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Don’t Bite the Hand that Feeds You – Recent Judicial Decision Impacting Landlords
Posted in Real Estate

Many owners of apartment buildings and other investment properties face issues with their tenants.  One of those issues is that of tenants and the trouble their pets can cause. A recent decision handed down by the Court of Appeals of the State of Indiana dealt specifically with this issue. 

In the case of Morehead v. Deitrich,  the Court of Appeals held that a landlord was not liable for injuries sustained by a postal worker being bitten by a tenant’s dog.  In this case, the tenant lived in the landlord’s single–family house, a fact that could have been significant to the outcome of the case.  Evidence in the case indicated that though the landlord had concerns over allowing the tenant’s dog to live with the family at the house due to the nature of the breed of the dog and its “reputation for viciousness,” the landlord allowed the dog to stay.  The dog eventually bit Morehead, the postal carrier, and she filed suit. 

In Indiana, in order for a landlord to be liable for the injuries to another person sustained by a tenant’s dog:

(1) the landlord must retain some control over the premises where the dog is kept; and (2) the landlord must have knowledge, at the time of the injury caused by the dog, of the dog’s vicious propensity.  

There appeared to be no question that the landlord was aware of the dog’s vicious propensities based on the evidence presented in the case; however, the postal carrier conceded that the landlord did not have control of the premises when the dog bit her.  The postal carrier lost at the trial court level and appealed.  On appeal, the Court of Appeals characterized her claims under the theory of premises liability since she alleged that the landlord’s knowledge of the dog’s vicious propensities when he entered into the lease with the tenant created a duty for the landlord to prevent a dangerous condition on the property.  The court ultimately disagreed, stating that although it was reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger, may bite the stranger, it was not, however, reasonably foreseeable that the dog would in fact escape – and that it was the responsibility of the owner of the dog to keep it confined.    

Would this case have been decided differently if this injury occurred within an apartment building with multiple tenants and common areas shared by the tenants (which the landlord retains control of)?  What if the injured party would have been a child?  What if the injured party would have died from her injuries?  While a change in the identity of the injured party or the extent of the injuries may not (and probably should not) have made any difference in the outcome of this case, could the nature of the rental property have made a difference? 

In apartment complexes and other multi-tenant properties, the landlord commonly retains responsibility to maintain and control areas of the premises used by other tenants of the complex/property (commonly referred to as “common areas”).   The court’s holding in the Morehead case would still seem to be unaffected by the location of the dog attack if the dog had escaped from its owner’s apartment, but what if the dog bit someone while being taken out of the apartment complex on its leash?  Would this case have come out differently?   

Knowing that tenants’ pets can cause potential liability problems, apartment complex owners and other landlords could greatly benefit from staying on top of recent court decisions involving this matter.  The Morehead case in particular teaches us that: (1) if you choose to allow pets, restrict the size or types of pets (i.e., no big dogs, no notoriously vicious breeds); this may be a desirable balance to protect landlords, tenants and visitors to the complex; and (2) if you are aware that there is a dangerous animal on your premises, require the tenant remove it from the premises immediately before anything can happen.

To learn more about David A. Adams and his practice, visit his profile.

  • Partner

    David is a member of the Corporate Services Department and Real Estate Practice Group. David's practice currently focuses largely on real estate development, including sales, leasing and financing. David represents banks and ...



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