Lead Opinion
Plaintiff Marta Priebe, a commercial kennel worker, brought this action against defendant Russell Nelson for personal injuries suffered when she was bitten and seriously injured by Nelson’s dog while it was boarded at the kennel that employed her. Priebe appealed from the trial court’s order denying her motion for judgment notwithstanding the defense verdict, arguing a directed verdict should have been entered in her favor on her strict liability claim brought under Civil Code section 3342 (section 3342), commonly referred to as the “dog bite statute.” Section 3342 makes the owner of any dog “liable for the damages suffered by any person who is bitten by the dog . . . regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” (§ 3342, subd. (a).)
Nelson countered that the so-called veterinarian’s rule absolved him of any potential liability for injuries inflicted on Priebe by his dog while it was boarded at the kennel. Under that rule, which is a recognized application of the doctrine of primary assumption of risk, a dog owner who contracts with a veterinarian to treat his or her dog is generally exempt from liability should the dog bite or injure the veterinarian or veterinarian’s assistant during such medical treatment. (See Nelson v. Hall (1985)
The narrow question presented here is whether the veterinarian’s rule should likewise bar a kennel worker’s strict liability claim against a dog owner under section 3342 for injuries sustained from a dog bite or attack while the worker was caring for the owner’s dog boarded at the kennel. The Court of Appeal concluded the doctrine should apply, finding Priebe assumed the risk of being bitten by dogs boarded at the kennel by virtue of the nature of her occupation as a kennel worker. We find the Court of Appeal’s analysis sound and shall affirm its judgment.
Our holding with regard to the dog bite statute does not, however, mark the end of the road for plaintiff. A common law strict liability cause of action may also be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal’s vicious propensities. (BAJI No. 6.66; see also Judicial Council of Cal. Civ. Jury Instas. (2003-2004) CACI No. 462.) If Nelson knew or should have known of his dog’s vicious propensities and failed to inform Priebe of such facts, he could be found to have exposed Priebe to an unknown risk and thereby be held strictly liable at common law for her injuries. (See Lipson v. Superior Court
Whether Nelson knew or had reason to know his dog had vicious propensities, and if so, whether he adequately communicated that fact to Priebe or others at the kennel when the dog was surrendered for boarding, were matters sharply contested at trial. The Court of Appeal recognized the distinction between the elements of Priebe’s statutory strict liability claim under section 3342, and her remaining common law claims, affirming the trial court’s order granting her a new trial on those latter claims. Since that aspect of the Court of Appeal’s holding has not been directly challenged on review, Priebe will be afforded an opportunity to pursue those common law claims on retrial.
Facts and Procedural Background
In the fall of 2000, defendant Russell Nelson was scheduled for out-of-town surgery and boarded “Mugsey,” his 75-pound Staffordshire terrier, also known as a pit bull, at a kennel while he was away. Mugsey was “dog aggressive” and had gotten into fights with other dogs in the past. On one occasion a year earlier, Mugsey had also bitten Nelson and another dog owner moments after the two men pulled their dogs apart to avoid a fight. Nelson required several stitches in his hand as a result of the incident.
At least one kennel would not accept Mugsey for boarding when Nelson informed them the dog was hard to control around other dogs. Nelson then spoke with Peter Clusener, an acquaintance who worked at the Areata Animal Hospital (Areata), a small veterinary hospital with a kennel connected to the facility at which dogs are accepted for boarding even when no medical treatment is required. Clusener was familiar with Mugsey and knew him to be dog aggressive. He checked with the Areata veterinarian staff and informed Nelson that Mugsey could be boarded there.
Nelson claimed he visited Areata several times prior to boarding Mugsey at the facility out of concern over his dog-aggressive behavior. Nelson testified that during one such visit he told someone that Mugsey had once bitten him on the arm. On September 14, 2000, the day he dropped off Mugsey for boarding, he failed to mention that he had been bitten by the dog one year earlier. Marlena Folden, the receptionist who conducted the intake, did not recall Nelson mentioning either that Mugsey had once bitten him or that he was dog aggressive.
