Agenda - 04-08-2014 - 2 - Laserfiche WebLink

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15 Trespass& ViaousAnimals Page 2 Professor Wall and Mr.Tyner's analysis reveals that children and adults are not, in fact,treated the same in law, and at least suggests that social policy codified in the County's ordinance should somehow reflect their significant difference in standing, competencies, and responsibility. Fundamental to the approach recommended by Professor Wall and Mr.Tyner isthat it is not sufficient to determine whether or not thevictim of a bite ison the property of the owner without some explicit permission from the owner. 3 The reason is that there is a substantial body of applicable law recogniang that there are many lawful reasons for a person to be on another person's property without explicit and/or prior permission.Acritical question is,then,whether there isawillful trespass, i.e.,atrespass in which a person willingly enters onto the property of another despite indications that s/he should not do so or should have reservations about doing so. Whether there isawillful trespass, according to Professor Wall and Mr.Tyner, depends upon prevailing social customs. As a result of civil codesthat have come into existence historically,there are many situations in which it is permissible or even expected that a stranger or uninvited person may enter onto the property of another. Going to a neighbor's house to borrow something is a very simple illustration. In situations of this kind,there iswhat Professor Wall and Tyner describe as"apparent (or implied) consent" based upon social (or community)custom, and according to their analysis,this iswell recognized in trespass laws. Determining whether an uninvited person has the apparent consent of an owner to enter onto his or her property depends upon various characteristics of the property. Sbme of these are quite explicit and unequivocal , e.g., signs declaring"No Trespass" or"Beware of Dog." Others take very material forms, e.g., fences and gates. Varied characteristics can and do combine in some powerful messages,for instance, stockade fencingwith no trespass signs at frequent intervals. Others characteristics of a property may indicate not only whether there is apparent consent but the scope of such consent. One illustration is a sidewalk from a public street that ends at a front door or breezeway. In this situation, it maybe readily apparent that a person may approach the house but not nearly so apparent that that there is an implied consent for them to go elsewhere on the property. Another illustration is a paved or gravel driveway that comes up to a house and then transitionsto a dirt road that Ieadsto outbuildingswell beyond the house. As in the first illustration,the apparent consent for an uninvited guest to come onto the property may well end when s/he comes to the house and transition in the driveway. 3 In no way doesthis approach discount the importance of knowing whether a person has been invited onto the property on which they were bitten by the dog owner. 3ich invitation is what Professor Wall and Mr.Tyner refer to as"express consent" and such consent essentially means that the victim of the bite was not trespassing. There could well be other reasons why the biting dog is not declared a vicious dog,e.g.,the bite victim has tormented or abused the animal in the past or somehow provoked the person at the time of the bite. However,an exception may not be made to declaring the dog vicious because of trespassing when a bite victim has permission or express consent to enter onto private property.