California Supreme Court Reports
PRIEBE v. NELSON, 39 Cal.4th 1112 (2006) MARTA PRIEBE,
Plaintiff and Appellant, v. RUSSELL NELSON, Defendant and
Appellant. No. S126412 Supreme Court of California. August
28, 2006
Appeal from the Superior Court of Humboldt County, No.
DR010121, J. Michael Brown, Judge. Page 1113
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 1114
Law Offices of Ruel Walker, W. Ruel Walker; Janssen,
Malloy, Needham, Morrison, Reinholtsen & Crowley, W. Timothy
Needham and Michael Morrison for Plaintiff and Appellant.
Chapman, Popik & White, Susan M. Popik, Benjamin J. Riley;
Mitchell, Brisso, Delaney & Vrieze and Nancy K. Delaney for
Defendant and Appellant. Page 1115
OPINION
BAXTER, J.
Plaintiff Marta Priebe, a commercial kennel worker, brought
this action against defendant Russell Nelson for personal
injuries suffered when she was bitten and seriously injured
by Nelson’s dog while it was boarded at the kennel that
employed her. Priebe appealed from the trial court’s order
denying her motion for judgment notwithstanding the defense
verdict, arguing a directed verdict should have been entered
in her favor on her strict liability claim brought under
Civil Code section 3342 (section 3342), commonly referred to
as the “dog bite statute.” Section 3342 makes the owner of
any dog “liable for the damages suffered by any person who
is bitten by the dog . . . regardless of the former
viciousness of the dog or the owner’s knowledge of such
viciousness.” (§ 3342, subd. (a).)
Nelson countered that the so-called veterinarian’s rule
absolved him of any potential liability for injuries
inflicted on Priebe by his dog while it was boarded at the
kennel. Under that rule, which is a recognized application
of the doctrine of primary assumption of risk, a dog owner
who contracts with a veterinarian to treat his or her dog is
generally exempt from liability should the dog bite or
injure the veterinarian or veterinarian’s assistant during
such medical treatment. (See Nelson v. Hall (1985) 165
Cal.App.3d 709, 710 [211 Cal.Rptr. 668] (Nelson).)
The narrow question presented here is whether the
veterinarian’s rule should likewise bar a kennel worker’s
strict liability claim against a dog owner under section
3342 for injuries sustained from a dog bite or attack while
the worker was caring for the owner’s dog boarded at the
kennel. The Court of Appeal concluded the doctrine should
apply, finding Priebe assumed the risk of being bitten by
dogs boarded at the kennel by virtue of the nature of her
occupation as a kennel worker. We find the Court of Appeal’s
analysis sound and shall affirm its judgment.
Our holding with regard to the dog bite statute does not,
however, mark the end of the road for plaintiff. A common
law strict liability cause of action may also be maintained
if the owner of a domestic animal that bites or injures
another person knew or had reason to know of the animal’s
vicious propensities. (BAJI No. 6.66; see also Judicial
Council of Cal. Civ. Jury Instns. (2003-2004) CACI No. 462.)
If Nelson knew or should have known of his dog’s vicious
propensities and failed to inform Priebe of such facts, he
could be found to have exposed Priebe to an unknown risk and
thereby be held strictly liable at common law for her
injuries. (See Lipson v. Superior Court Page 1116 (1982) 31
Cal.3d 362, 371 [182 Cal.Rptr. 629, 644 P.2d 822] (Lipson);
cf. Nelson, supra, 165 Cal.App.3d at p. 715, fn. 4.) Under
such circumstances, the defense of primary assumption of
risk would not bar Priebe’s claim since she could not be
found to have assumed a risk of which she was unaware.
(Ibid.)
Whether Nelson knew or had reason to know his dog had
vicious propensities, and if so, whether he adequately
communicated that fact to Priebe or others at the kennel
when the dog was surrendered for boarding, were matters
sharply contested at trial. The Court of Appeal recognized
the distinction between the elements of Priebe’s statutory
strict liability claim under section 3342, and her remaining
common law claims, affirming the trial court’s order
granting her a new trial on those latter claims. Since that
aspect of the Court of Appeal’s holding has not been
directly challenged on review, Priebe will be afforded an
opportunity to pursue those common law claims on retrial.
FACTS AND PROCEDURAL BACKGROUND
In the fall of 2000, defendant Russell Nelson was scheduled
for out-of-town surgery and boarded “Mugsey,” his 75-pound
Staffordshire terrier, also known as a pit bull, at a kennel
while he was away. Mugsey was “dog aggressive” and had
gotten into fights with other dogs in the past. On one
occasion a year earlier, Mugsey had also bitten Nelson and
another dog owner moments after the two men pulled their
dogs apart to avoid a fight. Nelson required several
stitches in his hand as a result of the incident.
At least one kennel would not accept Mugsey for boarding
when Nelson informed them the dog was hard to control around
other dogs. Nelson then spoke with Peter Clusener, an
acquaintance who worked at the Arcata Animal Hospital
(Arcata), a small veterinary hospital with a kennel
connected to the facility at which dogs are accepted for
boarding even when no medical treatment is required.
Clusener was familiar with Mugsey and knew him to be dog
aggressive. He checked with the Arcata veterinarian staff
and informed Nelson that Mugsey could be boarded there.
