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Dog-Groomer Has No Cause of Action Based on Being Bitten by Husky, C.A. Declares
Justices Say ‘Veterinarian Rule,’ Based on Assumption-of-Risk Doctrine, Applies, Rejecting Contention That Facts Show an Exception Might Come Into Play
By a MetNews Staff Writer
A dog-groomer who was bitten by a Husky while giving him a pedicure had assumed the risk of such an injury, Div. Five of the First District Court of Appeal has held in affirming a summary judgment for the defendant, rejecting the contention that triable issues of fact exist as to whether an exception to the “veterinarian’s rule” applies.
The unpublished opinion, filed Monday, affirms a judgment by Sonoma Superior Court Judge Patrick M. Broderick, who pointed out:
“Dog bites are a known risk to dog groomers. Plaintiff herself was bitten twice on the job.”
Authoring Monday’s opinion was Justice Gordon B. Burns, who noted that “[t]he veterinarian’s rule is a well-established application of the doctrine of primary assumption of risk.”
That rule, he said, prevails over the general dog-bite statute, Civil Code §3342(a), under which “[t]he 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.”
Plaintiff’s Contention
Plaintiff Vanessa Garretson, who was bitten by defendant Daisy Murrillo’s dog, Tahoe, acknowledged that the veterinarian’s rule extends to dog groomers, such as she, but disagreed with Broderick that it necessarily pertains in her lawsuit, asserting in her brief on appeal:
“The trial court erred in concluding that the Veterinarian’s Rule bars Plaintiff’s claims against Murillo as a matter of law and in granting Murillo’s motion for summary judgment on that basis. California courts recognize an exception to the Veterinarians Rule where a dog owner knows or should know of the dog’s vicious propensities and fails to adequately warn of such facts….When the evidence and all inferences reasonably drawn therefrom are viewed in the light most favorable to Plaintiff, a trier of fact could reasonably conclude that this exception applies here.”
Tahoe was delivered by a man to the PetSmart outlet in Petaluma where Garretson worked. Garretson attached to the dog’s head not only a standard loop to prevent biting but also an additional safety harness, doing so in response to a warning by the man that Tahoe does not “like his feet being messed with.”
Argument on Appeal
Garretson argued:
“The mere fact that this statement was made supports the reasonable inference that on one or more prior occasions, Tahoe bit or showed aggression toward someone who touched his paws, and Tahoe’s owner knew about this reaction. Lending further support to this inference is the fact that a nail trimming was the only grooming service Tahoe was to receive that day….A trier of fact could reasonably infer that Tahoe’s owner chose not to trim his nails at home precisely because she knew he might bite her. The trial court thus erred in concluding that ‘Plaintiff has not presented any facts that Tahoe’s owner knew Tahoe might bite while having his nails clipped,’ and in granting summary judgment on this basis.”
The appellant continued that the statement as to Tahoe’s dislike of his paws being “messed with” was an inadequate warning of his propensities as it could be construed merely as a forewarning that he would tend to “make the nail trimming more difficult by higgling, squirming, or pulling his paws away.” Garretson added:
“Alternatively (or in addition), he might protest the nail trimming by howling—a common behavior for the Husky breed.”
Those possibilities, she contended, create triable issues of fact.
Burn’s Opinion
Rejecting the contentions, Burns echoed the trial judge’s reasoning in saying:
“Contrary to her assertion, Garretson failed to present any direct or circumstantial evidence that Tahoe had bit anyone before or otherwise acted aggressively. The fact that the unknown man who delivered Tahoe for his appointment said that Tahoe ‘did not like his feet being messed with’ does not fill the void. We cannot reasonably infer from the statement (without more) that the unknown man had any knowledge of aggressive behavior, much less that Murrillo possessed such actual knowledge or should have known such facts.”
The case is Garretson v. Murrillo, A171205.
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