For most people, with or without young kids, Halloween is a fun time. This article is in no way meant to diminsh that fun. However, your Halloween night would be a lot less fun if you later found yourself slapped with a lawsuit for an unintended consequence that happened on Halloween night. So, let’s talk about what you can do to keep your potential liability to a minimum, should a “trick or treater” accidentally get hurt on your property.
First off, Pennsylvania follows an archaic system that determines a homeowner’s duty of care by the status of the entrant on your land. In other words, how much care and preparation you must make is governed by the purpose the visitor came to your property. Without getting overly technical, a trick or treater is called a “licensee,” as is any social guest in PA. The other main categories are trespassers (child and adult) and invitees (public and business types). If your house lights are on, the kid coming there for candy is a licensee. If your house is pitch black, the kid coming there for candy may be reduced to the status of a trespasser (although you would still owe him or her a duty of care for hidden dangers, since you know kids might knock up even after your house is pitch black.)
What is a licensee?
A licensee is generally only owed a duty to be warned about dangerous conditions on your property of which he could not reasonably be expected to see or discover. So, let’s talk about two of the most common: “Beware of Dog” and swimming pools. If you have either of these, you need to have a prominently placed sign warning trick or treaters. This is true whether they come in the house or you go outside to give them the candy. Some children have anxiety around dogs to the degree that hearing one bark and seeing one come lunging toward the door, even tail wagging, could produce unintended consequences. So, our first piece of advice to prepare for this holiday, legally speaking, is: WARN, WARN and WARN. Make sure your signs are clearly posted, so kids can see them as they walk toward your house. Post them on a bay window. Post them on your door where you will exit to give them candy. Silly? Maybe, but why take the risk, both for the sake of the child and for your own potential liability. When in doubt, warn.
A homeowner must warn a licensee (kid) about anything which the kid might reasonably not recognize as potentially dangerous. I don’t know about you, but my two teenage boys were not the sharpest tools in the shed when it came to avoiding what could be dangerous. The younger boy never met a dog he didn’t want to pet. The older boy never met a basketball court he didn’t want to play on. But what if the court has a pothole in it? What if the basketball post is not cemented in or weighed down, such that it could fall over when the ball is dunked? If you’re not sure, warn about it. Ideally, you should fix it but if you can’t fix it, warn about it in a simple, conspicuous and unmistakable way. Don’t use legal words. Use pictures of danger and words that a young kid would understand.
Dog Owners Beware
Now let’s talk about dogs. I love dogs. I own more of them than I will tell you. I am quite active in rescuing dogs and foster quite a few, in the hope that someone will adopt them some day.
Mr. Ostroff owns two adorable little dogs, who even visit the office from time to time. So understand, we at Ostroff Injury Law are big time dog lovers. But our purpose here and now is to protect dog owners, like us and like you, from potential liability because of their dogs. Pennsylvania has recently enacted laws which effectively make it much easier to successfully sue a dog owner whose dog bit someone, child or adult, even without having notice of the dog’s propensity to bite. Even a mild mannered dog could bite someone under certain circumstances and PA law has come to recognize this truth.
Dog Liability Laws
First, here is the law itself, and its meaning can be complicated:
A. Pennsylvania’s Leash Law, 3 P.S. Section 459-305.
1. Confinement of dogs
It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either:
(1) confined within the premises of the owner;
(2) firmly secured by a means of collar and chain or other device so that it cannot stray beyond the premises on which it is secured; or
(3) under the reasonable control of some person, or when engaged in lawful hunting, expedition or field training.
So the stylish people who like to walk their dog with no leash have already violated this part of the law.
B. “Dangerous Dog Statute”/3 P.S. Section 459-501-A through Section 459-507-A
The law used to be that to make a dog’s owner criminally responsible for a dog biting someone, there had to be evidence of a dog’s propensity to attack without provocation. However, the changes in 1996 modified that law to allow for criminal liability far more easily.