Nelson claimed he visited Arcata several times prior to
boarding Mugsey at the facility out of concern over his
dog-aggressive behavior. Nelson testified that during one
such visit he told someone that Mugsey had once bitten him
on the arm. On September 14, 2000, the day he dropped off
Mugsey for boarding, he failed to mention that he had been
bitten by the dog one year earlier. Marlena Folden, the
receptionist who conducted the intake, did not recall Nelson
mentioning either that Mugsey had once bitten him or that he
was dog aggressive. Page 1117
Dr. Oliphant, a veterinarian and owner of the facility,
testified Priebe’s training as a “kennel technician” would
have included the basics of dog walking, including checking
a boarded dog’s kennel card to make sure there was no reason
not to walk it, how to put a leash and collar on properly,
how to greet the dog, and “to be careful of the other dogs
and be aware of the dog that you’re walking.” Her duties
included “caring for the patients and the boarders, feeding,
walking, cleaning, laundry, helping hold animals, assisting
the veterinarians and the technicians holding animals. We
examine them, give vaccines . . . greeting clients, to bring
animals back for vaccines when the technicians were doing
booster vaccines . . . autoclaving [instrument
sterilization], clean surgical packs, instruments, things
like that. Lots of varied duties.”
Dr. Oliphant had occasion to observe Mugsey in the kennel
while he was boarded there and recalled that “[h]e always
appeared friendly. He was a very outgoing, friendly dog.”
Prior to his attacking Priebe, Mugsey showed no signs of
being “human aggressive.” Dr. Oliphant was, however, aware
that Mugsey was dog aggressive; “It was written on his
record and on the cage pen.” Mugsey’s intake record also
reflected that he had been administered 37 milligrams of
apromocine, a sedative, on the day he was accepted for
boarding, in likelihood due to his excitement and excessive
barking. Dr. Oliphant testified there are some risks
associated with walking dogs at the kennel. When asked
whether being attacked or bitten by a dog while walking it
is one such risk, Dr. Oliphant replied, “Well, sure. That’s
possible.”
Dr. Oliphant testified further that when walking a
dog-aggressive dog, “[t]here would be a danger that it might
attack another dog.” When asked if there was a risk that a
person breaking up a dogfight could get bitten, she replied,
“Oh, yes, definitely.” When asked, “If after you talked with
[your] receptionist someone had mentioned something that
triggered her concern, you met with an owner, and the owner
had told you that, for example, he got nipped on his arm
when he was breaking up a dog fight, is that something that
would have concerned you and kept you from keeping the
dog?,” Dr. Oliphant replied, “Not necessarily. It would
depend on the dog and the owner and the circumstances,
because breaking up a dog fight is a very risky thing to do,
and it’s common to get bit when you break up a dog fight.”
Dr. Oliphant testified she would not have accepted a dog for
boarding who had attacked and bitten its owner after a
dogfight because it would be “too much of a risk” for the
staff. In such an instance, she would possibly refer the dog
to the North Bank Kennel facility since “they have
inside-outside runs, so they don’t need to walk dogs; so we
often refer aggressive dogs to them.” Page 1118
Priebe testified she had been working as a kennel worker or
technician at Arcata for about four weeks when she met
Nelson and Mugsey on September 14, 2000. They walked back to
the kennels together. Nelson told Priebe that Mugsey needed
to be walked with his metal-pronged pinch collar. He also
told her that “if anyone hurt Mugsey[,] that he may hurt
them, and that if someone kicked Mugsey, that he may bite
them.” Priebe assured Nelson that no one would hurt or kick
his dog.
At some point Priebe became aware Mugsey was dog
aggressive. She posted a note on his kennel card and the
employee memo board warning of that fact. Priebe also raised
the issue with Dr. Oliphant who suggested she walk Mugsey
before and after clients came in and out of the building, to
minimize contact with other dogs. Priebe also received
instructions from Clusener, her coworker who knew and had
himself walked Mugsey, on how to use the pinch collar and
harness setup to restrain the dog. Thereafter, Priebe walked
Mugsey twice a day for two weeks without incident.
On the morning of September 28, 2000, while taking Mugsey
for his morning walk, Priebe heard a dog barking in the back
of a pickup truck in the parking lot. Mugsey began barking
and becoming agitated. Priebe decided to turn around and
return to the kennel. As she was doing so Mugsey grabbed her
foot, knocking her down while mauling her foot and ankle. It
took several onlookers to subdue the dog and get him to let
go of Priebe’s foot. Priebe was taken by ambulance to a
local hospital. She suffered numerous bites to her foot and
ankle as well as serious nerve injuries that required her to
undergo physical therapy and will cause her pain for the
rest of her life.
Priebe filed suit against Nelson in February 2001,
asserting causes of action for statutory and common law
strict liability, negligence, and tortious
misrepresentation. Initially the trial court permitted
Priebe to proceed on a theory of statutory strict liability
pursuant to section 3342. At the close of evidence, however,
the court reversed itself, concluding that given the nature
of Priebe’s occupation and employment as a kennel worker,
she had, as a matter of law, assumed the risk of being
bitten by dogs boarded at the kennel where she worked. Over
Priebe’s objection, the court denied her request for
instructions on strict liability under section 3342, and
refused her request for instructions on common law strict
liability as well. (BAJI No. 6.66; CACI No. 462.) The case
was submitted to the jury on a negligence theory of
liability. The jury returned a verdict in favor of defendant
Nelson.
Priebe moved for judgment notwithstanding the defense
verdict on her statutory strict liability claim, which
motion was denied. She also made a Page 1119 motion for a
new trial which the trial court granted, concluding that,
“Plaintiff’s counsel was unfairly required to try a case on
one theory [statutory strict liability], which theory was
then disallowed by the court at the close of evidence.”