Dr. Oliphant had occasion to observe Mugsey in the kennel while he was boarded there and recalled that “[h]e always appeared friendly. He was a very outgoing, friendly dog.” Prior to his attacking Priebe, Mugsey showed no signs of being “human aggressive.” Dr. Oliphant was, however, aware that Mugsey was dog aggressive: “It was written on his record and on the cage pen.” Mugsey’s intake record also reflected that he had been administered 37 milligrams of apromocine, a sedative, on the day he was accepted for boarding, in likelihood due to his excitement and excessive barking. Dr. Oliphant testified there are some risks associated with walking dogs at the kennel. When asked whether being attacked or bitten by a dog while walking it is one such risk, Dr. Oliphant replied, “Well, sure. That’s possible.”
Dr. Oliphant testified further that when walking a dog-aggressive dog, “[t]here would be a danger that it might attack another dog.” When asked if there was a risk that a person breaking up a dogfight could get bitten, she replied, “Oh, yes, definitely.” When asked, “If after you talked with [your] receptionist someone had mentioned something that triggered her concern, you met with an owner, and the owner had told you that, for example, he got nipped on his arm when he was breaking up a dog fight, is that something that would have concerned you and kept you from keeping the dog?,” Dr. Oliphant replied, “Not necessarily. It would depend on the dog and the owner and the circumstances, because breaking up a dogfight is a very risky thing to do, and it’s common to get bit when you break up a dog fight.” Dr. Oliphant testified she would not have accepted a dog for boarding who had attacked and bitten its owner after a dogfight because it would be “too much of a risk” for the staff. In such an instance, she would possibly refer the dog to the North Bank Kennel facility since “they have inside-outside runs, so they don’t need to walk dogs; so we often refer aggressive dogs to them.”
At some point Priebe became aware Mugsey was dog aggressive. She posted a note on his kennel card and the employee memo board warning of that fact. Priebe also raised the issue with Dr. Oliphant, who suggested she walk Mugsey before and after clients came in and out of the building, to minimize contact with other dogs. Priebe also received instructions from Clusener, her coworker who knew and had himself walked Mugsey, on how to use the pinch collar and harness setup to restrain the dog. Thereafter, Priebe walked Mugsey twice a day for two weeks without incident.
On the morning of September 28, 2000, while taking Mugsey for his morning walk, Priebe heard a dog barking in the back of a pickup truck in the parking lot. Mugsey began barking and becoming agitated. Priebe decided to turn around and return to the kennel. As she was doing so Mugsey grabbed her foot, knocking her down while mauling her foot and ankle. It took several onlookers to subdue the dog and get him to let go of Priebe’s foot. Priebe was taken by ambulance to a local hospital. She suffered numerous bites to her foot and ankle as well as serious nerve injuries that required her to undergo physical therapy and will cause her pain for the rest of her life.
Priebe filed suit against Nelson in February 2001, asserting causes of action for statutory and common law strict liability, negligence, and tortious misrepresentation. Initially the trial court permitted Priebe to proceed on a theory of statutory strict liability pursuant to section 3342. At the close of evidence, however, the court reversed itself, concluding that given the nature of Priebe’s occupation and employment as a kennel worker, she had, as a matter of law, assumed the risk of being bitten by dogs boarded at the kennel where she worked. Over Priebe’s objection, the court denied her request for instructions on strict liability under section 3342, and refused her request for instructions on common law strict liability as well. (BAJI No. 6.66; CACI No. 462.) The case was submitted to the jury 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 motion was denied. She also made a
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. She further argued the jury should have been instructed on common law strict liability in accordance with BAJI No. 6.66 (owning or keeping an animal with vicious propensities).
