Cohen v. McIntyre

• Decision Date: 03 January 1991
• Docket Number: No. A047342,A047342
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 226 Cal.App.3d 801, 233 Cal.App.3d 201, 10 Cal.App.4th 449, 4 Cal.App.4th 1611 226 Cal.App.3d 801, 233 Cal.App.3d 201, 10 Cal.App.4th 449, 4 Cal.App.4th 1611 Warren COHEN, Plaintiff and Appellant, v. Suzanne McINTYRE, et al., Defendants and Respondents.

Page 91

277 Cal.Rptr. 91

Previously published at 226 Cal.App.3d 801, 233 Cal.App.3d 201, 10 Cal.App.4th 449, 4 Cal.App.4th 1611

226 Cal.App.3d 801, 233 Cal.App.3d 201, 10 Cal.App.4th 449,

4 Cal.App.4th 1611

Warren COHEN, Plaintiff and Appellant, v. Suzanne McINTYRE, et al., Defendants and Respondents.

No. A047342.

Court of Appeal, First District, Division 2, California.

Jan. 3, 1991.

Review Granted March 14, 1991.

Matthew D. Alger, Wilson, Alger & Greulich, San Ramon, for plaintiff and appellant.

Gina Dashman Boer, Fred M. Feller, York, Buresh & Kaplan, Berkeley, for defendants and respondents.

SMITH, Associate Justice.

In this dog bite case, plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment ¹ in favor of defendants-respondents Anne McIntyre and her parents Eugene and Suzanne McIntyre in Cohen's action for negligence as a result of injuries he suffered while treating defendant's dog Lobo. This case raises the question of whether the owner of a dog which bit a veterinarian may be liable for negligently concealing her pet's propensity to bite people, where the veterinarian receives actual knowledge of the same risk prior to the attack. We will hold that assumption of the risk applies and that therefore any negligence could not have been the proximate cause of the injuries suffered.

BACKGROUND

Plaintiff Cohen is a veterinarian employed by the County of Contra Costa. In his 16 years of experience, he had been bitten twice before while treating dogs. On March 17, 1988 defendant Anne McIntyre brought her dog Lobo to the Contra Costa Veterinary Clinic for a pre-neutering examination. Lobo had bitten three people in the past two years and defendant wanted him neutered because she thought it would "mellow" him.

After about five minutes, Cohen bent down to pick the dog up off the floor. As soon as he touched Lobo, the dog turned and snapped at the veterinarian's left arm, causing him to withdraw. Cohen then said words to the effect, "When were you going to tell me the dog might bite, after he has my arm?" He gave defendant a muzzle and instructed her that the dog had to be muzzled before he could proceed any further. After several attempts, defendant succeeded in muzzling the dog. Cohen lifted the dog onto the table and performed the pre-neutering examination. When he was finished, Cohen placed the dog back on the floor and, without seeking assistance from defendant, removed the muzzle from Lobo. As soon as the muzzle was off, the dog turned and bit the doctor several times. At no time did Cohen ask, nor did defendant volunteer, any information about whether the dog had a propensity to bite.

Cohen filed a form complaint against defendant and both of her parents with the designation "Personal Injury/Dog Bite" containing one cause of action for negligence. It alleged that defendants failed to warn Cohen of the dog's vicious propensities and exposed him to being bitten. An "Exemplary Damages" attachment alleged that defendants ² knew of the dog's vicious propensities yet failed to warn and concealed them from Cohen.

APPEAL

I Assumption of the Risk

As a general principle, a plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm. (Rest.2d Torts, § 496A, p. 560.) The elements of the defense of assumption of the risk are (1) knowledge and appreciation of the danger involved and (2) voluntary acceptance of the risk. (Gomes v. Byrne (1959) 51 Cal.2d 418, 420, 333 P.2d 754.) Although Civil Code section 3342 (also known as the "Dog Bite Statute") fixes strict liability upon dog owners to those injured by their pets regardless of prior knowledge of viciousness, in California a person who voluntarily exposes himself to the obvious hazard of being bitten cannot recover, either in negligence or under the statute. (Ibid.; Nelson v. Hall (1985) 165 Cal.App.3d 709, 711, 211 Cal.Rptr. 668 (Nelson ).)

