SW Legal studies in Business

Person Bitten by Neighbor's Dog Was Trespasser
Description Appeals court held that a woman bitten by a neighbor's dog, when she was trying to calm the dog during fireworks, was a trespasser who did not have consent to enter the property for such purpose. Since the injury inflicted was not wilful or wanton, there is no liability.
Topic Real and Personal Property
Key Words Trespass; Personal Injury; Negligence; Strict Liability; Privilege; Consent
C A S E   S U M M A R Y
Facts Colmus lived next door to the Sergeevas who owned a German shepherd, which they kept in a fenced yard that had "Beware of Dog" signs on it. Colmus would pet the dog through the fence at times and once entered the yard to give the dog some food. She told the Sergeevas about doing that. On July 4, when the Sergeevas were gone and fireworks were being set off, Colmus saw the dog was agitated by the noise. She went up the Sergeevas' driveway and petted the dog over the fence. A firecracker exploded and the dog "lashed out" at her and bit off the end of her nose. She sued the Sergeevas for negligence, for leaving the dog unattended and for failing to warn her of the dangers of the dog; and she sued for strict liability, contending that the Sergeevas knew the dog to be dangerous. The trial court dismissed the suit; Colmus appealed.

Affirmed. Colmus was a trespasser when she went on the property to pet the dog. Consent may constitute a privilege to trespass if there is evidence of actual willingness on the part of the landowner to have the trespasser engage in the particular type of entry; such actual willingness may be inferred from the landowner's inaction in the face of prior entry, but only if the owner has actual knowledge of the trespasser's intention to enter. The Sergeevas did not consent for Colmus to enter their property and pet or feed their dog; the fact that she did it once and told them did not constitute consent. "A landowner is subject to limited liability to trespassers for injuries that occur on the landowner's property." Such liability occurs only when injury has been inflicted "wilfully or wantonly."

Citation Colmus v. Sergeeva, 27 P.3d 166 (Ct. App., Ore., 2001)

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