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Subject: September 14 2006 LBL Weekly Law Resume

Low, Ball & Lynch’s

WEEKLY LAW RESUME

September 14, 2006  Issue  By: Ray Coates

 

Duty of Care - Assumption of the Risk - Dog Bite

 

Marta Priebe v. Russell Nelson

(August 28, 2006)

 

California Supreme Court

 

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 California, the veterinarian’s rule holds that an owner is not liable for dog bites to a veterinarian who is taking care of a dog. The Supreme Court decided that rule should be applied here. This is based upon the principle that a veterinarian or a veterinarian assistant who accepts employment for the medical treatment of a dog, should be aware that any dog, regardless of its previous nature, might bite while being treated. This risk is assumed as part of the risk of the occupation. This rule has also been applied to veterinary assistants or others such as kennel workers.

 

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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