Low, Ball & Lynch’s
WEEKLY
LAW RESUME
Duty
of Care - Assumption of the Risk - Dog Bite
Marta
Priebe v. Russell
Nelson
(
This case concerned the
question of whether a kennel worker can sue either for negligence or strict
liability a dog owner for injuries sustained by a dog bite or attack while the
worker was caring for the owner’s dog. It involved the application of the
assumption of the risk doctrine.
Russell Nelson boarded
his pit bull “Mugsey” at a kennel while away. Mugsey had a known aggressive behavior problem. Nelson
claimed he told the kennel of this problem when he boarded Mugsey. While being taken for a walk, Mugsey became agitated by another dog and knocked Marta
Priebe, a kennel worker, down, and mauled her
foot and ankle.
Priebe sued Nelson for
statutory and common law liability. At trial, the Court refused instructions on
strict liability and submitted the case to the jury on negligence. A defense
verdict was returned. However, the trial court granted a new trial motion.
Nelson appealed.
The Court of Appeal
affirmed the trial court ruling and the Supreme Court granted Priebe’s petition for review.
The Supreme Court
affirmed the trial court and the Court of Appeal. Civil Code Section 3342
provides strict liability for the owner of any dog which bites another person.
The Supreme Court decided the question of whether the doctrine of primary
assumption of the risk relieves the owner from liability under the statute.
The Court noted that, in
However, the Court noted
that Priebe could still pursue a common law strict
liability claim based upon Nelson knowingly placing a vicious dog with the
kennel and failing to disclose that fact to any of the kennel personnel. Such
evidence would prove that the kennel workers were exposed to a unknown risk of injury beyond that normally associated with
work in a dog kennel.
The Court felt that
barring a statutory strict liability cause of action was supported by several
reasons. First, kennel workers are in the best position to take safety
precautions to avoid people being bitten. Secondly, the professional has assumed
control of the dog and cannot maintain a cause of action for failing to control
the dog. Third, the risk of being bitten is an inherent danger in the
occupation. Finally, this policy would encourage dog owners to avail themselves
of dog kennels without the threat of liability in lawsuits hanging over their
heads.
The Court concluded
therefore that Priebe, by virtue of her occupation,
assumed the risk of being bitten, and thus, a strict liability cause of action
against Nelson was unavailable. However, she could pursue a common law strict
liability claim against Nelson for knowingly keeping a domestic animal with
vicious propensities. The judgment was therefore
affirmed.
COMMENT
This Supreme Court
decision will establish immunity for dog owners who turn their dogs over to a
kennel for care as long as they fully disclose to the kennel the propensities of
their animal. This is another step in the development of the primary assumption
of the risk doctrine, which has been developed and expanded by this Supreme
Court.
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