Nelson appealed from the trial court’s order granting
Priebe a new trial. Priebe in turn appealed from the order
denying her motion for judgment notwithstanding the verdict
on her statutory strict liability cause of action. She
further argued the jury should have been instructed on
common law strict liability in accordance with BAJI No. 6.66
(owning or keeping an animal with vicious propensities).
The Court of Appeal concluded the trial court did not abuse
its discretion in granting Priebe a new trial, a holding
from which Nelson did not seek review. The court went on to
affirm the trial court’s order denying Priebe’s motion for
judgment notwithstanding the verdict on her statutory strict
liability claim, from which holding Priebe sought review.
The Court of Appeal reasoned that the strict liability dog
bite statute (§ 3342) is inapplicable on these facts
by virtue of the veterinarian’s rule, an offshoot of the
“fireman’s rule,” which rules are also sometimes
collectively referred to as “occupational assumption of the
risk.” (See Neighbarger v. Irwin Industries, Inc. (1994) 8
Cal.4th 532, 538 [34 Cal.Rptr.2d 630, 882 P.2d 347]
(Neighbarger) [fireman’s or firefighter’s rule]; Cohen v.
McIntyre (1993) 16 Cal.App.4th 650, 654-655 [20 Cal.Rptr.2d
143] (Cohen) [veterinarian’s rule]; Nelson, supra, 165
Cal.App.3d at pp. 713-715 [veterinarian’s rule applied to
veterinary assistant].) The Court of Appeal concluded the
veterinarian’s rule should logically be extended to
commercial kennel workers such as Priebe who, the court
reasoned, regularly assume the risk of being bitten by dogs
boarded at the kennels where they work as an inherent risk
of their occupation.
The Court of Appeal went on to hold that Priebe was
entitled to an instruction on common law strict liability on
the theory that the owner of a domestic animal who knows or
has reason to know of its vicious propensities is strictly
liable for injuries caused by the animal. (BAJI No. 6.66;
CACI No. 462.)
We granted Priebe’s petition for review, limited to the
question whether the doctrine of primary assumption of the
risk, as embodied in the veterinarian’s rule, bars the
strict liability claim of a kennel worker under the dog bite
statute. Page 1120
DISCUSSION
(1) In Knight v. Jewett (1992) 3 Cal.4th 296 [11
Cal.Rptr.2d 2, 834 P.2d 696] (Knight), we explained that
“[a]s a general rule, persons have a duty to use due care to
avoid injury to others, and may be held liable if their
careless conduct injures another person. (See Civ. Code,
§ 1714.)” (Id. at p. 315; see also Neighbarger,
supra, 8 Cal.4th at p. 538.) The question whether Nelson can
be held liable in tort for the injuries inflicted on Priebe
by his dog while it was boarded at the kennel and under her
care is also primarily one of duty. In particular, we are
concerned with Nelson’s duty of care under the strict
liability dog bite statute. Section 3342 provides, in
pertinent part, “The owner of any dog is liable for the
damages suffered by any person who is bitten by the dog
while in a public place or lawfully in a private place,
including the property of the owner of the dog, regardless
of the former viciousness of the dog or the owner’s
knowledge of such viciousness.” (Id., subd. (a).)
(2) Subdivision (a) of section 3342 has been recognized as
imposing a duty of care on every dog owner to prevent his or
her dog from biting persons in a public place or lawfully in
a private place. (Davis v. Gaschler (1992) 11 Cal.App.4th
1392, 1399 [14 Cal.Rptr.2d 679] (Davis).) Simply put, the
statute is designed “to prevent dogs from becoming a hazard
to the community” (ibid.) by holding dog owners to such a
standard of care, and assigning strict liability for its
breach.
Nelson contends that notwithstanding any duty of care
imposed on him generally or specifically under the dog bite
statute, because he relinquished custody and control of
Mugsey to the Arcata kennel, and because dog bites are an
inherent risk of work at a dog kennel, the doctrine of
primary assumption of risk must be applied to bar Priebe’s
statutory strict liability claim.
(3) The doctrine of assumption of risk, which is generally
applicable in strict liability actions (Lipson, supra, 31
Cal.3d at p. 376; see Daly v. General Motors Corp. (1978) 20
Cal.3d 725, 733 [144 Cal.Rptr. 380, 575 P.2d 1162]), has
long been recognized as a defense to a personal injury
action brought pursuant to the dog bite statute (§
3342) under appropriate facts. (See Gomes v. Byrne (1959) 51
Cal.2d 418, 420 [333 P.2d 754]; Nelson, supra, 165
Cal.App.3d at p. 713, and cases cited.)[fn1] A finding that
the doctrine of primary Page 1121 assumption of risk applies
in any given factual context is, in essence, a
determination, reached as a matter of law, that the
defendant should be excused from the usual duty of care
based on some clear, overriding statutory or public policy.
(Neighbarger, supra, Cal.4th at p. 537; see Rowland v.
Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443
P.2d 561].)
(4) In Knight, supra, 3 Cal.4th 296, we characterized
primary assumption of risk as “those instances in which the
assumption of risk doctrine embodies a legal conclusion that
there is `no duty’ on the part of the defendant to protect
the plaintiff from a particular risk. . . .” (Id. at p.
308.) In primary assumption of risk cases, “the question
whether the defendant owed a legal duty [of care] to protect
the plaintiff from a particular risk of harm does not turn
on the reasonableness or unreasonableness of the plaintiff’s
conduct, but rather on the nature of the activity or sport
in which the defendant is engaged and the relationship of
the defendant and the plaintiff to that activity or sport.”