The Court of Appeal concluded the trial court did not abuse its discretion in granting Priebe a new trial, a holding from which Nelson did not seek review. The court went on to affirm 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) is inapplicable on these facts by virtue of the veterinarian’s rule, an offshoot of the “fireman’s rule,” which rules are also sometimes collectively referred to as “occupational assumption of the risk.” (See Neighbarger v. Irwin Industries, Inc. (1994)
The Court of Appeal went on to hold that Priebe was entitled to an instruction on common law strict liability on the theory that the owner of a domestic animal who knows or has reason to know of its vicious propensities is strictly liable for injuries caused by the animal. (BAJI No. 6.66; CACI No. 462.)
We granted Priebe’s petition for review, limited to the question 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.
In Knight v. Jewett (1992)
Subdivision (a) of section 3342 has been recognized as imposing a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place. (Davis v. Gaschler (1992)
Nelson contends that notwithstanding any duty of care imposed on him generally or specifically under the dog bite statute, because he relinquished custody and control of Mugsey to the Areata kennel, and because dog bites are an inherent risk of work at a dog kennel, the doctrine of primary assumption of risk must be applied to bar Priebe’s statutory strict liability claim.
The doctrine of assumption of risk, which is generally applicable in strict liability actions (Lipson, supra,
In Knight, supra,
In Knight, the plaintiff brought an action for negligence and assault and battery for injuries she sustained when defendant knocked her over and stepped on her finger during an informal touch football game. The trial court granted summary judgment in favor of the defendant. We affirmed, observing that defendant did not breach a legal duty of care owed to plaintiff when he injured her while both were voluntarily participating in the game because “defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself.” (Knight, supra,
The “venerable fireman’s [or firefighter’s] rule” is perhaps the most familiar example of the doctrine of primary assumption of risk. (Walters v. Sloan (1977)
The veterinarian’s rule, an offshoot of the firefighter’s rule, has also been recognized in past decisions of this court as yet another application of the doctrine of primary assumption of risk. (Neighbarger, supra, 8 Cal.4th at pp. 544—546; Knight, supra,
In Nelson, supra,
The plaintiff in Nelson, the court observed, was aware of the risks involved in treating dogs; indeed she herself had been bitten several times in the past. (Nelson, supra,
The Nelson court also addressed the question whether the dog’s owners could assert primary assumption of risk as a complete defense to the plaintiff’s statutory strict liability claim under section 3342. The court undertook a brief review of the principles underlying the firefighter’s rule, and concluded, “The same principles apply here. A veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that any dog, regardless of its previous nature, might bite while being treated, has assumed this risk as part of his or her occupation.
Ever since Nelson, supra,
Similarly, in Willenberg v. Superior Court (1986)
A number of cases support the Court of Appeal’s conclusion. In two California decisions discussed by this court in connection with the veterinarian’s rule in Neighbarger, supra,
Two additional sister-state court decisions have placed principal reliance on the California Court of Appeal decision in Nelson, supra,
In Jordan v. Lusby (Ky.Ct.App. 2002)
Similarly, in Reynolds v. Lancaster County Prison (1999) 325 NJ. Super. 298 [
The Reynolds court quoted Nelson, supra,
In two other sister-state decisions, the assumption of risk defense was specifically extended to bar recovery by a “kennel attendant” (Lundy v. Stuhr (1987)
In arguing that the doctrine of primary assumption of risk should not be applied as a bar to her statutory strict liability claim, Priebe urges us to focus on many of the facts peculiar to her case. It is undisputed that she was seriously injured as a result of Mugsey’s attack. She asserts Nelson’s dog was predisposed to become vicious and bite or attack people, pointing out that, unbeknownst to her, the dog had bitten Nelson and another individual in the past. She alleges Nelson failed to disclose this fact to her or anyone else at the kennel, suggesting she thus had no subjective appreciation of the risk she actually faced when caring for and walking this particular dog. She notes she had only been working at the kennel for approximately one month before the attack, and that although she received some general training as a kennel worker, and some specific advice from her colleague Clusener on how to harness, walk, and if need be, restrain Mugsey with his metal-pronged pinch collar, she received no special training on how to care for or manage a dog of his vicious and dangerous nature.
