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Cunningham v. Ostray2/18/2003
He also brought the dog to the veterinarian for shots. Everyone in the family considered Robert to be the dog's owner. No evidence suggests that Ostray undertook to control the dog's action. Cunningham failed to raise a genuine issue of material fact that Ostray ever owned the dog.
Someone other than the owner, a keeper, also can be liable for a dog's attack if the keeper had previous knowledge of the dog's "vicious propensities." (Buffington v. Nicholson, supra, 78 Cal.App.2d 37, 41- 42.) No evidence suggests that Ostray, or anyone in Ostray's family, knew the dog had vicious or dangerous propensities before the attack on Cunningham. At one point in the briefing, appellant seems to argue that the dog's vicious propensities may be imputed to Ostray because the breed is inherently dangerous. The parties dispute the dog's breed: American Pit Bull Terrier, or Sharpei and terrier mix. Whatever the ancestry, we cannot supply by judicial notice that which appellant here failed to establish by proof: the vicious propensity. (See Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822.) So the trial court's grant of summary judgment was appropriate.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED
We concur:
HASTINGS, J.
CURRY, J.
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