(Id. at p. 309, italics added.)
In Knight, the plaintiff brought an action for negligence
and assault and battery for injuries she sustained when
defendant knocked her over and stepped on her finger during
an informal touch football game. The trial court granted
summary judgment in favor of the defendant. We affirmed,
observing that defendant did not breach a legal duty of care
owed to plaintiff when he injured her while both were
voluntarily participating in the game because “defendants
generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself.”
(Knight, supra, 3 Cal.4th at p. 315.) Plaintiff’s action was
therefore found barred under the doctrine of primary
assumption of risk. (Id. at p. 321.)
The “venerable fireman’s [or firefighter’s] rule” is
perhaps the most familiar example of the doctrine of primary
assumption of risk. (Walters v. Sloan (1977) 20 Cal.3d 199,
202 [142 Cal.Rptr. 152, 571 P.2d 609] [applying rule to
police officers injured in line of duty].) Although Knight,
supra, 3 Cal.4th 296, involved the assumption of risks
inherent in sports activities, we cited the firefighter’s
rule in that case as another example of a proper application
of the doctrine, observing that, “In addition to the sports
setting, the primary assumption of risk doctrine also comes
into play in the category of cases often described as
involving the `firefighter’s rule.’ [Citation.] In its Page
1122 most classic form, the firefighter’s rule involves the
question whether a person who negligently has started a fire
is liable for an injury sustained by a firefighter who is
summoned to fight the fire; the rule provides that the
person who started the fire is not liable under such
circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d
199, 202.) Although a number of theories have been cited to
support this conclusion, the most persuasive explanation is
that the party who negligently started the fire had no legal
duty to protect the firefighter from the very danger that
the firefighter is employed to confront. (See, e.g., Baker
v. Superior Court (1982) 129 Cal.App.3d 710, 719-721 [181
Cal.Rptr. 311]; Nelson v. Hall (1985) 165 Cal.App.3d 709,
714. See generally 6 Witkin, Summary of Cal. Law (9th ed.
1988) Torts, § 739, pp. 69-70 [discussing rule as one
illustration of duty approach]; Anicet v. Gant
(Fla.Dist.Ct.App. 1991) 580 So.2d 273, 276 [`a person
specifically hired to encounter and combat particular
dangers is owed no independent tort duty by those who have
created those dangers. . . .’].) Because the defendant in
such a case owes no duty to protect the firefighter from
such risks, the firefighter has no cause of action even if
the risk created by the fire was so great that a trier of
fact could find it was unreasonable for the firefighter to
choose to encounter the risk.” (Knight, supra, 3 Cal.4th at
p. 309, fn. 5, italics added.)
(5) The veterinarian’s rule, an offshoot of the
firefighter’s rule, has also been recognized in past
decisions of this court as yet another application of the
doctrine of primary assumption of risk. (Neighbarger, supra,
8 Cal.4th at pp. 544-546; Knight, supra, 3 Cal.4th at p.
309, fn. 5.) The rule, first announced in Nelson, supra, 165
Cal.App.3d 709, “has been held generally to exempt those who
contract with veterinarians to treat their dogs from
liability should the dog bite the veterinarian during
treatment. (See Cohen v. McIntyre (1993) 16 Cal.App.4th 650
[20 Cal.Rptr.2d 143] [veterinarian]; Willenberg v. Superior
Court (1986) 185 Cal.App.3d 185 [229 Cal.Rptr. 625] [same];
Nelson v. Hall (1985) 165 Cal.App.3d 709 [veterinary
assistant].)” (Neighbarger, supra, 8 Cal.4th at pp.
544-545.)
In Nelson, supra, 165 Cal.App.3d 709, the plaintiff, a
veterinary assistant, brought a strict liability action
under the dog bite statute for injuries sustained when she
was bitten while assisting a veterinarian in preparing a dog
for minor surgery at the animal hospital where she worked.
The dog was administered a sedative and lifted onto the
treatment table. The plaintiff was standing alongside the
table waiting for the sedative to take effect, her arms
resting loosely on the dog. She was not restraining him, and
he appeared calm. Without warning, he quickly turned and bit
plaintiff in the face, causing severe injuries. The dog was
known to the veterinary hospital staff as a dog that might
attempt to bite while receiving medical treatment. On at
least one prior occasion, he had attempted to bite his
handlers, and a notation of Page 1123 “careful” was written
on his treatment card, although this fact was not
communicated to the dog’s owners. The hospital also had a
practice of using muzzles on dogs that were known to be
vicious, but no muzzle was used on this occasion. (Id. at
pp. 711-712.) The defendants, who were not aware their dog
had any vicious propensities, contended plaintiff assumed
the risk of injury from dog bites, arguing that strict
liability for their dog’s actions under section 3342
“terminated when they delivered the dog to a qualified
veterinarian and the veterinarian accepted employment.”
(Nelson, supra, 165 Cal.App.3d at p. 711.)
The plaintiff in Nelson, the court observed, was aware of
the risks involved in treating dogs; indeed she herself had
been bitten several times in the past. (Nelson, supra, 165
Cal.App.3d at p. 714.)[fn2] The veterinarian who employed
the plaintiff testified that dog bites are an occupational
hazard in the veterinary profession, and that it cannot be
assumed a normally gentle dog will act gently while
receiving medical treatment. The Nelson court concluded such
a risk “logically extends to those who assist veterinarians
in the treatment of dogs.” (Nelson, supra, 165 Cal.App.3d at
p. 714.) The court concluded further that, “The risk of dog
bites during treatment is a specific known hazard endemic to
the very occupation in which plaintiff voluntarily engaged.
