McDaniel v. Witschi, F053783 (Cal. App. 9/26/2008), F053783

• Decision Date: 26 September 2008
• Docket Number: F053783
• Parties: CARSON McDANIEL, a Minor etc., Plaintiff and Appellant, v. RUDY WITSCHI et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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CARSON McDANIEL, a Minor etc., Plaintiff and Appellant, v. RUDY WITSCHI et al., Defendants and Respondents.

F053783

Court of Appeal of California, Fifth Appellate District

September 26, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Tulare County, No. 06-221821, Patrick O'Hara, Judge.

Law Office of Ken M. Fitzgerald, Ken M. Fitzgerald; Law Offices of Larry M. Lee, Larry M. Lee and Christopher C. McLain for Plaintiff and Appellant.

Emerson Corey & Sorensen, James D. Emerson and C. Frederick Meine, III for Defendants and Respondents.

OPINION

HILL, J.

Plaintiff, Carson McDaniel, a minor appearing through his father as guardian ad litem, appeals from a judgment after trial in an action based on a dog bite. The verdict was in plaintiff's favor, but apportioned 50 percent of the responsibility for his injuries to his father. Plaintiff contends he established the elements of statutory strict liability for the dog bite, but the jury was improperly instructed on the defense of comparative negligence, which he asserts is not a valid defense to that statutory liability. Plaintiff also contends there was insufficient evidence to support the jury's finding that his father was 50 percent responsible for plaintiff's injury, and he challenges the adequacy of the damages awarded by the jury. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2005, plaintiff's father, David McDaniel, delivered a vehicle to defendants, Rudy and Debra Witschi, at their home after repairing it for them. Plaintiff's mother, Sharon McDaniel, followed in their car, to give David¹ a ride home. Plaintiff accompanied one of his parents to defendants' home. After receiving payment for the repair work, David and Rudy stood outside Rudy's office chatting. While that conversation went on, plaintiff, who was then five years old, stood nearby petting defendants' dog, Max. There was conflicting evidence regarding whether plaintiff pulled the dog's ears as he petted him and whether Rudy told plaintiff not to pull the dog's ears. Suddenly, without warning, the dog grabbed plaintiff's face in his mouth and took him to the ground. Rudy pulled the dog off plaintiff; David, Sharon, and Debra, who had arrived from the kitchen after hearing plaintiff scream, tended to plaintiff's wounds. Debra called 911. An ambulance arrived, and plaintiff was taken to the emergency room, where the doctor sutured wounds in his cheek and ear with a total of about 20 stitches. At the time of trial more than two years later, plaintiff had a scar on his cheek, which a plastic surgeon testified could not be improved by plastic surgery and would remain throughout plaintiff's life.

Plaintiff and his parents sued defendants. Plaintiff asserted causes of action for strict liability pursuant to the dog bite statute (Civ. Code, § 3342) and negligence. His parents each alleged a cause of action for negligent infliction of emotional distress, but those causes of action were dismissed at the beginning of trial.

The jury found in favor of plaintiff on the statutory cause of action and awarded him $1,507.94 in economic damages for his medical expenses and $5,000 for past noneconomic damages, including pain and suffering. It awarded nothing for future noneconomic damages. It found defendants 50 percent responsible for plaintiff's injuries and David responsible for the other 50 percent. It assigned no responsibility to plaintiff.

Plaintiff moved for a new trial; the motion was denied and plaintiff appealed.

DISCUSSION

Plaintiff raises two issues in this appeal: (1) David should not have been assigned 50 percent of the responsibility for plaintiff's injury and (2) the noneconomic damages awarded were inadequate.

