Drake v. Dean

*934SPARKS, J., Dissenting.

Today, the majority holds that the owners of a dog not previously vicious or dangerous are liable in negligence for failing to control the animal because it is foreseeable that such a dog will jump up on people and knock them down. This greatly, and I think mistakenly, expands the liability of dog owners in California.

As the majority sees it, “[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.” (Maj. opn., ante, at p. 931.) To the contrary, that finding did resolve the question of negligence because, as we shall see, absent such a propensity the owners had no duty to control or confine their dog. By drawing an untenable distinction between dogs which are dangerous on the one hand and those which pose a foreseeable risk of harm on the other, the majority has transmogrified the question of legal duty into a factual issue for the jury. This unwarranted distinction lies at the heart of the majority’s misperception of the element of duty. It is our task, and not the jury’s, to determine if the defendants had a duty to confine or constantly control their dog. Under the law, any propensity of a dog which might foreseeably cause harm to people, whether that tendency arises from an unrestrained friendliness at one end of the spectrum or from a vicious proclivity at the other, imposes upon the owners a duty to use reasonble care, provided only that the owners knew or should have known of that propensity. This duty arises because, in the eyes of the law, such a dog is deemed dangerous.1 But if the dog is neither vicious nor dangerous, then the law imposes no duty on the owners to control or confine their dog. Here, the jury expressly found that the dog was neither vicious nor dangerous and hence inferentially found that the dog was peaceful and docile. Consequently, we should say (as numerous courts have said before us) that as a matter of law it is not foreseeable that a docile dog will cause harm to people in the absence of some knowledge of a vicious, dangerous or abnormal characteristic of the dog or in the absence of some negligent mishandling of the dog by its owners. For this reason, together with other policy considerations, the law imposes no duty upon the owners of a docile dog to confine or constantly control their pet.

*935Although I agree with the majority that a form of negligence was an alternate theory of recovery in this case, the error in refusing to instruct on that theory was waived by plaintiff and in any event was rendered harmless by the jury’s special verdict.

It has been noted that “[i]n general the common law distinguishes between wild and domesticated animals for purpose of imposing liability on their owners. Under the common law an owner or keeper of a wild animal is absolutely liable for injuries inflicted by such animal, regardless of the absence of any negligence on his part or the contributory negligence of the person injured, while an owner or keeper of a domesticated animal which is not naturally dangerous to mankind, such as a dog or cat, is not subject to liability for harm done by the animal if he does not know or have reason to know that the animal is abnormally dangerous. However, when the owner or keeper of a dog or cat knows or has reason to know that the animal has a dangerous propensity abnormal to its class, the animal passes into the wild animal category, and its owner becomes strictly liable for injuries inflicted by the animal which result from the particular dangerous propensity known to him, even though the owner exercised the utmost care to prevent the animal from doing the harm.” (Annot., Liability of Owner or Operator of Business Premises for Injury to Patron by Dog or Cat (1989) 67 A.L.R.4th 976, 985, citations and fns. omitted.)

For the most part, California2 and the Restatement Second of Torts follow this common law imposition of liability. As the majority recounts, in California an owner of a dog is liable without negligence when the dog causes injury and the owner knew or should have known of the vicious or dangerous propensity which caused the injury. (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033].) In the words of the Restatement Second of Torts, “[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.” (Rest.2d Torts, § 509, subd. (1).)

A dangerous propensity need not be a vicious one. “The rule is also applicable if the animal is not vicious but has a dangerous tendency that is unusual and not necessary for the purposes for which such animals are usually kept. Thus, one who keeps a large dog that he knows to be accustomed to fawn violently upon children and adults is liable under the rule *936stated in this Section [i.e., strictly liable] for harm done by its dangerous playfulness or over-demonstrative affection. . . (Rest.2d Torts, § 509, com. c.) Consequently, “[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 Torts, § 509, com. i.) Once again, the law of California is in accord with the Restatement. The propensity in question is not limited to “a propensity to attack human beings. Any propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangerous or vicious propensity wilhin the meaning of the law.” (Talizin v. Oak Creek Riding Club, supra, 176 Cal.App.2d at p. 435.)