The precise question here, however, and the only one on which Priebe sought review, is whether the Court of Appeal correctly concluded the doctrine of primary assumption of risk, as embodied in the veterinarian’s rule, serves as a bar to her strict liability claim against Nelson under the dog bite statute. (§ 3342). As Knight, supra,
We have already considered the legislative intent and purpose behind California’s strict liability dog bite statute as it bears on the question whether assumption of risk should be recognized as a complete defense to a kennel worker’s claim for damages under its provisions. Priebe argues section 3342 “represents a fundamental determination of legal policy by the California Legislature that the risk of a dog unexpectedly biting a person is to be borne by the person who has chosen to own that dog and thus create that risk for society, even when the owner is not at fault in any way and has no reason to know that the dog is vicious.” We believe Priebe reads too much into the statute.
We have shown that subdivision (a) of section 3342 has been held to impose a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place so as “to prevent dogs from becoming a hazard to the community.” (Davis, supra,
Notwithstanding the general intent and purpose behind section 3342, we must also ask, is there is any clear public policy that would justify excusing the specific duty of care imposed on dog owners under the statute by extending the veterinarian’s rule as a bar to personal injury suits by kennel workers injured on the job by dogs left in their exclusive care and control? The pertinent case law identifies several relevant public policies.
We have examined the California cases, starting with Nelson, supra,
One rationale given in these cases for excusing the dog owner’s usual duty of care under the veterinarian’s rule lies in “ ‘the nature of the activity’ ” that characterizes the veterinary profession. (Neighbarger, supra,
Hence, one public policy supportive of the veterinarian’s rule is the commonsense recognition that veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) are in the best position, and usually the only position, to take the necessary safety precautions and protective measures to avoid being bitten or otherwise injured by a dog left in their care and control. We believe that same policy reason supports extension of the veterinarian’s rule to kennel workers, such as Priebe, who are likewise trained to safely care for, walk, and handle dogs, and who are in the only position to look out for their own personal safety when working with dogs boarded at their kennels in the dog owners’ absence. From a public policy standpoint, it makes little sense to hold a dog owner strictly liable for the routine risk of dog bite injuries suffered by such trained and paid professionals.
A second rationale given in the case law for excusing the dog owner’s usual duty of care under the dog bite statute arises from the special nature of “the relationship between the defendant and the plaintiff.” (Neighbarger, supra,
There is yet a another policy reason for extending the veterinarian’s rule to kennel workers such as Priebe, one perhaps best articulated by the Louisiana court in Dubois v. Economy Fire & Cas. Co. (La.Ct.App. 1998)
Extending the veterinarian’s rule as a bar to personal injury actions by kennel workers who are bitten or injured by a dog while on the job will therefore further serve the policy of encouraging dog owners to avail themselves of the services of licensed commercial dog kennels, without the threat of liability and lawsuits for injuries caused by their dogs’ conduct hanging over their heads, conduct they are in no position to guard against or control once the dog is surrendered to the kennel for boarding. Encouraging the use of secure kennel boarding facilities in turn serves the salutory purpose behind the dog bite statute—that of protecting members of the public from harm or injury by dogs not properly under their owners’ control and which they (the members of the public) themselves are in no position to control.
As we have noted, the factual matters of whether Nelson knew or had reason to know of Mugsey’s vicious propensities, and whether he adequately warned Priebe or other Areata staff members of the fact that his dog had bitten him and another individual in the past, were contested below. On retrial, Priebe will have the opportunity to again seek to establish facts supportive of her common law strict liability claim against Nelson for knowingly keeping a domestic animal with vicious propensities. (BAJI No. 6.66; CACI No. 462.)
