HOA may be liable for pit bull attack

Ryan Poliakoff | BrevardCounty

QUESTION: I was hoping you could help answer questions about a recent event that took place in our HOA community. My mom was walking her small dog outside. Within 30 feet of her home she passed her neighbors home and their pit bull raced out of the home and attacked my mother and her dog. Luckily, my mother was not physically injured. However, our dog was badly injured and left for dead. We got him to the vet in time, and he is making a slow recovery. The neighbor has paid for the vet bill. The question however, is whether the HOA is legally obligated to have bylaws or a policy on pets? It seems they do not. What is their responsibility to ensure the safety to the community?

The neighbor with the pit bull is new to the community. On previous applications to purchase in our community, there was always a question about whether the person has pets, and if the pet was on an approved breed list. We do not have access to that list. With that being said, it seems that no one checked (or clearly overlooked) that the neighbor had a pit bull. Is the HOA at fault if that is the case?

Poliakoff: I’m sorry to hear about your mother’s dog, and I hope he makes a full recovery. I’m sure this was an awful experience.

First, and I know it is not always popular to say so, but the fact that your neighbor’s dog is a pit bull did not, in and of itself, lead to your mom’s dog getting attacked. Some dogs are friendly to other dogs, and some are not. I have a miniature poodle that is not always friendly to other dogs (particularly where food is involved). She’s fantastic with people, and gets along with some dogs, especially on neutral ground — but she’s just not trustworthy with dogs in general. Similarly, I have known many pit bulls who are sweet as pie and would literally roll over if attacked by another dog, and would never retaliate. Of course, my poodle would have to try very hard to really hurt another dog, even if she were to get into a fight. She’s just not that large or strong. In contrast, pit bulls, like a lot of other breeds of dog, are extremely strong and muscular and have big powerful mouths — so if a particular pit bull is dog-aggressive, it can do a tremendous amount of damage. My guess is that the dog that attached your mom’s dog is territorial and saw your mom’s dog as a threat when he passed by. That’s no excuse for the owner allowing this to happen, of course — the pit bull owners were entirely responsible for what happened, and they were right to pay for your dog’s vet bills. I’m sure they feel terrible that this happened — remember that their pit bull is their family pet, and I’m sure they love it just as much as your mom loves her dog.

There is nothing inherent in the rights and obligations of a community association that they have an inherent responsibility to control pets, absent covenants or rules that provide otherwise. Many covenants do contain pet restrictions, and it is probably also acceptable for an association board to promulgate rules that restrict pets, as well. If your association does, in fact, have covenants or rules that restrict pets (whether by size, or breed) I do think the association would have some liability in the event of a dog attack, if it can be demonstrated that the association’s failure to enforce their rules was directly related to the attack. In fact, I am aware is at least one case where a court specifically held that an association that failed to enforce its pet size restriction was potentially liable for damage caused by that pet (as I recall, a Great Dane).

Of course, it’s also possible that the association did not allow this pit bull into the community voluntarily — it may have been an assistance animal, and so the association would be legally prohibited from restricting it based on its breed. Now that it has attacked another dog, the accommodation allowing the dog would likely be out the window—but that would not mean the association was negligent in allowing the dog to live in the community in the first place.

Finally, even if the association was lax in enforcing its covenants or rules and ignored the breed restriction when approving the owner, its only real liability would be for actual damage caused to your dog — the vet bills or, if the worst had happened, the value of your dog. Dogs are considered property under the law, and so, given that the owner ended up reimbursing you for your damages (the cost of the pet bills) the association is likely off the hook for any further damages.

Ryan Poliakoff is a partner at Backer Aboud Poliakoff & Foelster, LLP. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.