Metropolitan News-Enterprise


Thursday, September 16, 2004


Page 3


S.C. to Decide if Owner Strictly Liable for Dog Biting Kennel Employee


By a MetNews Staff Writer


The California Supreme Court agreed to decide yesterday whether a state statute making dog owners strictly liable for injuries caused by their pets applies where the dog bit an employee of the kennel caring for it.

The justices, at their weekly conference in San Francisco, unanimously agreed to review the June 8 decision of the First District Court of Appeal’s Div. Four in Priebe v. Nelson, 119 C.A.4th 235.

The Court of Appeal panel, in an opinion by Justice Timothy A. Reardon, held that Civil Code Sec. 3342 does not apply where a dog was housed in a commercial kennel.

The statute provides that a dog owner 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.”

Marta Priebe, a kennel technician at the Arcata Animal Hospital, sued Russell Nelson after she was bitten by Nelson’s 75-pound Staffordshire terrier Mugsey. Mugsey was left in Arcata’s care while Nelson underwent surgery.

 Priebe was bitten while walking Mugsey in the Arcata parking lot. The case was tried on the theory that Sec. 3342 applied, but Humboldt Superior Court Judge J. Michael Brown changed his mind after the close of evidence.

The jury found for Nelson, but Brown granted a new trial, ruling that he had “unfairly” required the plaintiff to try the case on a theory that was ultimately disallowed. Reardon, writing for Div. Four, said Brown was right to change his mind about the applicability of Sec. 3342 and also right to grant a new trial.

“The absolute language of section 3342 does not foreclose a defense of occupational assumption of the risk and when it applies, the defense is complete,” Reardon declared. Under that doctrine, commonly called the “firefighter’s rule,” kennel employee Priebe assumed the risk that Mugsey might bite her, the justice said.

“Once a dog has been accepted for kenneling and the owner leaves, the kennel staff are in charge of the dog, not the owner,” Reardon observed. “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. There is a risk of being bitten that is inherent in handling dogs.”

The situation is analogous to that of a dog being treated in a veterinary clinic, in which the firefighter’s rule was held to apply in Nelson v. Hall (1985) 165 Cal.App.3d 709, Reardon said.

“Just as a visit to a veterinarian office can spur unpredictable behavior in any dog, so, too, common sense tells us that being kenneled can trigger unpredictable behavior,” Reardon reasoned. “In both situations the dog is in unfamiliar surroundings with unfamiliar persons, but with new stimuli and new routines. Thus, whether the bite victim is a handler, veterinarian or veterinary assistant and whether that person is treating the dog, walking the dog or feeding it, the risk of acting out is roughly equivalent.”

Brown erred, however, in refusing Priebe’s request for a jury instruction based on BAJI No. 6.66, informing jurors that Nelson could be held strictly liable if Mugsey had known vicious propensities, Reardon said.

“Where BAJI No. 6.66 applies, there would be no occupational assumption of the risk because a domestic animal is presumed not to have vicious tendencies,” Reardon explained, adding:

“Indeed, Nelson indicated that a dog owner would not be relieved of liability for injuries to a veterinarian or veterinary assistant where the owner conceals knowledge of the dog’s vicious propensity.”

Mugsey had previously bitten Nelson and another man, sending both to the hospital, Reardon said. That was enough to justify the instruction, he concluded.

“Whether these attacks signaled a vicious propensity, and whether Nelson fully disclosed these incidents to Arcata, were matters for the jury to decide,” he asserted.

In other conference action, the court:

•Agreed to resolve a conflict within the Court of Appeal as to whether the procedural safeguards requiring appellate courts to independently review the record before appointed counsel may withdraw from a criminal appeal that counsel believes meritless apply to conservatorship appeals as well. The Fourth District’s Div. One held in its June 18 opinion in Conservatorship of Ben C. that independent review is not required, contrary to Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675.

•Limited to a single issue its previous grant of review in Siebel v. Mittlesteadt, 118 Cal.App.4th 406. The Sixth District panel overturned a summary judgment that had been granted to Northern California attorneys Carol L. Mittlesteadt and E. Rick Buell II in a malicious prosecution action brought by Thomas Siebel, chief executive officer of Siebel Systems, Inc.

Siebel sued the attorneys based on their representation of a former Siebel Systems employee, contending, among other things, that the sex discrimination/wrongful termination suit was baseless and frivolous because the corporation, not Siebel, was the plaintiff’s employer.

One of the arguments made by the attorneys in support of summary judgment was that they could not defend the suit because they would have to disclose privileged information. That issue was an evidentiary matter and not an appropriate subject for summary judgment, the Court of Appeal held.

The high court granted review two weeks ago. But yesterday the justices said that the sole issue to be briefed and argued is “[w]hether a post-judgment settlement agreement revising a damages award and providing for the parties to withdraw their appeals but not providing for an amended judgment and expressly preserving the defendant’s right to bring a malicious prosecution action precludes a finding of favorable termination in that defendant’s subsequent malicious prosecution action.”


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