3 P.S. Section 459-502A provides:
(a) Summary offense of harboring a dangerous dog. – Any person who has beenattacked by one or more dogs, or anyone on behalf of such person, a person whose domestic animal has been killed or injured without provocation, the State Dog Warden or the local police officer may file a complaint before a district justice, charging the owner or keeper of such a dog with harboring a dangerous dog. The owner or the keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the district justice finds beyond a reasonabledoubt that the following elements of the offense have been proven:
(1) The dog has done one or more of the following:
(i) Inflicted severe injury on a human being without provocation on public or
(ii) Killed or inflicted severe injury on a domestic animal without provocation while off the owner’s property.
(iii) Attacked a human being without provocation.
(iv) Been used in the commission of a crime.
(2) The dog has either or both of the following:
(i) A history of attacking human beings and/or domestic animals without provocation.
(ii) A propensity to attack human beings and/or domestic animals without
provocation. A propensity to attack may be proven by a single act of the
conduct described in paragraph (1)(I), (ii), (iii) or (iv).
(3) The defendant is the owner or keeper of the dog.
A propensity to attack humans can be shown by a single incident. If the dog is found to be a “dangerous dog,” things get much worse– for the dog and the dog’s owner. Here is the alarming part of Pennsylvania’s dog liability laws:
(a.1) EFFECT OF CONVICTION – A finding by a district justice that a person is guilty, under subsection (a), of harboring a dangerous dog shall constitute a determination that the dog is a dangerous dog for purposes of this act.
(c) ATTACKS CAUSING SEVERE INJURY OR DEATH – The owner of any dog that, through the intentional, reckless or negligent conduct the dog’s owner, aggressively attacks and causes severe injury or death of any human shall be guilty of a misdemeanor of the first degree. In addition, the dog shall be immediately confiscated by a State dog warden or a police officer, placed in quarantine for the proper length of time and thereafter humanely killed in a expeditious manner, with costs of quarantine and destruction to be borne by the dog’s owner.
So, the dog gets killed and its owner is charged with an M-1 level crime. In Pennsylvania, an M-1 is quite serious, even though not as serious as a felony level crime. It is punishable by a jail sentence of up to five years in jail. It is as serious of a crime as involuntary manslaughter in Pennsylvania. Even a landlord out of possession can be held liable for the actions of his tenant’s dangerous dog:
In Gallick v. Barto, 828 F. Supp. 1168, 1174-1175 (M.D. Pa. 1993), quoting Palermo v. Nails, 334 Pa. Super. 544, 547-548, 483 A.2d 871, 873 (1984), and applying Pennsylvania law, the Middle District federal court commented that “‘a landlord… may be held liable for injuries by animals owned and maintained by his tenant when the landlord has knowledge of the presence of the dangerous animal and where he has the right to control or remove the animal by retaking possession of the premises.'”
Keep the dogs inside on Halloween night. Keep them in a locked room where they can’t come out and visit the kids. Don’t take the chance of something bad happening. The unintended consequences could involve permanent injury to the child, a conviction for you the owner and the killing of the dog. Accidents happen because they are accidents, not intentional. The road to hell is paved with the best intentions, as they say. Take sensible precautions.
We keep our dogs locked in the farthest room from the house’s front door, with soft music on to distract them, treats, and all the lights on. We even have a prescription from the vet for Valium for our Blue tick coon hound rescue dog, a bloodhound. I’m not recommending you go to that extreme, but our firm recommends that you keep your dogs isolated, segregated and occupied. Distract them with soft music and keep the lights in their room on, since Halloween is at night. Give them treats (not chocolate) throughout the night. Answer the door before any trick or treater has to ring the doorbell or knock up.
But please, above all else, don’t let the trick or treaters see or pet your dogs. It is just not worth risking all that could go wrong as a result. Now you see just how dire the consequences are, and why the risks far outweigh the benefit. Oh—and Happy Halloween!