Therefore, in voluntarily engaging in the occupation of
assisting veterinarians in the medical treatment of dogs,
plaintiff assumed the risk of being bitten during the course
of treatment.” (Ibid.)
The Nelson court also addressed the question whether the
dog’s owners could assert primary assumption of risk as a
complete defense to the plaintiff’s statutory strict
liability claim under section 3342. The court undertook a
brief review of the principles underlying the firefighter’s
rule, and concluded, “The same principles apply here. A
veterinarian or a veterinary assistant who accepts
employment for the medical treatment of a dog, aware of the
risk that any dog, regardless of its previous nature, might
bite while being treated, has assumed this risk as part of
his or her occupation. Page 1124 The veterinarian determines
the method of treatment and handling of the dog. He or she
is the person in possession and control of the dog and is in
the best position to take necessary precautions and
protective measures. The dog owner who has no knowledge of
its particular vicious propensities has no control over what
happens to the dog while being treated in a strange
environment and cannot know how the dog will react to
treatment. A dog owner who does no more than turn his or her
dog over to a qualified veterinarian for medical treatment
should not be held strictly liable when the dog bites a
veterinarian or a veterinary assistant while being treated.
[–] Accordingly, we hold that assumption of the risk
is a complete defense to an action by a veterinary assistant
against a dog owner for damages for injuries suffered from
being bitten by the owner’s dog during the course of medical
treatment.” (Nelson, supra, 165 Cal.App.3d at p. 715, fn.
omitted.)
Ever since Nelson, supra, 165 Cal.App.3d 709, was decided,
the doctrine of primary assumption of risk as embodied in
the veterinarian’s rule has been applied in California to
bar recovery in personal injury actions brought under the
dog bite statute by veterinarians and their assistants who
are bitten or injured while treating dogs under their care.
For example, in Cohen, supra, 16 Cal.App.4th 650, the
plaintiff, a county-employed veterinarian, was bitten
several times by a dog brought into his clinic for a
preneutering examination. The Cohen court concluded the case
before it was “a classic situation where a defendant’s
ordinary duty of care is negated due to the nature of the
activity and the relationship of the defendant to the
plaintiff.” (Id. at p. 655, fn. & italics omitted.) The
court explained that, “Cohen, a licensed veterinarian, was
injured during the course of treating an animal under his
control, an activity for which he was employed and
compensated and one in which the risk of being attacked and
bitten is well known.” (Ibid., italics added.)
Similarly, in Willenberg v. Superior Court (1986) 185
Cal.App.3d 185 (Willenberg), decided one year after Nelson,
supra, 165 Cal.App.3d 709, the court applied the
veterinarian’s rule to bar a personal injury claim by a
veterinarian whose shoulder was injured when the dog he was
about to examine suddenly leaped onto him from the
examination table, forcing him to “`wrestle her down.'”
(Willenberg, at p. 186.) Quoting Nelson for the proposition
that “`[I]t is generally accepted in the veterinary
profession that any animal may react strangely or
dangerously while receiving treatment, regardless of its
behavior in the home environment,'” the Willenberg court
found Nelson dispositive on the facts before it, explaining
that, “The point of the Nelson case is that a visit to the
veterinarian’s office can bring about unpredictable behavior
in a normally docile animal, and this is an inherent risk
which every veterinarian assumes.” (Willenberg, supra, 185
Cal.App.3d at pp. 186, 187, fn. omitted.) Page 1125
The Court of Appeal below concluded the doctrine of primary
assumption of risk, as embodied in the veterinarian’s rule,
must likewise be found to bar Priebe’s strict liability
claim under the dog bite statute by virtue of her occupation
as a kennel worker. The court drew an analogy between
veterinarians and their assistants, who routinely risk being
bitten while treating dogs in the unfamiliar environment of
their office or examination room, and kennel workers like
Priebe, who likewise routinely risk being bitten by dogs
under their care in the unfamiliar surroundings of a
boarding kennel.
A number of cases support the Court of Appeal’s conclusion.
In two California decisions discussed by this court in
connection with the veterinarian’s rule in Neighbarger,
supra, 8 Cal.4th 532, the courts were arguably predisposed
to extending the bar to recovery of damages in suits brought
by those other than veterinarians who also cared for or
handled dogs in a professional or commercial capacity, were
it not for the fact that no contract for the services to be
rendered had been entered into before the plaintiffs’
injuries were sustained, thereby precluding application of
an assumption of risk defense. (Davis, supra, 11 Cal.App.4th
at p. 1401 [veterinarian’s rule inapplicable where dog owner
had not contracted for services of plaintiff, an experienced
dog breeder and handler]; Prays v. Perryman (1989) 213
Cal.App.3d 1133, 1137 [262 Cal.Rptr. 180] [veterinarian’s
rule inapplicable where commercial dog groomer had not yet
formally accepted defendant’s dog for grooming or entered
into contractual grooming agreement]; see Neighbarger,
supra, 8 Cal.4th at pp. 545-546.)
Two additional sister-state court decisions have placed
principal reliance on the California Court of Appeal
decision in Nelson, supra, 165 Cal.App.3d 709, concluding
the rationale of Nelson’s veterinarian’s rule barred
personal injury actions under those states’ respective
strict liability dog bite statutes brought by individuals,
other than veterinarians, who had contracted with dog owners
to provide care or other services for their dogs.
