a month-to-month basis.  Permission from Landlords was needed to own a pet or make any additions to the home or property.  In 2016, Tenants purchased a pit bull puppy and installed a wire fence to enclose the yard for the dog.  Landlords were notified of the dog and its breed, and Landlords gave Tenants permission to construct the fence.  Landlords saw the dog once in 2017 and did not receive any complaints about the dog prior to the incident.  Tenants also stated that they had no prior issues with the dog and did not observe any aggressive behavior towards humans or dogs.
In May 2018, Plaintiff Saralegui Blanco went to the home to conduct a bible study with Tenant’s mother who was also living at the Home.  Plaintiff had been to the Home at least five times prior and on each occasion had seen the dog jumping and barking.  On the date of the incident, Plaintiff was standing in the driveway when she claimed that the dog jumped the fence and began attacking her.  Tenants claimed the dog escaped through the fence and a loose piece of plywood was later found on the fence enclosure.
Theories Alleged
Plaintiff brought claims against Landlords under theories of strict liability, premise liability, principal agent relationship, and implied warranty of habitability.  Plaintiff specifically alleged that the dog was a dangerous condition of the land and that as owners of the Home, Landlords had a duty to Plaintiff as an invitee.  The Supreme Court granted review of the premise liability issue only.
Washington has long held that liability flows from ownership or direct control of the animal, that landlords are not responsible for conditions of the land created by the tenants, and landlords do not owe a greater duty to a tenant’s guest than to the tenant.  The Court conceded laws in other jurisdictions where landlords can be liable for injuries caused by a tenant’s animal where the landlord knew of the danger or had control over the animal’s presence.  This approach was initially discussed in Frobig v. Gordon and rejected. The Court examined these laws again and once again concluded that no duty exists where the landlord cedes possession and control of the land to a tenant.
One element of premise liability is that a plaintiff must show that a defendant possessed the land where the harm occurred.  Possession and control of the property is transferred to the tenant in a residential landlord-tenant relationship. Clemmons v. Fidler, 58 Wn. App. 32, 38, 791 P.2d 257 (1990).  Conditions in the lease that require permission to make changes to the property are not sufficient to conclude that the landlord maintains control over the property.  This was expressly rejected such arguments. Frobig v. Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994).  Thus, unless a landlord maintains some actual control over the leased premises, a landlord cannot be a “possessor of land” pursuant to the Second Restatement.  The Court distinguished its holding from circumstances where there is a “common area under the control of the landlords” as in a multi-family building.  Saralegui, 197 Wn.2d at 562. The second main element is the plaintiff must prove that there was a dangerous condition of the land.  The Court acknowledged that generally a condition of the land is a physical feature such as a deck, natural body of water, or accumulations of snow.  The Court further declined to accept the argument that a dog can be a dangerous condition under the Restatement (Second).
The Court ultimately determined that Landlords did not have possession or control of the Home and did not owe Ms. Saralegui a duty as an invitee.  Furthermore, the dog was not a dangerous condition of the land and the fence built by tenants was done after Landlords transferred possession and control to Tenants.  The Court also expressly stated that the breed of the dog does not in itself indicate dangerousness.
As previously noted, this holding applies to single family residential homes only.  Courts have held that liability may apply where the landlord maintains control over the property, such as a common area.  One could argue that even if the landlord maintains control, a dog is not considered a dangerous condition and therefore no liability attaches.  Further litigation and appellate review will be needed to clearly outline a premise liability theory for multi-family homes, apartments, and the like, in cases where a dog bit occurs on land possessed and control by the landlord.