Davis v. Gaschler, C011785

• Decision Date: 23 December 1992
• Docket Number: No. C011785,C011785
• Citation: 14 Cal.Rptr.2d 679,11 Cal.App.4th 1392
• Parties: Judith C. DAVIS, Plaintiff and Appellant, v. Randy GASCHLER et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 679

14 Cal.Rptr.2d 679

11 Cal.App.4th 1392

Judith C. DAVIS, Plaintiff and Appellant, v. Randy GASCHLER et al., Defendants and Respondents.

No. C011785.

Court of Appeal, Third District, California.

Dec. 23, 1992.

[11 Cal.App.4th 1395] Anthony G. Arlen, Sacramento, for plaintiff and appellant.

Greve, Clifford, Diepenbrock & Paras, Gary S. Decker and William L. Baker, Sacramento, for defendants and respondents.

SIMS, Associate Justice.

In this action for damages arising from a dog bite, plaintiff Judith C. Davis appeals from a summary judgment entered in favor of the dog's owners, defendants Randy Gaschler and Linda Gaschler, on the ground that plaintiff's reasonable implied assumption of the risk provided a complete defense. We will conclude recent California Supreme Court authority on the subject compels reversal of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the trial court's ruling:

"On January 7, 1988, Mrs. Arleane Cumbra and her daughter, Mrs. Beauchamp, who are independent witnesses and not parties to this action, came upon a dog lying in Missouri Flat Road which had apparently been hit by a car. They stopped, wrapped the dog in a blanket because they believed an injured animal might 'bite and fight,' and were attempting to load the dog into the back of their car.

"Plaintiff was driving down the road and noticed these women in the process of assisting the dog. Plaintiff is and has been an experienced breeder and handler of dogs for over ten years. Plaintiff pulled her car over, told the women that she was experienced in handling dogs, and began instructing the women on how to wrap the animal and load it into the car. Plaintiff does not dispute that she 'stopped to take over the situation.' The women followed her instructions. While rendering this aid, the dog bit plaintiff on the hand. ¹

"The dog [which had not been vaccinated] was examined for rabies and the initial tests were equivocal, with some indication that the dog might be rabid. Nine months later, confirmatory tests were negative for rabies.

"Because the initial tests were equivocal, plaintiff was contacted and underwent a series of in[n]oculations for rabies. Plaintiff filed an action for negligence and negligent infliction of emotion[al] distress against defendants, owners of the animal, claiming that her arthritic condition, fatigue, and depression were caused by the dog bite and/or rabies treatment."

Plaintiff's first cause of action was labeled "Strict Liability" but alleged both strict liability under the "dog bite statute" (CIV.CODE § 3342 )² and negligence in allowing the dog to roam loose.

Defendants moved for summary judgment on alternative grounds that (1) Civil Code section 3342 did not apply to the facts of this case; (2) plaintiff's assumption of the risk provided a complete defense to both strict liability and negligence; and (3) there was no proximate causation.

The trial court entered judgment in favor of defendants on the ground that plaintiff's reasonable implied assumption of the risk barred recovery. Plaintiff appeals.

DISCUSSION

I

In order to warrant summary judgment, a defendant must establish as a matter of law that none of the plaintiff's asserted causes of action can prevail. (Code Civ.Proc., § 437c; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Our review is de novo. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1513, 285 Cal.Rptr. 385.)

II

The California Supreme Court has recently filed two opinions discussing the question whether the doctrine of reasonable implied assumption of the risk survives comparative negligence principles announced in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. The new cases are Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2 834 P.2d 696, and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724. ³

In Ford, Justice Arabian authored a lead opinion in which no other justice joined. In Knight, Justice George penned the lead opinion in which Chief Justice Lucas and Justice Arabian concurred. Justice Mosk provided a majority vote with a concurring opinion that agreed for the most part with the lead opinion. (Knight, supra, 3 Cal.4th 296 at p. 321, 11 Cal.Rptr.2d 2, 834 P.2d 696, (conc. & dis. opn. of Mosk, J.).) Because Knight commands a strong plurality, and because it speaks generally to the doctrine of implied assumption of the risk, we will follow Knight here.

According to Knight, scenarios involving assumption of the risk can be grouped in two categories: "(1) 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--the category of assumption of risk that the legal commentators generally refer to as 'primary assumption of risk'--and (2) 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--what most commentators have termed 'secondary assumption of risk.' [Fn.]" (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight continued: "Although the difference between the 'primary assumption of risk'/'secondary assumption of risk' nomenclature and the 'reasonable implied assumption of risk'/'unreasonable implied assumption of risk' terminology embraced in many of the recent Court of Appeal decisions may appear at first blush to be only semantic, the significance extends beyond mere rhetoric. First, in 'primary assumption of risk' cases--where the defendant owes no duty to protect the plaintiff from a particular risk of harm--a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff's conduct in undertaking the activity was reasonable or unreasonable. Second, in 'secondary assumption of risk' cases--involving instances in which the defendant has breached the duty of care owed to the plaintiff--the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff's conduct in encountering the risk of such an injury was reasonable rather than unreasonable. Third and finally, 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. For these reasons, use of the 'reasonable implied assumption of risk'/'unreasonable implied assumption of risk' terminology, as a means of differentiating between the cases in which a plaintiff is barred from bringing an action and those in which he or she is not barred, is more misleading than helpful. [Fn.]" (Knight, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696, original emphasis.)

The Knight plurality summarized its conclusions: "In cases involving 'primary assumption of risk'--where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury--the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving 'secondary assumption of risk'--where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty--the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'' (Knight, supra, 3 Cal.4th at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Applying Knight to this case, we conclude the judgment must be reversed. Defendants, as the parties moving for summary judgment, had the burden to establish the absence of any basis for recovery under plaintiff's causes of action for negligence and negligent infliction of emotional distress. Under Knight, this means they had the burden to show that this is a case of primary assumption of risk--where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendants owe no legal duty to plaintiff. Otherwise, the case is subject to comparative fault principles and is thus inappropriate for summary judgment.

Here, defendants have not shown the absence of a legal duty to plaintiff.

We first note that traditionally the affirmative defense of assumption of risk has presupposed the existence of a duty. Under Knight, however, assumption of risk is now recast as an absence of duty. (See Ford v. Gouin, supra, 3 Cal.4th 339 at p. 352, 11 Cal.Rptr.2d 30, 834 P.2d 724 (conc. opn. of Kennard, J.).) We therefore look to the complaint, which delimits the scope of the issues on summary judgment and measures the materiality of the facts tendered in the defendant's challenge. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508.)

The complaint here alleges facts sufficient to impose a duty on the part of defendants, based on allegations that they owned and negligently controlled the dog that bit plaintiff.

Here, a duty is found in Civil Code section 3342, subdivision (a) (fn. 2, ante ), which imposes on a dog owner liability for damages suffered by a person bitten by the dog while in a public place. ⁴

We note it has been authoritatively held that "[i]n adopting section 3342 of the Civil Code, the Legislature did not intend to render inapplicable such defenses as assumption of risk or wilfully invited injury." (Gomes v. Byrne (1959) 51 Cal.2d 418, 420, 333 P.2d 754.) Adopting this holding to the...