Other than in cases where there is an express agreement, there are two types of assumption of the risk--unreasonable assumption and reasonable assumption. It is now recognized that where plaintiff unreasonably (i.e., carelessly and negligently) encounters a known risk, his or her conduct is merely a strain of negligence and the defense is subsumed by comparative negligence principles. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825, 829, 119 Cal.Rptr. 858, 532 P.2d 1226; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, fn. 4, 255 Cal.Rptr. 755; Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612.) A defendant should expect in the normal course of human affairs that some risks will be unreasonably undertaken, and therefore owes a duty of care to guard against the consequences of such behavior. (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 105, 243 Cal.Rptr. 536 (Ordway ).)

By contrast, the second species of the doctrine, which concerns us here, is based on an "inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, emphasis original.) While a defendant is not entitled to ignore risks unreasonably assumed, he or she may properly ignore risks reasonably assumed, since the implied consent of the assuming party has the legal effect of eliminating a defendant's duty of care which would otherwise exist. (See Prosser &amp Keeton, Torts (5th ed. 1984) § 68, p. 481.) Where there is no duty, there can be no breach and consequently no basis for "comparison" in the post-Li world. (See Ordway, supra, 198 Cal.App.3d at p. 104, 243 Cal.Rptr. 536.) Accordingly, with one notable exception (Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 169-175, 191 Cal.Rptr. 578), the overwhelming weight of appellate authority holds that reasonable implied assumption of the risk remains viable as a complete defense even after the adoption of comparative negligence. (Knight v. Jewett (1990) 225 Cal.App.3d 886, 275 Cal.Rptr. 292; Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755; King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315-1316, 253 Cal.Rptr. 140; Neinstein v. Los Angeles Dodgers, Inc., supra, 185 Cal.App.3d 176, 184, 229 Cal.Rptr. 612; Ordway, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536; Nelson, supra, 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668; Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719, 181 Cal.Rptr. 311.) ³

Reasonable assumption of the risk provides the basis for the so-called "fireman's rule" which precludes firefighters injured while fighting a fire (Lipson v. Superior Court (1982) 31 Cal.3d 362, 367, 182 Cal.Rptr. 629, 644 P.2d 822; Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119) and policemen injured in the course of their duties (Walters v. Sloan (1977) 20 Cal.3d 199, 204-206, 142 Cal.Rptr. 152, 571 P.2d 609) from recovering from those whose negligence exposed them to the risk of injury. The rationale is that one "whose occupation by its very nature exposes them to particular risks of harm, cannot complain of negligence in the creation of the very occasion for [their] engagement." (Id., at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609, quoting Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821, internal quotation marks omitted.)

In Nelson, supra, 165 Cal.App.3d 709, 211 Cal.Rptr. 668, the rationale of fireman's rule was extended to veterinarians and their assistants who are bitten while animals under their control are receiving care and treatment. There, a veterinary assistant who was unaware of any vicious propensities of a dog which had been brought in for a minor operation, was bitten without warning while holding the animal on the operating table. (Id., at p. 712, 211 Cal.Rptr. 668.) In announcing a "veterinarian's rule," the Nelson court ruled that dog bites during treatment are an occupational hazard which veterinarians and their assistants accept by undertaking their employment. "The veterinarian determines the method of treatment and handling of the dog. He or she is the person in possession and control of the dog and is in the best position to take necessary precautions and protective measures. The dog owner who has no knowledge of its particular vicious propensities has no control over what happens to the dog while being treated" should not be held liable on either negligence or strict liability theories. (Id., at p. 714-715, 211 Cal.Rptr. 668.) In Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625, the court applied the Nelson rule to bar a claim by a veterinarian who was attacked by a dog which suddenly leaped off the examination table.

Here, as in Nelson, the attack occurred while the dog was under the veterinarian's exclusive control. More telling, unlike the dog in Nelson, Lobo gave the vet advance warning of the danger he was confronting--he snapped at Cohen within five minutes of being brought into the examination room, prompting Cohen to insist that the dog be muzzled before he would proceed any further. Notwithstanding this display of hostility, Cohen decided to remove the dog's muzzle himself, thereby voluntarily exposing himself to the obvious hazard.

Cohen tries to distinguish this case on the basis that here defendant knew of Lobo's vicious propensities and concealed it from him. He relies on dictum contained in a footnote in Nelson, supra, where the court cautioned that it was not holding that "dog owners could never be held liable for injuries to veterinarians or their assistants. We emphasize that the defense of assumption of the risk extends only to the danger which the injured person has knowingly assumed; i.e., the danger the dog will bite while being treated. [p ] Moreover, if a dog owner...