On the other hand, if the owner of a domestic animal (such as a dog) does not know, or have reason to know, the animal is vicious or abnormally dangerous, he is liable only if he was negligent. Under the Restatement, in such a case the owner “is subject to liability for harm done by the animal if, but only if, . . . he is negligent in failing to prevent the harm.” (Rest.2d Torts, § 518, subd. (b).) The amount of care required “is commensurate with the character of the animal.” (Rest.2d Torts, § 518, com. f.) “In determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics. . . .” (Rest.2d Torts, § 518, com. g.) The keeper “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. Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway.” (Rest.2d Torts, § 518, com. h.) Under the Restatement, certain classes of domestic animals “can be confined to the premises of their keepers or otherwise kept under constant control without seriously affecting their usefulness and which are not abnormally dangerous. Although the utility of these animals is sufficient to justify their being kept without risk of the strict liability stated in § 590, many of them are recognizably likely to do substantial harm while out of control and, therefore, their keepers are under a duty to exercise reasonable care to have them under a constant and effective control. . . .” (Rest.2d Torts, § 518, com. e.) Dogs, however, are not within this class of domestic animals.

Under the Restatement’s rule, dogs do not have to be confined or constantly kept under control. “There are certain domestic animals so unlikely to do harm if left to themselves and so incapable of constant control if the *937purpose 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.” (Rest.2d Torts, § 518, com. j.)

It follows from this that the owners of a dog which is not vicious or abnormally dangerous have no duty to confine their pet or to keep it under constant control. Absent such a duty, there can be no liability for the failure to control or maintain the dog. (Nava v. McMillan (1981) 123 Cal.App.3d 262, 265 [176 Cal.Rptr. 473].) “The threshold element of a cause of action for negligence is the existence of a duty to use care toward an interest of another that enjoys legal protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [11 Cal.Rptr.2d 51, 834 P.2d 745].) As the high court made clear in Ballard v. Uribe (1986) 41 Cal.3d 564 [224 Cal.Rptr. 664, 715 P.2d 624], “[t]he question of ‘duty’ is decided by the court, not the jury. As this court has explained, ‘duty’ is not an immutable fact of nature, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. In California, the general rule is that all persons have a duty to use ordinary care to prevent others being injured as the result of their conduct. . . . (Rowland v. Christian (1968) 69 Cal.2d 112 ... ; Civ. Code, § 1714.) Rowland enumerates a number of considerations, however, that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. The foreseeability of a particular kind of harm plays a very significant role in this calculus, but a court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently *938likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”3 (Id. at pp. 572-573, fn. 6, some citations and internal quotation marks omitted, italics in original.) In sum, “[w]hile in many contexts foreseeability is a question of fact for the jury, in defining the boundaries of duty, foreseeability is a question of law for the court.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516 [6 Cal.Rptr.2d 810].)

The California authorities and the Restatement treat dogs as a “domestic animal,” that is “an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.” (Rest.2d Torts, § 506, subd. (2).) Dogs “have from time immemorial been regarded as the friends and companions of man. The great majority of dogs are harmless, and the possession of characteristics dangerous to mankind ... is properly regarded as abnormal to them.” (Rest.2d Torts, § 509, com. f.) It is therefore not foreseeable under the law that such a “harmless” animal “devoted to the service of mankind” will suddenly cause harm to people in the absence of actual or imputed knowledge of some dangerous or vicious characteristic of the dog. As we noted in Hagen v. Laursen (1953) 121 Cal.App.2d 379 [263 P.2d 489], “the law takes notice that a dog is not of a fierce nature, but rather the contrary is generally adopted. A dog is presumed to be tame, docile and harmless until the contrary appears. . . . Harming a human being is regarded as contrary to a dog’s nature.” (Id. at p. 382, quoting Olson v. Pederson (1939) 206 Minn. 415 [288 N.W. 856, 859], citations and internal quotation marks omitted.) In short, dogs are presumed by the law to be harmless and nondangerous and thus it is not foreseeable that these benign pets will cause injury to people in the absence of evidence to the contrary.

We made this precise point in Hagen, the case so disparaged by the majority. There, we held as a matter of law that it was not foreseeable that defendant’s dogs would heedlessly run into a group of people and knock one of them down. “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 [the 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 . . . .” (121 Cal.App.2d at p. 383.) The point was reiterated in Nava v. McMillan, supra, *939123 Cal.App.3d 262, 266, where the court held “[i]n this particular instance, defendants could not reasonably foresee that the mere appearance of the dogs at the fence or their barking might cause plaintiff, who was on the public side of the fence, to become frightened and to run into the street where she was subsequently struck by an automobile.”

