C.A. Rules That Kennel Employee Cannot Rely on Dog Bite Strict Liability Statute

Wednesday, June 9, 2004

Page 3

C.A. Rules That Kennel Employee Cannot Rely on Dog Bite Strict Liability Statute

By a MetNews Staff Writer

A state statute making dog owners strictly liable for injuries caused by their pets does not apply where the dog bit an employee of the kennel caring for it, the First District Court of Appeal ruled yesterday.

Civil Code Sec. 3342, which 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,” does not apply where dog was housed in commercial kennel, Justice Timothy A. Reardon explained.

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,” as a 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.

The case is Priebe v. Nelson, 04 S.O.S. 2870.