Priebe v. Nelson
47 Cal. Rptr. 3d 553, 39 Cal.4th 1112, 140 P.3d 848 (2006)
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Rule of Law:
The doctrine of primary assumption of risk, as embodied in the veterinarian's rule, bars a commercial kennel worker's strict liability claim under California Civil Code section 3342 when injured by a dog boarded at the kennel, because such workers assume the inherent risks of their occupation once custody and control are relinquished by the owner.
Facts:
- In the fall of 2000, Russell Nelson was scheduled for surgery and sought to board his 75-pound Staffordshire terrier, Mugsey, at a kennel.
- Mugsey was "dog aggressive" and had previously gotten into fights with other dogs, and on one occasion a year earlier, had bitten Nelson and another dog owner after they separated their fighting dogs, requiring Nelson to get stitches.
- At least one kennel refused to accept Mugsey for boarding due to his dog-aggressive behavior.
- Nelson then spoke with Peter Clusener, an acquaintance who worked at Arcata Animal Hospital, and was informed that Mugsey could be boarded there, despite Clusener knowing Mugsey was dog aggressive.
- Nelson testified he told someone at Arcata during a visit that Mugsey had once bitten him on the arm, but he failed to mention this on September 14, 2000, the day he dropped Mugsey off for boarding; the receptionist did not recall him mentioning this or the dog's aggression.
- On September 14, 2000, Nelson dropped Mugsey off at the kennel, informing Marta Priebe, a kennel worker, that Mugsey needed to be walked with his metal-pronged pinch collar and that "if anyone hurt Mugsey[,] that he may hurt them, and that if someone kicked Mugsey, that he may bite them."
- On the morning of September 28, 2000, while Priebe was taking Mugsey for a walk, the dog became agitated by another barking dog in a pickup truck in the parking lot.
- As Priebe turned to return to the kennel, Mugsey grabbed her foot, knocked her down, and mauled her foot and ankle, causing serious nerve injuries that required physical therapy and will cause pain for life.
Procedural Posture:
- Marta Priebe filed suit against Russell Nelson in February 2001, asserting causes of action for statutory strict liability under Civil Code section 3342, common law strict liability, negligence, and tortious misrepresentation.
- The trial court initially permitted Priebe to proceed on a theory of statutory strict liability, but at the close of evidence, reversed its decision, concluding that Priebe had assumed the risk as a matter of law due to her occupation as a kennel worker.
- The trial court denied Priebe's request for jury instructions on statutory and common law strict liability, submitting the case to the jury solely on a negligence theory of liability.
- The jury returned a verdict in favor of defendant Nelson.
- Priebe moved for judgment notwithstanding the defense verdict on her statutory strict liability claim, which the trial court denied.
- Priebe also moved for a new trial, which the trial court granted, concluding that Priebe's counsel was "unfairly required to try a case on one theory [statutory strict liability], which theory was then disallowed by the court at the close of evidence."
- Nelson appealed from the trial court’s order granting Priebe a new trial.
- Priebe, in turn, appealed from the order denying her motion for judgment notwithstanding the verdict on her statutory strict liability cause of action, and further argued the jury should have been instructed on common law strict liability.
- The Court of Appeal concluded the trial court did not abuse its discretion in granting Priebe a new trial (Nelson did not seek review of this holding).
- The Court of Appeal affirmed the trial court’s order denying Priebe’s motion for judgment notwithstanding the verdict on her statutory strict liability claim, from which holding Priebe sought review.
- The Court of Appeal reasoned that the strict liability dog bite statute (§ 3342) was inapplicable on these facts by virtue of the veterinarian’s rule, extended to commercial kennel workers.
- The Court of Appeal also held that Priebe was entitled to an instruction on common law strict liability on retrial.
- Priebe petitioned the California Supreme Court for review, limited to the question of whether the doctrine of primary assumption of the risk, as embodied in the veterinarian’s rule, bars the strict liability claim of a kennel worker under the dog bite statute.
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Issue:
Does the doctrine of primary assumption of risk, specifically the veterinarian's rule, bar a commercial kennel worker's strict liability claim against a dog owner under Civil Code section 3342 for injuries sustained from a dog bite while caring for the owner's dog boarded at the kennel?
Opinions:
Majority - Baxter, J.
Yes, the doctrine of primary assumption of risk, as embodied in the veterinarian's rule, bars a commercial kennel worker's strict liability claim under Civil Code section 3342 for injuries sustained from a dog bite while caring for the owner's dog boarded at the kennel. The court affirmed the Court of Appeal's judgment, finding its analysis sound. Under the primary assumption of risk doctrine, a defendant generally has no legal duty to protect the plaintiff from particular risks inherent in an activity when the nature of the activity and the relationship between the parties justify excusing the usual duty of care. The "veterinarian's rule," an offshoot of the "firefighter's rule" and established in cases like Nelson v. Hall, exempts dog owners from liability for bites to veterinarians or their assistants during treatment because dog bites are an inherent, known hazard of their profession. The court extended this rule to commercial kennel workers like Priebe, identifying three public policy reasons: 1) Kennel workers, like veterinarians, are trained professionals who are in the best position to take safety precautions and control the dog once custody is relinquished by the owner. 2) The contractual relationship for services, including safe handling, shifts responsibility. 3) Encouraging dog owners to use licensed kennels promotes public safety by keeping dogs under professional care without the threat of strict liability for conduct the owner cannot control once the dog is surrendered. The court clarified that while statutory strict liability is barred, Priebe might still pursue a common law strict liability claim on retrial if Nelson knew or should have known of Mugsey's vicious propensities and failed to disclose them, as this would expose Priebe to an unknown risk not assumed as part of her occupation.
Dissenting - Kennard, J.
No, the doctrine of primary assumption of risk, as embodied in the veterinarian's rule, should not bar a commercial kennel worker's strict liability claim against a dog owner under Civil Code section 3342. Justice Kennard argued that the majority usurped legislative authority by creating a nonstatutory exception to a statutorily mandated liability. Civil Code section 3342 is unambiguous, holding dog owners strictly liable for bites regardless of prior viciousness, with only specific legislative exceptions for military or police dogs. The dissent contended that the common law defense of assumption of risk that existed when the statute was enacted is entirely different from the modern "primary assumption of risk" doctrine, which is a categorical limitation on duty. Therefore, there is no reason to infer the Legislature intended this modern doctrine to apply. The justifications for the firefighter's rule (e.g., inherent negligence, special compensation, public fisc, pointless litigation) do not apply to kennel workers. Similarly, the veterinarian's rule's justification (risk during medical treatment) does not apply to routine boarding care where dogs are not undergoing medical treatment, and kennel workers may not receive the same special training as veterinarians. The dissent asserted that the majority's reliance on public policy justifications is inappropriate for amending a clear statute, as declaring public policy is a legislative function. The court's role is to enforce the statute as written, which is intended to provide compensation to dog bite victims and incentivize owners to minimize bite risks.
Analysis:
This case significantly extends the "veterinarian's rule," an application of primary assumption of risk, beyond medical professionals to commercial kennel workers. It underscores the court's willingness to interpret statutory strict liability through the lens of common law duty principles, particularly where a professional relationship exists and the injured party is compensated for confronting inherent risks. The ruling limits the broad reach of California's dog bite statute (§ 3342) for certain occupational plaintiffs, effectively shifting the risk burden in such contexts. Future cases may explore the boundaries of this extension to other animal care professions or contractual relationships where a party voluntarily assumes control of an animal. It also highlights the continued importance of common law strict liability claims where an owner's knowledge of a dog's vicious propensities and failure to disclose creates an unknown risk not assumed by the professional.