Examining the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], to determine whether a duty exists, the Nava court went on to state: “Our conclusion on the unforeseeability of harm in this case also applies to the factors of certainty of injury and closeness of the connection between the defendant’s conduct and the injury suffered. Also, no moral blame can be attached to defendant dog owners here as they kept the dogs on premises completely surrounded by chain link fencing. Needless to say, the consequences upon the community of imposing a duty as suggested by plaintiff would be totally unreasonable: the owner of a dog would in effect be required to keep man’s best friend’ in a place where it could neither be seen nor heard by members of the public passing by. In short, the duty sought to be imposed by plaintiff offends common sense.” (123 Cal.App.3d at p. 266.) These same policy considerations apply with equal force to a previously harmless dog kept at home.

Of course, it would be possible to require dogs to be confined in cages like wild animals, but that would completely frustrate the very purpose for which dogs are kept as pets. As the Nava court accurately put it, “[k]eeping a pet dog is undoubtedly one of the most cherished forms in which the constitutionally protected right to own personal property is exercised. To most people it is more than ownership of mere personal property. More than once courts have recognized that the keeping of such pets ‘is such an important part of our way of life,’ . . . and have recognized the perhaps sentimental but nonetheless universally strong affection of mankind for the dog. . . . The status of the dog as ‘man’s best friend’ remains .... Unlike a grizzly bear, which is a wild and dangerous animal, the dog is a domesticated animal whose occasional presence in homes and neighborhoods is to be expected.” (123 Cal.App.3d at p. 267, citations omitted.) For all of these policy reasons, it would be wholly inappropriate to impose liability for negligence on owners of peaceful dogs for failing to confine or constantly control them.

Since it is generally not foreseeable that a previously gentle and harmless dog will attack a human by jumping upon him, in order for the plaintiff to prevail in this case on a theory of negligence she was required either to establish that the dog’s owners knew or should have known that the dog presented a particular risk of harm to persons visiting the owners’ home because of its dangerous propensities, or that the defendants mishandled the *940dog at the time of the incident. As the cited annotation recounts in the context of business owners, “[t]he drawback to proceeding on a negligence theory is that in order to prevail, the injured person must show that the business owner or operator knew or had reason to know that the animal presented a danger to the safety of his patrons.” (Annot., Liability of Owner or Operator of Business Premises for Injury to Patron by Dog or Cat, supra, 67 A.L.R.4th 976, 988, citation omitted.) Thus, “if the animal appears to be harmless . . . , then the injured patron generally has no basis for recovery.” (Ibid.) This is equally true outside of the business context and consequently the same rule applies to the owners of a dog kept at home.

Of course, if the owners know or should have known that their dog possessed a dangerous characteristic, propensity or abnormality, they would then be liable in negligence for their failure to use reasonable care to prevent this foreseeable harm. (See, e.g., Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 511-514 [118 Cal.Rptr. 741, 81 A.L.R.3d 628].) Indeed, most of the out-of-state cases relied upon by the majority are of this ilk.

These sister jurisdiction cases of negligence all involved dogs which would be classified as dangerous under California law. As the court correctly explained in Williams v. Johnson (Wyo. 1989) 781 P.2d 922, 923, “[t]he common law also provided that the owner of an animal which was not vicious or not known to be 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 forseeable risk of harm, he failed to exercise reasonable care in his control of the animal. . . .” (See also DeRobertis v. Randazzo (1983) 92 N.J. 144 [462 A.2d 1260, 1267] [“owner of an abnormally dangerous dog owes a duty of care to an infant trespasser”]; Arnold v. Laird (1980) 94 Wn.2d 867 [621 P.2d 138, 141] [“only alleged negligence demonstrated by plaintiffs was confined to claimed deficiences in maintenance and control which allegedly resulted in a dangerous animal”]; Endresen v. Allen (Wyo. 1978) 574 P.2d 1219 [dog with proclivity to escape from yard and chase cars, distracting motorists]; Westberry v. Blackwell (1978) 282 Ore. 129 [577 P.2d 75] [defendant knew dog had bitten plaintiff coming onto premises; question for jury whether defendant failed to use reasonable care to restrain dog as plaintiff left].)

