Cohen v. McIntyre
20 Cal. Rptr. 2d 143, 93 Daily Journal DAR 7546, 16 Cal. App. 4th 650 (1993)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the doctrine of primary assumption of the risk, a veterinarian treating an animal under their control cannot recover for injuries sustained from the animal's ordinary, inherent risks, because the animal's owner generally owes no legal duty to protect the veterinarian from the very dangers inherent in their occupation, absent intentional concealment, misrepresentation, or reckless conduct.
Facts:
- Warren Cohen, a veterinarian with 16 years of experience, had been bitten twice before while treating dogs.
- On March 17, 1988, Suzanne McIntyre brought her dog, Lobo, to the Contra Costa Veterinary Clinic for a preneutering examination.
- Lobo had bitten three people in the past two years, and McIntyre wanted him neutered because she thought it would 'mellow' him.
- As Cohen bent down to pick Lobo up off the floor, the dog turned and snapped at his left arm.
- Cohen gave McIntyre a muzzle and instructed her to muzzle Lobo before he could proceed, which she did.
- After Cohen completed the examination and placed Lobo back on the floor, he removed the muzzle without seeking assistance from McIntyre.
- As soon as the muzzle was off, Lobo turned and bit Cohen multiple times.
- At no time did Cohen ask for, nor did McIntyre volunteer, any information about Lobo's prior propensity to bite.
Procedural Posture:
- Warren Cohen filed a form complaint for negligence against Suzanne McIntyre and her parents, alleging failure to warn of the dog's vicious propensities and concealment of that information.
- The trial court granted summary judgment in favor of Suzanne McIntyre and her parents.
- The California Court of Appeal, First District, affirmed the trial court's summary judgment.
- The California Supreme Court granted review, holding the case pending the outcome of its decision in Knight v. Jewett.
- The California Supreme Court then retransferred the case to the California Court of Appeal, First District, for reconsideration in light of Knight v. Jewett.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the doctrine of primary assumption of the risk bar a veterinarian from recovering for injuries sustained from a dog bite while treating the animal, even if the owner did not disclose the dog's history of aggression?
Opinions:
Majority - Smith, J.
Yes, the doctrine of primary assumption of the risk bars a veterinarian from recovering for injuries sustained from a dog bite while treating the animal, even if the owner did not disclose the dog's history of aggression, because the owner generally owes no legal duty to protect the veterinarian from the inherent dangers of their profession. The court reaffirmed its previous ruling, concluding that Cohen’s recovery is barred by the doctrine of assumption of the risk, as refined by Knight v. Jewett (1992). Knight distinguished between primary and secondary assumption of risk, holding that primary assumption of risk applies when there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk, focusing on the nature of the activity and the relationship between the parties. The court applied the 'firefighter’s rule' rationale, which Knight identified as a form of primary assumption of risk, extending it to veterinarians based on Nelson v. Hall (1985). Nelson established a 'veterinarian’s rule,' stating that the risk of dog bites during treatment is an occupational hazard veterinarians accept and are best equipped to guard against. Cohen, as a licensed veterinarian injured during treatment, encountered a well-known risk of his employment. McIntyre's failure to volunteer information about Lobo’s past was not considered intentional concealment or reckless conduct, especially since Lobo had already displayed aggressive behavior, prompting Cohen to insist on muzzling. The court found that Cohen's subjective knowledge of the risk's magnitude was irrelevant under Knight, which focuses on the defendant's duty of care. The exceptions for misrepresentation or altering the nature of the hazard, as seen in Lipson v. Superior Court (1982) and Von Beltz v. Stuntman, Inc. (1989), did not apply because McIntyre did not significantly alter the risk; rather, Cohen himself removed the muzzle, exposing himself to the known danger. The court emphasized that the determination of duty in assumption of risk cases is a legal question for the court, not a factual one for a jury.
Analysis:
This case clarifies the application of primary assumption of the risk in occupational settings following Knight v. Jewett, specifically extending the 'firefighter's rule' to veterinarians. It establishes that professionals who voluntarily engage in activities with inherent, known risks generally cannot sue clients for injuries resulting from those risks, even if the client fails to disclose information that might increase the perceived magnitude of the risk. The decision solidifies that the determination of duty is a legal question, making such cases more amenable to summary judgment and limiting the role of a jury. Future cases involving occupational hazards where plaintiffs are expected to confront certain risks will likely rely on this framework to deny liability unless there is evidence of intentional or reckless misconduct that fundamentally alters the nature of the risk.
