What creates liability in the firs place?

San Mateo County Personal Injury Attorney Reuben Donig: So liability means that one side has the legal obligation to pay damages to the other. Usually, I would say, 80% to 90% of the cases, liability is created because of negligence. If somebody is negligent and causes an injury then they are liable because they were negligent and caused the injury. But sometimes there is liability even outside of negligence. Usually, that’s called strict liability. There are many instances where legally a person or entity will be liable to compensate you for your damages even though they were not negligent.

I would say the most common areas where that occurs would be an employer being liable even though the employer was not negligent when his employee was careless and caused an injury. So, the employer has liability and it’s strict, it’s called ‘vicarious liability’ because of the negligence of the employee. If somebody who’s working for me goes out on an errand for me during work hours, helping me out and causes a car accident where someone else is injured. I, as the employer, am vicariously liable even if I was careful in picking my employee and hiring him or her and thought that he or she was a good and careful driver.

There’s a concept of strict liability where the owner of a dog for example or any kind of an animal will be strictly liable if that animal causes injury under certain circumstances. In California, we have a dog bite statute. I can be the most careful person in the world, I can think I have the best dog, the best natured dog in the world but if my dog intentionally, or even my dog accidentally bites another person causing injury, I’m liable as a matter of law regardless of whether I’m negligent. If my dog gets in a dog fight with another dog and some person tries to break it up, my dog may not have intended to bite the person, and my dog may not have even started the dog fight but if a person is bitten that’s just part of the risk of being a dog owner, there’s strict liability.

In California, there’s no one free bite rule. If you own a dog and that dog bites another person, you are almost always strictly liable. You’d have to show that the person who was bitten actually provoked the dog and started a fight with the dog to avoid any liability on that. There’s strict liability if you have any kind of a wild animal in your house. If you wanna have a pet tiger or pet chimpanzee, if that animal injures somebody there’s strict liability.

By the way, getting back to dogs for a second, don’t confuse the bite issue with what sometimes happen when a dog runs around without a leash on. They sometimes will trip or injure a person without causing a bite, that’s different than the strict liability, however. There’s no complete strict liability. Usually, you have to show a violation of leash laws.

There’s strict liability in the area of products. A bottle of Coke may explode and cause serious injury. You might have gotten that bottle of Coke from a local Safeway, but they didn’t manufacture the bottle, they didn’t put the Coca-Cola in the bottle, that happened at a bottling factory and the Coca-Cola may have been manufactured somewhere else and the bottle somewhere else, and it could have gone through a chain of distribution until it got to that Safeway store. But the law of product liability is that every person in the chain of distribution, from the time the original defect occurs in the product, by design or by the way it’s manufactured, from that point on every distributor, manufacturer, wholesaler, middleman, middle-woman, retailer, they’re all considered strictly liable and whoever is the handy target, whoever’s the deep pocket is an entity that can be named and has liability to reimburse you.

So strict liability is usually the other alternate to negligence to create liability. Parents would be strictly liable for certain kinds of conduct of their children regardless of whether they were careful or not. People who let their car be used by other people regardless of whether they’re careful or careless, they’re automatically strictly liable up to $15,000 dollars per person, $30,000 dollars aggregate in California if a person who’s using their car, a permissive user, causes injury to somebody else. So those are just a few examples of where you can have liability even if you don’t have negligence.

(Attorney Reuben Donig specializes in personal injury law and premises liability, including auto and car accidents in San Mateo County, Santa Clara County, Alameda County and San Francisco County. Visit him at www.doniglaw.com if you have a question you’d like to ask).