Conclusion
The judgment of the Court of Appeal is affirmed, and the matter remanded to that court for further proceedings consistent with the views expressed herein.
George, C. J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
In contrast, adoption of the literal construction the dissent would have this court place on section 3342 would require us to disapprove the veterinarian’s rule announced in Nelson, supra,
It should be noted Nelson was decided seven years before Knight, supra,
The New Jersey dog bite statute (N.J.Stat.Ann., § 4:19-16) provided, “ ‘The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.’ ” (Reynolds, supra,
Priebe points to several out-of-state decisions that have reached contrary conclusions. We find Mulcahy v. Damron (Ct.App. 1991)
Dissenting Opinion
By enacting Civil Code section 3342, the Legislature has made a dog’s owner 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.” (Civ. Code, § 3342, subd. (a).) The Legislature has established exceptions to this statutory liability; The owner is not liable for dog bite injuries inflicted under specified circumstances by dogs engaged in military or police work. (Id., § 3342, subds. (b)-(d).)
Not satisfied with the exceptions that the Legislature has authorized, the majority here creates another. The majority holds that because plaintiff Marta Priebe worked at a kennel where the dog that savagely bit her was being boarded, the dog’s owner is not liable under Civil Code section 3342 for the damages resulting from her dog bite injuries. The majority reaches this result by extending the so-called veterinarian’s rule, itself an extension of the firefighter’s rule, to judicially declare a nonstatutory exception to a statutory liability.
I
In August 2000, Marta Priebe began employment as a kennel worker at the Areata Animal Hospital. A few weeks later, on September 14, Russell Nelson boarded his dog, a 75-pound male pit bull named Mugsey, at the hospital’s kennel. Mugsey was not sick or injured; he was not at the hospital for treatment. Mugsey was merely being boarded there while Nelson was out of town. Nelson requested that Mugsey be walked twice a day.
On the morning of September 28, Priebe began to walk Mugsey. A dog in the back of a pickup truck in the parking lot was barking, and Mugsey became agitated. Priebe decided to return to the kennel, and as she was doing so Mugsey grabbed her left ankle, knocking her down. When the dog was eventually pulled off her, she was taken by ambulance to a hospital for treatment of multiple bites to her foot and ankle resulting in serious nerve injuries that will cause her to be in pain for the rest of her life.
Priebe sued Nelson under Civil Code section 3342, also asserting claims for common law strict liability and negligence. After both parties had presented all their evidence at the trial, the court refused Priebe’s request for jury instructions on liability under Civil Code section 3342 and on common law strict liability, allowing the case to go to the jury only on the negligence theory. In closing argument, Nelson’s counsel exploited these last-minute developments, arguing that Priebe’s counsel had improperly urged the jury to find Nelson strictly liable, and the jury returned a verdict for Nelson. Recognizing that it had treated Priebe unfairly, the trial court granted her motion for a new trial, but it denied her motion for judgment notwithstanding the verdict.
II
Under Civil Code section 3342, a dog’s owner is liable for any damages suffered by a person whom the dog bites “regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” The statute contains no exception for dog bite injuries suffered by kennel workers like Marta Priebe. Nothing indicates the Legislature intended such an exception when it enacted the statute.
The majority offers various justifications for its judicial amendment of Civil Code section 3342. None is persuasive.