Similarly, the owners would be liable in negligence if they carelessly mishandled the animal, whatever its character. (See, e.g., Barnett v. La Mesa Post No. 282 (1940) 15 Cal.2d 191, 194-195 [99 P.2d 650]; Talizin v. Oak Creek Riding Club, supra, 176 Cal.App.2d at pp. 437-438; Baley v. J. F. *941Hink & Son (1955) 133 Cal.App.2d 102, 108 [283 P.2d 349]; Baugh v. Beatty (1949) 91 Cal.App.2d 786, 790-791 [205 P.2d 671].)

This was the basis for the court’s decision in Ryman v. Alt (Minn. 1978) 266 N.W.2d 504. The Ryman court held that the owner could be liable in negligence for mishandling its dog. “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.” (Id. at p. 508.) There, the owner held his Saint Bernard dog (which had bit the owner once), saying he had a good grip, and invited a child to pet the dog. The dog broke loose and attacked the child. “Plaintiffs here appropriately pleaded negligence. If their proof is adequate to show [the owner] was negligent, they may recover without showing viciousness of the dog and scienter. . . .” (Ibid.)

There is nothing extraordinary about imposing liability for negligence in mishandling animals. Thus, “[a] person may also be liable for negligence in handling an animal known to be dangerous[,] and may be liable for negligence in handling an animal that is not vicious, or, if vicious, is not known to be so.” (Talizin v. Oak Creek Riding Club, supra, 176 Cal.App.2d at pp. 437-438, citations omitted.) But this case, like the Talizin case, did not involve mishandling of a domestic animal. At the time of the incident, defendants apparently were inside their home and were not handling the dog at all. As the Talizin court explained in a case involving a horse, “the negligence was not in the manner in which the animal was handled, but in permitting him to be jumped, at a public exhibition, even when ridden by a skilled rider. This can be negligence only if the defendants knew or should have known . . . that the horse had the dangerous propensity that it had.” (Ibid.)

The only evidence about the dog’s dangerous propensity in this case was that it jumped up on plaintiff with such force as to cause her to fall and, according to plaintiffs disputed version, the defendant admitted the dog “had a habit of jumping on people.” Although this evidence was disputed, it was sufficient to establish a known, dangerous propensity and thus to entitle plaintiff to submit the case to the jury on a theory of negligence as well as strict liability.4 Although negligence is a conceptually different theory than strict liability, in the case of docile dogs the two theories overlap in *942significant part. But here the trial court offered to present the case to the jury under the only theory of negligence established by the evidence, namely that defendants knew or should have known the dog had a habit of jumping on people and failed to take reasonable precautions to avert this foreseeable harm. The court thus offered to modify BAJI No. 3.10 (7th ed. 1986 bound vol.), the standard instruction defining negligence and ordinary care, by limiting its application to the situation where defendants knew or should have known of the dangerous tendency of the dog.5 In my view, this proposed modification correctly reflected the law in California under the facts established by plaintiff. It is settled that “[t]he judge may modify a requested instruction to make it applicable to the case or to correct defects in content or form.” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 247, p. 252.) Plaintiff’s refusal to accept a correct instruction waived any claim of instructional error.

Although plaintiffs counsel acknowledged that “the case law may say that you can’t sue somebody unless there is a dangerous propensity,” he nevertheless declined the court’s offer, stating he thought it to be “bad law.” As he saw it, “when people put dogs out in their front yard like that, they should know that whenever a stranger comes up, that dog is going to react, may do something.” Summarizing his position, counsel put it this way: “I am saying the case law is probably against me; all right. But for purpose of appeal, if you rule against me, I want to say I think that a person that is injured by a dog that is negligently maintained, whether or not there is a dangerous propensity shown, should be able to sue. Okay? fjfl Now the case law may be against me on that, but we have evidence now that maintaining a dog in your front yard like that is—he’s going to react to strangers, and I think that’s negligence, and I think there should be liability for something like that.”

