No Assumption of Risk Where Defendant Breached Ordinance

Tuesday, July 21, 2020

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Court of Appeal:

No Assumption of Risk Where Defendant Breached Ordinance

Opinion Says Woman May Maintain Action Against Owner of Dog That Might Have Knocked Her Over In Leashless Dog Park Because Defendant Breached Ordinance Requiring Control of Pet

By a MetNews Staff Writer

A woman who, while in a leashless dog park, apparently collided with the defendant’s dog, falling to the ground and sustaining injuries, is not barred from recovering damages, the First District Court of Appeal has held, because the defendant was in violation of an ordinance requiring that a person be in control of his or her pet while in such an area.

Div. Two, in an opinion by Justice Alison M. Tucher filed Friday, reversed a summary judgment granted in favor of defendant Alexander Weber by Contra Costa Superior Court Judge Steven K. Austin.

That judgment came in a case in which plaintiff Diane Wolf sued Weber alleging that his Argentinian Mastiff/Boxer mix, Luigi, was socializing with her dog, Maury; she was afraid of dogs of certain breeds and evinced her fear of Luigi; Luigi did not immediately come when so directed by Weber but did head back to him; yet, the two dogs tumbled when Luigi headed back and Wolf bore an impact.

In rejecting, in light of the Park District ordinance, the trial judge’s view that the defense of assumption of the risk was established, Tucher did not point to any evidence in the record that Wolf actually knew of that ordinance and relied upon it when entering the leashless Tilden Regional Park, in the Bay Area. Rather, the opinion apparently establishes a new rule that the defense of assumption of the risk is precluded where a defendant is in breach of some legal proscription, irrespective of what particular risks a plaintiff, unaware of any such breach, might reasonably have expected to confront.

Trial Court Ruling

In his March 7, 2019, ruling granting summary judgment, Austin said:

“[T]he undisputed material facts establish that the incident occurred while Plaintiff was voluntarily participating in a recreational activity—hiking in a regional park with her dog off leash on leash optional trails. Defendant had no duty to protect Plaintiff from a dog or multiple dogs bumping into her because such risk was inherent in the activity itself. Further, there is no evidence that Defendant did anything to unreasonably increase the risk of injury over and above that inherent in this recreational activity.”

To the contrary, Tucher declared, the defense of assumption of the risk is unavailable to Weber because he was in violation of a park district ordinance providing that “the owner or handler” of a dog “shall…keep the dog under control at all times.”

In light of the “duties and expectations this ordinance establishes,” Tucher wrote, “we cannot conclude that being knocked over by an unleashed dog with which a person has sought no interaction is an inherent risk of walking in this portion of Tilden Park,” adding:

“We hold that Wolf’s claim does not fall within the ambit of primary assumption of risk.”

Finds Precedent Inapposite

She said the situation was unlike that present in the 2009 case of Levinson v. Owens

, cited by Weber. There, summary judgment for the defendant was upheld where a social guest sued after falling from a horse the host allowed her to ride.

Then-Third District Presiding Justice Arthur G. Scotland, now of counsel to a Sacramento law firm, wrote:

“Simply stated, when the social guest asked her social hosts to allow her to ride one of their horses on their cattle ranch, and she professed to have the experience to do so, she ‘bit off more than she could chew’ and has only herself to blame for her inability to control a horse that behaved as a horse when it uncharacteristically galloped off.”

Tucher commented:

“The same cannot be said here, where dogs may be off leash only if they are under their owners’ control, and Wolf did not ask to interact with Weber’s dog.”

(One of the lawyers for the prevailing party in Levinson was Mark G. Bonino, one of the attorneys on appeal for Weber.)

Supreme Court Decision

Weber also cited the California Supreme Court’s 2006 decision in Priebe v. Nelson. The defense of assumption of the risk was held, in a 6-1 decision, to bar a kennel worker’s claim under a strict-liability dog-bite statute.

