Metropolitan News-Enterprise


Tuesday, August 29, 2006


Page 1


S.C.—Dog Bite Statute Does Not Apply to Kennel Workers


By TINA BAY, Staff Writer


Kennel workers bitten by a dog in their care may not sue its owner under the state’s dog-bite statute, the Supreme Court ruled yesterday in a 6-1 decision.

Affirming a ruling by Div. Four of the First District Court of Appeal, the justices concluded that kennel workers assume the risk of being bitten as part of their profession, and are therefore barred from bringing a strict liability claim under Civil Code Sec. 3342.

Sec. 3342(a), also known as the dog-bite statute, holds dog owners liable for damages suffered by anyone who is bitten by their dog while in a public place, regardless of the dog’s former viciousness or the owner’s knowledge of such viciousness.

Justice Marvin R. Baxter, writing for the majority, said that nothing in Sec. 3342 suggests the Legislature intended for strict liability to apply where a dog’s owner entrusts his dog to trained professionals in exchange for compensation.

“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,” he wrote.

Public Policy

Moreover, he explained, the court’s holding is supported by public policy, such as the “common sense recognition” that veterinarians and kennel workers are in the best and usually only position to take precautions and protective measures to avoid being bitten by a dog left in their care and control.

The high court’s ruling stems from a 2001 suit by former commercial kennel worker Marta Priebe against Russell Nelson over injuries she received while caring for his 75-pound pit bull, “Mugsey,” at Arcata Animal Hospital.

As a “kennel technician” for the hospital, Priebe’s training included the basics of dog walking, properly putting a leash and collar on a dog, and greeting the animal. She cared for boarders among other varied duties assisting the veterinarians and technicians.

When Nelson dropped off Mugsey at Arcata in September 2000, he allegedly did not tell hospital staff his dog had previously bitten him and another dog owner while the two men were pulling their dogs apart to prevent a fight. Nelson told Priebe only that Mugsey needed to be walked with his metal-pronged pinch collar and that he might hurt or bite anyone who hurt or kicked him.

In the course of her work, Priebe discovered that Mugsey was dog aggressive, so she took precautionary measures to minimize his contact with other dogs. After walking with Priebe twice a day for two weeks without incident, Mugsey on one morning walk attacked her—knocking her down and mauling her foot and ankle—after becoming agitated by a barking dog.

Priebe, who had tried to turn around and return to the kennel after seeing Mugsey’s agitation, suffered permanent and serious nerve damage from Mugsey’s bites. Nelson subsequently had Mugsey put to sleep. 

 Priebe asserted causes of action against Nelson for statutory and common law strict liability, negligence and tortious misrepresentation.

Humboldt Superior Court Judge J. Michael Brown barred Priebe from proceeding on a strict liability theory pursuant to Sec. 3342, concluding that she had assumed the risk of being bitten by dogs boarded at the kennel where she worked.

After the jury returned a verdict in favor of Nelson, Brown granted Priebe’s new trial motion but denied her motion for a judgment notwithstanding the verdict on her strict liability claim.

‘Veterinarian’s Rule’

In upholding Brown’s decision, the Court of Appeal extended the “veterinarian’s rule,” announced in Nelson v. Hall (1985) 165 Cal.App.3d 709, which holds that veterinarians by virtue of their occupation assume the risk of being bitten dogs they are treating.

The high court agreed that doctrine of primary assumption of risk, as embodied in the veterinarian’s rule, extended to Priebe’s strict liability claim—rendering factual matters concerning whether Nelson knew or had reason to know of Mugsey’s vicious propensities irrelevant.

However, Baxter noted, such facts could be relevant to Priebe’s common law strict liability claim against Nelson for knowingly keeping a domestic animal with vicious propensities.

In a dissenting opinion, Justices Joyce L. Kennard charged the majority with usurping the Legislature’s authority by creating an exception for dog bite injuries to kennel workers. The majority’s ruling, she said, amounted to improper judicial amendment of a statute that neither articulates nor otherwise intends such an exception.

“[T]his court’s views on public policy do not authorize it to amend statutes, or to decline to enforce them according to their plain meaning,” she said.

 Susan M. Popik, who represented Nelson on appeal, said the majority’s decision was consistent with its prior cases addressing assumption of the risk in occupations, and was “fair.”

“It is a fair result that the dog owner is not strictly liable for injures that are inflicted on professional animal care workers to whom he or she has entrusted the care of the dog, since they are the only ones who are in a position to influence the dog’s behavior,” she said, echoing the majority’s reasoning.

Oakland attorney W. Ruel Walker, one of Priebe’s appellate counsel, told the MetNews he was disappointed by the majority’s analysis.

“The veterinarian’s rule was created well before the doctrine of primary assumption of the risk was created,” he said. “The court simply extended the veterinarian’s rule without putting it in terms of general applicability under the broader doctrine of primary assumption of the risk.”

Walker added:

“Most people who walk dogs would tell you that they’re not thinking in terms of the dogs they’re walking turning and attacking them. And most owners who hire people to walk dogs for them would not say they’re doing it to have a risk taken care of by someone else.”

The case is Priebe v. Nelson, 06 S.O.S. 4549.


Copyright 2006, Metropolitan News Company