This contention at trial that a dangerous propensity need not be shown was at odds with the way plaintiff pled her cause of action for negligence. She *943alleged that defendants “negligently . . . failed to maintain or control a certain large dog, which defendants, and each of them, knew, or in the exercise of reasonable diligence should have known, would and in fact did, attack and grievously injure persons, including but not limited to the plaintiff, . . In any event, counsel for plaintiff is mistaken when he implicitly asserts 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. This exaggerated claim, regrettably adopted by the majority, has no basis in law. Apparently, the majority labors under 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. Hence, if the dog runs up to greet the mailman and becomes entangled in the mailman’s feet causing him to fall, the dog owners are liable because it is foreseeable that a dog might get under the feet of visitors. By a parity of reasoning, if the dog barks loudly, startling the visitor and causing a fall, the owners are liable once again because it is foreseeable that a dog will bark. This line of reasoning is wholly inconsistent with the Restatement and the previous law in California and ought to be rejected. The majority’s mistaken view is “totally at odds with the present standards which strike a reasonable balance between the lawful enjoyment of pets by their owners and the personal security of others.” (Nava v. McMillan, supra, 123 Cal.App.3d at p. 268.)

If plaintiff’s theory of negligence did not rest upon a dangerous propensity, what did defendants’ negligence consist of? As I have noted, ordinary dogs do not have to be confined of kept in constant control. Thus, the failure to confine or constantly control the dog in this case cannot add up to negligence because defendants were under no duty to do so. Of course, the owner would be liable in negligence if he “sees his dog . . . about to attack a human being . . . and does not exercise reasonable care to prevent it from doing so.” (Rest.2d Torts, § 518, com. j.) But that is not this case.

So if the owners have no duty to confine or constantly control their dog, whence springs their liability for negligence? The majority says foreseeability but that cannot be the case because owners are not expected to foresee that their dogs will cause injury to people unless they have some reason to know the animal is dangerous. And the jury expressly found that the dog in this case was not dangerous. In a special verdict, the jury answered this question in the negative: “Did the dog, Bandit, have a particular vicious or dangerous propensity before August 5, 1987 [the date of the injury]?” Because of this negative answer, the jury was instructed that it need not answer the next question, “Did the [defendants] know or have reason to know of the particular vicious or dangerous propensity of the dog, Bandit?” *944Owners, needless to say, cannot be chargeable with knowledge of a propensity that does not exist.

Because the jury found that the dog did not have any such dangerous propensity, there was no harm to foresee and the owners, in the words of the Restatement, were not “negligent in failing to prevent the harm.” (Rest.2d Torts, § 518, subd. (b).) Thus, any conceivable error from failing to instruct on negligence was rendered harmless by the jury’s special verdict.

I would therefore affirm the judgment.

Respondents’ petition for review by the Supreme Court was denied July 22, 1993.

It is no answer to suggest that the technical legal definition of dangerousness in a domestic animal is at odds with the common understanding of the term and that “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.” (Maj. opn., ante, at p. 931.) Plaintiff did not request any such clarifying instruction explaining that “[a]ny propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangeorus or vicious propensity within the meaning of the law.” (Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 435 [1 Cal.Rptr. 514, 80 A.L.R.2d 878].) Having failed to request such an instruction, plaintiff cannot now claim that the jury’s finding of nondangerousness must be disregarded.

As is the case with many states, California has enacted a “dog bite” statute which supersedes the common law rule by dispensing with the necessity of proving the scienter requirement. (Civ. Code, § 3342.) Because the dog in this case did not bite the plaintiff, and since this statute imposes liability only “for the damages suffered by any person who is bitten by the dog” (Civ. Code, § 3342, subd. (a)), it has no application here.

The Ballard court went on to explain that “[t]he jury, by contrast, considers foreseeability’ in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place. Second, foreseeability may be relevant to the jury’s determination of whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.” (41 Cal.3d at p. 573, fn. 6.)

As we have noted, the majority draws an untenable distinction between dogs possessing vicious or dangerous propensities and those which otherwise pose a risk of harm to others. But as we have already seen, California treats any propensity of a dog which is likely to cause harm to people as a dangerous propensity. (Talizin v. Oak Creek Riding Club, supra, 176 Cal.App.2d at p. 435.) If, as the majority postulates, the jury might have found under the circumstances that defendants could have anticipated their dog would jump on visitors and *942knock them down, then the defendants were chargeable with knowledge of the dangerous propensity of the dog. Liability in negligence in this scenario would then flow from the owners’ failure to take reasonable steps to prevent the forseeable harm from their dangerous dog. But the jury found that the dog was not dangerous and thus there was no basis for imposing a duty upon the owners.

BAJI No. 3.10 reads: “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 circumstances similar to those shown by the evidence. [j[] It is the failure to use ordinary or reasonable care. [1] 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, [f] [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.]”