In Jordan v. Lusby (Ky.Ct.App. 2002) 81 S.W.3d 523
(Jordan), the Kentucky Court of Appeal placed sole reliance
on Nelson, supra, 16 Cal.App.3d 709, for its conclusion that
a dog groomer who was bitten by a dog she had accepted for
grooming assumed the risk of being bitten by the animal and
was thus barred from suing the dog owner under Kentucky’s
strict liability dog bite statute. (Jordan, at pp. 524-525.)
The Jordan court observed that, “The profession of dog
grooming naturally entails a risk of being bitten by a
client’s dog, as do other professions involving the care of
animals such as kennel owner or veterinarian. Common sense
dictates that a person who grooms dogs must be deemed to be
aware of the risks involved in dealing Page 1126 with any
dog, not just a dog of a particular breed. While, of course,
it makes sense for a groomer to ask questions relating to a
dog’s propensity to bite for reasons of personal safety, it
does not logically follow that a person who is in the
business of grooming or otherwise caring for dogs does not
assume the risk of being bitten by dogs.” (Jordan, supra, 81
S.W.3d at pp. 524-525.)
Similarly, in Reynolds v. Lancaster County Prison (1999)
325 N.J. Super. 298 [739 A.2d 413] (Reynolds), the New
Jersey court placed principal reliance on Nelson, supra, 16
Cal.App.3d 709, holding that the defense of primary
assumption of risk, as embodied in Nelson’s veterinarian’s
rule, barred recovery under New Jersey’s strict liability
dog bite statute by an independent contractor who had been
attacked and seriously injured by a dog he agreed to care
for in connection with his employment as manager of a guard
dog company. In that case, one of the defendants, the
Lancaster County prison, had given one of its dogs, a
134-pound Rottweiler trained as an attack dog for prison
control, to another defendant, Guard Dogs Unlimited, a
private guard dog service company. Although the dog had
bitten prison employees on five separate occasions in the
past, the prison failed to disclose this fact when it turned
the dog over to the guard dog company. Within two months,
the dog attacked and seriously injured the company manager,
an independent contractor. At trial, the jury found the
guard dog company liable for its manager’s injuries under
New Jersey’s strict liability dog bite statute, which is
nearly identical to California’s dog bite statute (§
3342).[fn3] The guard dog company appealed, arguing the
plaintiff had agreed to care for the dog in his capacity as
company manager, and had thereby assumed the risk of being
bitten by the dog. (Reynolds, supra, 739 A.2d at pp.
417-418.) The court was thus “called upon to determine the
duty of a dog owner to an independent contractor who is
bitten while carrying out his contractual obligation to care
for the dog on the owner’s property.” (Id. at p. 426.)
The Reynolds court quoted Nelson, supra, 16 Cal.App.3d 709,
at some length and declared its analysis “sound.” (Reynolds,
supra, 739 A.2d at p. 427.) The court observed that, “In
ordinary circumstances, when a dog is delivered for care to
an independent contractor the owner is entitled to rely on
the doctrine of primary assumption of the risk.” (Ibid.)
Although concluding the doctrine, as embodied in Nelson’s
veterinarian’s rule, barred recovery of damages under New
Jersey’s strict liability dog bite statute, the court went
on to affirm the plaintiff’s judgment on an alternate theory
of liability on which the judgment was also based —
common law negligence — for failure to Page 1127
adequately investigate and warn of the dog’s history of
viciousness under the “peculiar circumstances” of the case.
(Id. at p. 428.)
In two other sister-state decisions, the assumption of risk
defense was specifically extended to bar recovery by a
“kennel attendant” (Lundy v. Stuhr (1987) 185 Ga.App. 72
[363 S.E.2d 343, 344-346] [Georgia common law claim]), and a
volunteer kennel worker (Khamis v. Everson (1993) 88
OhioApp.3d 220 [623 N.E.2d 683, 687] [Ohio statutory strict
liability claim]), for injuries arising from a dog bite or
attack sustained while performing various kennel duties. In
Khamis, the Ohio appellate court explained that Ohio’s
strict liability dog bite statute was “intended to protect
those people who are not in a position to control the dog.”
(Ibid.)[fn4]
In arguing that the doctrine of primary assumption of risk
should not be applied as a bar to her statutory strict
liability claim, Priebe urges us to focus on many of the
facts peculiar to her case. It is undisputed that she was
seriously injured as a result of Mugsey’s attack. She
asserts Nelson’s dog was predisposed to become vicious and
bite or attack people, pointing out that, unbeknownst to
her, the dog had bitten Nelson and another individual in the
past. She alleges Nelson failed to disclose this fact to her
or anyone else at the kennel, suggesting she thus had no
subjective appreciation of the risk she actually faced when
caring for and walking this particular dog. She notes she
had only been working at the kennel for approximately one
month before the attack, and that although she received some
general training as a kennel worker, and some specific
advice from her colleague Clusener on how to harness, walk,
and if need be, restrain Mugsey with his metal-pronged pinch
collar, she received no special training on how to care for
or manage a dog of his vicious and dangerous nature. Page
1128
Many of these facts, if established on retrial, could
become relevant to Priebe’s common law strict liability
claim on the theory that Nelson knowingly harbored a vicious
dog and failed to disclose that fact to her or other Arcata
kennel personnel, thereby exposing them to an unknown risk
of injury well beyond that normally associated with work at
a dog kennel. As noted, the Court of Appeal held that, on
retrial, Priebe will be entitled to pursue her common law
strict liability claim (BAJI No. 6.66; CACI No. 462) denied
her in the first trial, a ruling which has not been
challenged on review.