I. Comparative Fault

Plaintiff challenges the jury's verdict apportioning 50 percent of the responsibility for his injuries to his father. Plaintiff seems to assert that the jury should not have been given the instruction directing it to assign percentages of responsibility to any person listed on the special verdict form whose negligence or fault contributed to his injury, or that the special verdict form should not have listed David as a potentially responsible person, or both. Plaintiff argues that (1) comparative fault is not a defense to strict liability under the dog bite statute, (2) a parent has no duty to supervise or protect his child in the absence of knowledge of the danger, and (3) there was insufficient evidence to support the jury's finding of negligence on the part of David.

A. Comparative fault and strict liability

"The owner of any dog is 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).) This statute imposes strict liability on the dog's owner. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 175-176 (Johnson).) Nonetheless, the owner is not an insurer of others' safety, and the statutory liability is not absolute. (Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358; Smythe v. Schacht (1949) 93 Cal.App.2d 315, 321.) The defenses of assumption of the risk and contributory negligence may still be asserted. (Johnson, supra, at p. 176; accord Burden v. Globerson (1967) 252 Cal.App.2d 468, 470-471.)

While some early cases suggested that contributory negligence was not a defense to liability under the dog bite statute, they recognized that provocation of the dog by the injured person was a defense that was not precluded by the strict liability imposed by statute. (See, e.g., Talazin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 438;Smythe v. Schacht, supra, 93 Cal.App.2d at pp. 321-322, indicating that contributory negligence is a defense to an action for injuries caused by a domestic animal based on negligence but not on strict liability, but also recognizing that "good morals and sound reasoning dictate that if a person lawfully upon the portion of another's property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.") Those cases also preceded the advent of comparative fault principles in California law. Prior to Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, contributory negligence was an all-or-nothing proposition; if plaintiff negligently contributed to his own injury, his recovery from defendants who also negligently contributed to his injury was barred. (Id. at pp. 809-810.) Li adopted "a system of `pure' comparative negligence, the fundamental purpose of which [is] to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Id. at p. 829.) Subsequently, in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 583, the court held that the equitable indemnity doctrine could be used to apportion fault on a comparative negligence basis among multiple tortfeasors responsible for the same injury. More recently, Civil Code section 1431.2 was enacted, providing that "[i]n any action for personal injury, ... based upon principles of comparative fault, ... [e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault." (Id., subd. (a).) Thus, under current law, liability for a plaintiff's injuries may be apportioned among all persons the jury finds legally responsible for those injuries, including plaintiff, defendants, and third persons.

In the strict products liability context, courts have held that the jury is competent to apportion liability between negligent and strictly liable parties. In Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 742, the court concluded that the jury could be required to apportion the loss between a negligent plaintiff and a strictly liable defendant. (Id. at pp. 737-738.) It held that "a system of comparative fault should be and it is hereby extended to actions founded on strict products liability." (Id. at p. 742.) The court noted: "While ... the term `equitable apportionment of loss' is more accurately descriptive of the process, nonetheless, the term `comparative fault' has gained such wide acceptance by courts and in the literature that we adopt its use herein." (Ibid.) In Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328 (Safeway), the court concluded that the comparative indemnity doctrine discussed in American Motorcycle provides an appropriate basis for apportioning liability among multiple defendants, some of whom were found negligent and some of whom were found strictly liable for plaintiff's injuries. In Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, the court suggested the principles of comparative fault applicable in strict products liability cases should also apply to actions based on strict liability for ultrahazardous activities. The court stated: "There are many obvious parallels between strict products liability and ultrahazardous activity cases, and the rationale for applying comparative negligence or fault to the former would seem equally pertinent to the latter. [Citations.]" (Id. at p. 421.)

The rationale behind the application of comparative negligence principles to apportionment of responsibility among tortfeasors in strict product liability cases was explained in Safeway, supra, 21 Cal.3d at pp. 330-331:

"Nothing in the rationale of strict product liability conflicts with a rule which apportions liability between a strictly liable defendant and other responsible tortfeasors. Although one of the principal social policies served by product liability doctrine is to assign liability to a party who possesses the ability to distribute losses over an appropriate...