Justice Marvin Baxter (now retired) wrote for the majority in saying that the plaintiff “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.”

Differentiating that case, Tucker observed:

“Since Wolf was not employed to care for Luigi, Priebe does not assist defendant.”

Mixed Signals

Underlying the discussion in Tucher’s opinion—except in one paragraph—is the premise that Weber was in breach of the ordinance. She set forth at the outset of her opinion that “primary assumption of risk does not apply to the circumstances before us” and proceeded to say that “that the primary assumption of risk doctrine does not apply.”

However, in one paragraph, Tucher left open the possibility that assumption of the risk would apply: should Weber be able to establish, as he claims, that he was, in fact, in control of Luigi. While pointing to that possibility, Tucher expressed pessimism that Weber would succeed in such an effort, saying:

“Weber was unaware that Luigi had run toward Wolf’s party until the dog was 20 to 30 yards away and Wolf called out in fear, and Luigi did not initially respond to Weber’s commands to sit and to return to him. There is evidence that Luigi collided with Wolf, causing her injuries, and no evidence to establish that she invited the interaction. On this record, there is at least a triable issue of fact whether Luigi was under Weber’s control.”

Austin ’s View

Austin , by contrast, made a finding that Luigi was under Weber’s control. He recited:

“ Neither Plaintiff nor her husband have any knowledge of how she came to fall. The two other eye witnesses, Defendant and Professor [Martin] Cenek [a colleague of Wolf’s husband] testified that Luigi was lagging behind on their way to the parking lot. Both turned around to see Luigi heading back up the trail to greet Plaintiff’s dog, and both realized that Plaintiff was afraid of Luigi. After a failed attempt to get Luigi to ‘sit,’ Defendant called Luigi back to him. Luigi promptly complied (even if Defendant had to call his name twice), jumping over Plaintiffs dog (or perhaps Plaintiff’s dog just got in the way since Defendant testified that Luigi was ‘intercepted’ by Plaintiffs dog). Either way, Luigi also fell in his rush to return to his owner and rolled over, possibly rolling into Plaintiff’s ‘lower extremities.’ ”

From this, the judge reasoned:

“There is no triable issue of fact that Luigi was ‘out of control’ or not under the supervision and control of his owner.”

Austin continued:

“Defendant knew where his dog was at all times, even if it was ‘trailing behind him’ and was attentive to his dog. He came after Luigi when he saw him heading back up the trail to meet Plaintiff’s dog. Defendant also evaluated the situation: Plaintiff was ‘petrified’ of Luigi, without any apparent cause from Luigi’s action; yet took immediate steps to control Luigi, which resulted in his prompt (yet apparently chaotic) return to his owner.”

Public Policy

Austin and Tucher were also in disagreement on a matter of public policy. The Contra Costa judge said:

“Most importantly, the inherent risk of this type of injury—being bumped by a dog running back to its owner or tumbling over another dog - cannot be eliminated without altering the fundamental nature of the activity. As a policy matter, if liability were imposed on Defendant, there may well be a chilling effect on the use and further creation of “off leash” dog areas. Hikers and dog owners would no longer be allowed to let their dogs socialize and play on the trail. The trails would no longer serve as a haven for dogs and their owners and would no longer be a safe space to allow dogs to run and let out their energy, under the supervision of their owners.”

Tucker countered:

“Most importantly, we are unpersuaded by Weber’s contention that imposing liability here would alter the fundamental nature of off-leash hiking and chill vigorous participation by those engaged in the activity. Controlling one’s dog is part of the ‘fundamental nature’ of hiking on leash-optional trails in Tilden Park. Those who wish to enjoy having their dogs ‘run at large’ and ‘play chase with other dogs’ may do so, subject to Park District rules….Those unable or unwilling to control their dogs may not let them loose in this area of the park.”

The case is Wolf v. Weber, 2010 S.O.S. 3667.