The precise question here, however, and the only one on
which Priebe sought review, is whether the Court of Appeal
correctly concluded the doctrine of primary assumption of
risk, as embodied in the veterinarian’s rule, serves as a
bar to her strict liability claim against Nelson under the
dog bite statute. (§ 3342). As Knight, supra, 3
Cal.4th 296, teaches, this is a question of law turning
largely on objective factors, such as the relationship
between kennel workers and dog owners with respect to the
activity of caring for and walking dogs boarded at a
commercial kennel pursuant to a boarding agreement, and any
policy reasons favoring or disfavoring recognition of
assumption of risk as a complete defense to a statutory
strict liability action brought by a kennel worker for
injuries sustained while on the job.
We have already considered the legislative intent and
purpose behind California’s strict liability dog bite
statute as it bears on the question whether assumption of
risk should be recognized as a complete defense to a kennel
worker’s claim for damages under its provisions. Priebe
argues section 3342 “represents a fundamental determination
of legal policy by the California Legislature that the risk
of a dog unexpectedly biting a person is to be borne by the
person who has chosen to own that dog and thus create that
risk for society, even when the owner is not at fault in any
way and has no reason to know that the dog is vicious.” We
believe Priebe reads too much into the statute.
We have shown that subdivision (a) of section 3342 has been
held to impose a duty of care on every dog owner to prevent
his or her dog from biting persons in a public place or
lawfully in a private place so as “to prevent dogs from
becoming a hazard to the community.” (Davis, supra, 11
Cal.App.4th at p. 1399.) We see nothing in the language of
the statute to suggest the Legislature ever contemplated or
intended that such a duty of care, and imposition of strict
liability for its breach, should apply in those situations
where the care, custody, and control of a dog has been
entrusted to trained professionals in exchange for
compensation, as is the case when a dog is left with a
veterinarian for medical treatment, or placed in a licensed
commercial kennel for boarding. Page 1129
(6) We agree with the observations of the Court of Appeal
below, that “the business of kenneling is such that the
kennel operators assume the care and handling of dogs
entrusted to their professional care during the absence of
their owners,” and that “[o]nce a dog has been accepted for
kenneling and the owner leaves, the kennel staff are in
charge of the dog, not the owner. They determine the best
way to handle the dog while at the kennel, and what
protective measures, if any, should be taken to ensure
employee safety.” It seems counterintuitive to hold a dog
owner strictly liable to a kennel worker for breach of the
duty of care under section 3342 under circumstances where
the dog owner has completely relinquished the care, custody,
and control of his or her dog to a veterinarian or similar
professional trained to care for and safely handle dogs, and
the dog owner is therefore not in a position to supervise or
prevent any conduct on the part of the dog.
Notwithstanding the general intent and purpose behind
section 3342, we must also ask, is there is any clear public
policy that would justify excusing the specific duty of care
imposed on dog owners under the statute by extending the
veterinarian’s rule as a bar to personal injury suits by
kennel workers injured on the job by dogs left in their
exclusive care and control? The pertinent case law
identifies several relevant public policies.
We have examined the California cases, starting with
Nelson, supra, 165 Cal.App.3d 709, as well as its progeny,
that have applied the veterinarian’s rule in various factual
settings. (E.g., Cohen, supra, 16 Cal.App.4th 650;
Willenberg, supra, 185 Cal.App.3d 185; see Neighbarger,
supra, 8 Cal.4th at pp. 544-546.) We have also examined
several out-of-state decisions that have considered the
rationale for the veterinarian’s rule, including two
decisions that placed express reliance on the Nelson
decision in applying the rule in their states. (Jordan,
supra, 81 S.W.3d 523 [Ky.]; Reynolds, supra, 739 A.2d 413
[N.J.].) And, as we have seen, several intermediate
appellate court decisions, both within and outside of
California, have already seen fit to extend the
veterinarian’s rule to veterinary assistants (Nelson, supra,
165 Cal.App.3d at p. 714); dog groomers (Jordan, supra, 81
S.W.3d at pp. 524-525); and in some instances, to kennel
technicians or kennel workers (Lundy v. Stuhr, supra, 363
S.E.2d at pp. 344-346; Khamis v. Everson, supra, 623 N.E.2d
at p. 687) who are bitten or otherwise injured by a dog left
in their charge and care.
One rationale given in these cases for excusing the dog
owner’s usual duty of care under the veterinarian’s rule
lies in “`the nature of the activity'” that characterizes
the veterinary profession. (Neighbarger, supra, 8 Cal.4th at
p. 545; Cohen, supra, 16 Cal.App.4th at p. 655.) As the
Nelson court Page 1130 explained, “The risk of dog bites
during treatment is a specific known hazard endemic to the
very occupation in which plaintiff voluntarily engaged.
Therefore, in voluntarily engaging in the occupation of
assisting veterinarians in the medical treatment of dogs,
plaintiff assumed the risk of being bitten during the course
of treatment.” (Nelson, supra, 165 Cal.App.3d at p. 714.)
The Nelson court observed further, “A veterinarian or a
veterinary assistant who accepts employment for the medical
treatment of a dog, aware of the risk that any dog,
regardless of its previous nature, might bite while being
treated, has assumed this risk as part of his or her
occupation. The veterinarian determines the method of
treatment and handling of the dog. He or she is the person
in possession and control of the dog and is in the best
position to take necessary precautions and protective
measures.” (Id. at p. 715.)