First, the majority may be understood to argue that because assumption of the risk was a recognized defense to tort liability in 1931 when the Legislature enacted the uncodified predecessor of Civil Code section 3342 (Stats. 1931, ch. 503, § 1, pp. 1095-1096), and in 1953 when the Legislature codified that provision without substantial change as Civil Code section 3342 (Stats. 1953, ch. 37, § 6, pp. 675-676), this court may infer that the Legislature intended that the new statutory liability would be subject to that defense. (Maj. opn., ante, at pp. 1120-1121, citing Gomes v. Byrne (1959)
The majority asserts that my position would require this court to overrule its decision in Gomes v. Byrne, supra,
The majority next appears to argue that even if the doctrine of primary assumption of the risk was not yet fully recognized and articulated in 1953 when the Legislature codified Civil Code section 3342, the firefighter’s rule was then in existence, and this court may infer that the Legislature was aware of that rule. (Maj. opn., ante, at p. 1121.) But the firefighter’s rule, under which a member of the public who negligently starts a fire is not held liable for injuries suffered by firefighters summoned to combat the fire, has no
As this court has explained, the firefighter’s rule has four justifications. The first justification is that firefighters should not be permitted to sue on account of “the very negligence that makes their employment necessary.” (Neighbarger v. Irwin Industries, Inc. (1994)
The second justification for the firefighter’s rule is that firefighters should not be permitted to sue someone who negligently starts a fire because they are already adequately compensated (with special salary, retirement, and disability benefits) for the particular risks involved in their hazardous occupation. (Neighbarger v. Irwin Industries, Inc., supra,
The third justification for the firefighter’s rule is that the public, having taxed itself to secure the services of the firefighter, should not have to pay twice, through taxation and through individual liability, for that service. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 542-543.) When defendant Nelson hired the animal hospital to board his dog, by contrast, he paid them to provide ordinary care for his dog, including food, shelter, and twice-daily walks. He did not pay the hospital primarily or specifically to confront a risk of being bitten by his dog. Indeed, Dr. Jeri Oliphant, the owner of the hospital, testified that she would not have accepted Nelson’s dog for boarding if she had known of its history of biting humans. Thus, Nelson cannot argue that he is being required to pay twice, through boarding fees and through statutory tort liability, for the very same service.
The majority next argues that even if the firefighter’s rule does not apply of its own force, the veterinarian’s rule, a variant or offshoot of the firefighter’s rule, applies to dog bite injuries suffered by kennel workers. (Maj. opn., ante, at p. 1122.) In California, the veterinarian’s rule traces its origin to Nelson v. Hall (1985)
The justification offered for the veterinarian’s rule is that when a dog is undergoing treatment for illness or injury, the risk that the dog will bite the veterinarian or the veterinarian’s assistant is “a specific known hazard endemic” to the veterinary profession (Nelson v. Hall, supra,
The majority asserts that nothing in the language of Civil Code section 3342 suggests that the Legislature intended it to apply to dog bite injuries inflicted
As a final reason for extending the veterinarian’s rule to kennel workers, the majority asserts that this new judicially created exception to statutory liability under Civil Code section 3342 will further three public policies. (Maj. opn., ante, at pp. 1129-1132.) This reasoning ignores constitutional limitations on judicial authority, because this court’s views on public policy do not authorize it to amend statutes, or to decline to enforce them according to their plain meaning. (See Green v. Ralee Engineering Co. (1998)
The public policies on which the majority relies are: (1) kennel workers are in the best position to avoid being bitten by dogs left in their care (maj. opn., ante, at pp. 1129-1130); (2) dog owners contract with and pay kennels to care for their dogs (id. at p. 1131); and (3) dog owners should be encouraged to use licensed dog kennels (id. at p. 1131). The first two are factual assertions or observations, not policies. Although encouraging dog owners to use licensed kennels could be a public policy, it is not one that the Legislature has chosen to adopt, much less one that the Legislature values more highly than the policies underlying Civil Code section 3342. Those policies, one may infer, are to provide compensation for the victims of dog bites, and to provide dog owners with a strong incentive to minimize the risk of dog bites by using care in the selection, breeding, socialization, and training of dogs. By relying on a policy that is not tethered to any constitutional or statutory provision, and by valuing that policy more highly than those embodied in the plain language of Civil Code section 3342, the majority arrogates to itself the Legislature’s authority to set public policy.
Ill
In construing statutory provisions, “a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.” (People v. One 1940 Ford V-8 Coupe (1950)