Cohen v. McIntyre, A047342

• Court: California Court of Appeals
• Citation: 16 Cal.App.4th 650,20 Cal.Rptr.2d 143
• Decision Date: 15 June 1993
• Docket Number: No. A047342,A047342
• Parties: Warren COHEN, Plaintiff and Appellant, v. Suzanne McINTYRE et al., Defendants and Respondents.

Page 143

20 Cal.Rptr.2d 143 16 Cal.App.4th 650 Warren COHEN, Plaintiff and Appellant,
v.
Suzanne McINTYRE et al., Defendants and Respondents. No. A047342. Court of Appeal, First District, Division 2, California. June 15, 1993.

Page 144

[16 Cal.App.4th 652] Matthew D. Alger, Attorney Kent C. Wilson, Attorney Wilson, Alger & Grenlich, San Ramon, for plaintiff and appellant.

Gina Dashman Boer, Fred M. Feller, York, Buresh, & Kaplan, A Professional Corp., Berkeley, for defendant and respondent.

SMITH, Associate Justice.

Plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment ¹ in favor of defendant-respondent Suzanne McIntyre and her parents in plaintiff's action for negligence brought as a result of injuries he suffered while treating defendant's dog Lobo. This case is on remand from the California Supreme Court for reconsideration in light of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ). After reviewing Knight and other authorities, we reaffirm our previous ruling that Cohen's recovery is, as a matter of law, barred by the doctrine of assumption of the risk.

BACKGROUND

With one noted exception (see fn. 2 post ) we repeat the statement of facts as set forth in our prior opinion:

[16 Cal.App.4th 653] 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 Suzanne 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. ² 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

Page 145

the muzzle was off, the dog turned and bit the doctor several times. At no time did Cohen ask for nor did defendant volunteer, any information about whether the dog had a propensity to bite.

Cohen filed a form complaint against defendant and her parents ³ 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 defendant knew of the dog's vicious propensities yet failed to warn and concealed them from Cohen.

The trial court granted summary judgment in favor of defendant, and this court affirmed. The California Supreme Court granted review pending the outcome of its decision in Knight. The case has now been retransferred to us for reconsideration in light of that opinion.

APPEAL

In Knight, a three-judge plurality of the state Supreme Court (with a fourth, Justice Mosk, concurring in the result) effectively abolished the [16 Cal.App.4th 654] previous judicial categorization of assumption of the risk into "reasonable" and "unreasonable" forms for purposes of determining whether the doctrine has been subsumed by the comparative negligence principles adopted by the court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Li ). (See, e.g., Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102-105, 243 Cal.Rptr. 536.) After analyzing Li and the authorities it cites, Knight declared that survival of the doctrine as a defense in any given fact situation should instead turn on the distinction between "primary" and "secondary" assumption of risk. Primary assumption of the risk according to Knight refers to "those instances in which the assumption of risk doctrine embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk...." Secondary assumption involves "those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty...." (Knight, supra, 3 Cal.4th 296, 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight held that "the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." (Knight, supra, 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In a footnote most significant to the case at bar, the court held that in addition to the sports setting, "the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the 'firefighter's rule.' [Citation.] In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront." (Id., fn. 5, at pp. 309-310, 11 Cal.Rptr.2d 2, 834 P.2d 696, emphasis added.)

After this quote, the court cites not only Baker v. Superior Court (1982) 129...