Hence, one public policy supportive of the veterinarian’s
rule is the commonsense recognition that veterinarians,
their trained assistants, and those in similarly situated
professions (e.g., dog groomers, kennel technicians) are in
the best position, and usually the only position, to take
the necessary safety precautions and protective measures to
avoid being bitten or otherwise injured by a dog left in
their care and control. We believe that same policy reason
supports extension of the veterinarian’s rule to kennel
workers, such as Priebe, who are likewise trained to safely
care for, walk, and handle dogs, and who are in the only
position to look out for their own personal safety when
working with dogs boarded at their kennels in the dog
owners’ absence. From a public policy standpoint, it makes
little sense to hold a dog owner strictly liable for the
routine risk of dog bite injuries suffered by such trained
and paid professionals.
(7) A second rationale given in the case law for excusing
the dog owner’s usual duty of care under the dog bite
statute arises from the special nature of “the relationship
between the defendant and the plaintiff.” (Neighbarger,
supra, 8 Cal.4th at p. 545; see Cohen, supra, 16 Cal.App.4th
at p. 655.) It can be observed that in dog bite cases,
unlike most other tort actions, the very instrumentality
that causes the harm or injury to the plaintiff, i.e., the
dog that bites or attacks, has oftentimes been physically
separated from the custody and control of the supposed
tortfeasor, i.e., the dog’s legal owner, and relinquished to
the care, custody, and control of the plaintiff, most often
pursuant to a contractual agreement providing compensation
for services such as medical care, grooming, or boarding.
That state of affairs arguably leaves little if anything
left to be done on the part of the dog owner to make good on
his specific duty of care under section 3342, once custody
and care of his dog is relinquished to the professional. As
one court put it, “where a person accepts responsibility for
controlling an animal, she cannot maintain a cause of action
for injuries resulting from her own failure to control the
animal.” (Wilcoxen v. Paige (1988) 174 Ill.App.3d 541 [528
N.E.2d 1104, 1106, 124 Ill.Dec. 213].) Page 1131
Hence, a second public policy supportive of the
veterinarian’s rule is the commonsense recognition that
veterinarians, their trained assistants, and those in
similarly situated professions (e.g., dog groomers, kennel
technicians) enter into contractual relationships with dog
owners and receive compensation for the services they
provide, which services, by their very nature and design,
include the safe care and handling of dogs left in their
charge. Here again, we believe that same policy reason
supports extension of the veterinarian’s rule to kennel
workers, such as Priebe, who are also trained to safely walk
and handle dogs left for boarding under their exclusive care
and control, and who are compensated pursuant to a
contractual agreement for providing those very services.
There is yet a another policy reason for extending the
veterinarian’s rule to kennel workers such as Priebe, one
perhaps best articulated by the Louisiana court in Dubois v.
Economy Fire & Cas. Co. (La.Ct.App. 1998) 715 So.2d 131. In
that case, a veterinary technician whose duties included
“care of the kennel” was prevented from recovering for
injuries suffered when a dog she was leading from a dog run
by his collar bit her in the hand. (Id. at p. 132.) The
Louisiana strict liability dog bite statute there at issue
(La.Civ. Code, art. 2321) provided only that “`The owner of
an animal is answerable for the damage caused by the
animal.'” (Dubois v. Economy Fire & Cas. Co., supra, at p.
133, fn. omitted.) Applying the “risk-utility balancing
test” applicable in Louisiana to determine whether the
behavior of the dog “created or represented an unreasonable
risk of harm to Plaintiff” (ibid.), the Louisiana Court of
Appeal affirmed the judgment in favor of the dog’s owners,
concluding that “the likelihood of injury resulting from
such dog-like behavior” and “the gravity of the harm
threatened by the behavior” were outweighed by “the utility
of allowing dog owners to board their pets and have trained
technicians care for the animal while the owner is out of
town.” (Ibid., italics added.)
Extending the veterinarian’s rule as a bar to personal
injury actions by kennel workers who are bitten or injured
by a dog while on the job will therefore further serve the
policy of encouraging dog owners to avail themselves of the
services of licensed commercial dog kennels, without the
threat of liability and lawsuits for injuries caused by
their dogs’ conduct hanging over their heads, conduct they
are in no position to guard against or control once the dog
is surrendered to the kennel for boarding. Encouraging the
use of secure kennel boarding facilities in turn serves the
salutory purpose behind the dog bite statute — that
of protecting members of the public from harm or injury by
dogs not properly under their owners’ control and which they
(the members of the public) themselves are in no position to
control. Page 1132
(8) We therefore conclude that Priebe, by virtue of the
nature of her occupation as a kennel worker, assumed the
risk of being bitten or otherwise injured by the dogs under
her care and control while in the custody of the commercial
kennel where she worked pursuant to a contractual boarding
agreement. The Court of Appeal correctly concluded a strict
liability cause of action under the dog bite statute
(§ 3342) was therefore unavailable to Priebe.
As we have noted, the factual matters of whether Nelson
knew or had reason to know of Mugsey’s vicious propensities,
and whether he adequately warned Priebe or other Arcata
staff members of the fact that his dog had bitten him and
another individual in the past, were contested below. On
retrial, Priebe will have the opportunity to again seek to
establish facts supportive of her common law strict
liability claim against Nelson for knowingly keeping a
domestic animal with vicious propensities. (BAJI No. 6.66;
CACI No. 462.)
CONCLUSION
The judgment of the Court of Appeal is affirmed, and the
matter remanded to that court for further proceedings
consistent with the views expressed herein.
George, C.J., Werdegar, J., Chin, J., Moreno, J., and
Corrigan, J., concurred.