Nelson v. Hall

• Decision Date: 15 March 1985
• Court: California Court of Appeals Court of Appeals
• Parties: Rebecca NELSON, Plaintiff and Appellant, v. Richard HALL, et al., Defendants and Respondents. Civ. 23752.

Page 668

211 Cal.Rptr. 668

165 Cal.App.3d 709

Rebecca NELSON, Plaintiff and Appellant, v. Richard HALL, et al., Defendants and Respondents.

Civ. 23752.

Court of Appeal, Third District, California.

March 15, 1985.

Review Denied May 22, 1985.

Jordan N. Peckham, Chico, and Stephen C. Reed, San Diego, for plaintiff and appellant.

Matthews, Fugua & Puritz, Morey W. Fugua, Chico, for defendants and respondents.

ROBIE, Associate Justice. ^*

Plaintiff Rebecca Nelson appeals from a judgment dismissing her complaint against defendants Susan and Richard Hall in an action for personal injuries, entered after the trial court granted defendants' motion for summary judgment. At issue in this appeal is (a) whether the defense of assumption of the risk is available under the "Dog Bite Statute" (Civ.Code, § 3342), and (b) whether a veterinarian or veterinary assistant assumes the risk of dog bites as a matter of law while treating a dog. We hold in the affirmative.

FACTS

On January 21, 1983, plaintiff, a veterinary assistant, filed a complaint against defendants for injuries she sustained when she was bitten by defendants' dog while she assisted in its treatment at the animal hospital where she was employed. Plaintiff alleged that on or about July 30, 1982, while she was at the Skyway Pet Hospital ("Skyway"), defendants' dog, "Amos," inflicted bites upon her head and face, causing permanent impairment, scarring, and disfigurement. Plaintiff further alleged that by reason of her injuries, she will be limited in her future employment, will require future plastic surgery, and has suffered severe emotional distress. Plaintiff brought the action under the so-called "Dog Bite Statute," Civil Code section 3342. ¹ She did not allege defendants were negligent or had any knowledge of vicious propensities on Amos' part.

In answer, defendants alleged plaintiff contributed to her injuries by her own negligence and that she assumed the risk of injury. They further alleged strict liability for their dog's actions under section 3342 terminated when they delivered the dog to a qualified veterinarian and the veterinarian accepted employment.

After taking plaintiff's deposition, defendants moved for summary judgment, again contending they could not be held strictly liable under section 3342 when they delivered their dog to the veterinarian for medical treatment. Defendants submitted with the motion a portion of plaintiff's deposition and a declaration of plaintiff's employer, Mark Dunlap, D.V.M. In response to defendants' motion, plaintiff did not rebut defendants' factual evidence, but rather conceded its accuracy, arguing as a matter of law that delivery of defendants' dog to a veterinarian did not terminate their strict liability for dog-bite injuries.

Plaintiff had worked on and off as a veterinary assistant since 1966 or 1967. At that time she was studying animal husbandry and veterinary science in college. In 1980, she began working as a veterinary assistant at Skyway, which specializes in small animal treatment. There she assisted the veterinarians in all phases of veterinary medicine, including examinations, treatment, minor surgery, monitoring anesthesia, administering medication (including injections), and laboratory work.

Defendants' dog, Amos, is a black Labrador-German Shepard mix weighing approximately 100 pounds. He was first treated On July 30, 1982, defendant Susan Hall brought Amos to the hospital with a complaint of a small swelling on his right side. Plaintiff directed Mrs. Hall to bring Amos into the examination room. At the time he appeared calm. Dr. James Wadsack, a licensed veterinarian, examined Amos and determined he required minor surgery to remove a foreign object from his right lateral abdomen. After injecting Amos with a sedative, Dr. Wadsack and plaintiff moved Amos to the treatment area of the hospital.

at the Skyway in 1974, and has been treated on a consistent basis since then. Amos was known to the hospital staff as a dog that might attempt to bite while receiving medical treatment. On at least one occasion prior to the incident in the present case, Amos attempted to bite his handlers, and a notation of "careful" was written on his treatment card.

Once there, they lifted Amos onto the treatment table and placed him on his stomach. Plaintiff was standing alongside the treatment table waiting for the sedative to take effect, her left arm placed over Amos' neck and shoulders and her right arm on his loin or rump. She was not restraining him, and he appeared calm. Without warning, Amos quickly turned and bit plaintiff in the face, causing severe injuries. She received workers' compensation benefits.

Plaintiff was not aware of any vicious propensities on the part of Amos and he did not display any such propensities while she handled him, until the time of the attack. Skyway uses muzzles on dogs who are known to be vicious, but no muzzle was used on Amos. No allegation was made that defendants were aware of any vicious propensities on Amos' part. There was no evidence that they were aware Amos had previously attempted to bite his handlers.

In his declaration, Dr. Dunlap stated it is generally accepted in the veterinary profession that any animal may react strangely or dangerously while receiving treatment, regardless of its behavior in the home environment. A veterinarian cannot assume a normally gentle dog will act gently while receiving treatment. Dog bites are an occupational hazard in the veterinary profession and Dr. Dunlap has been bitten several times. The seriousness of the hazard can be minimized through proper safety precautions. Plaintiff has received more than five minor dog bites, one of which required medical treatment. Some were received while the animals were sedated.

DISCUSSION

Although Civil Code section 3342 by its terms imposes strict liability on dog owners, ² it has been long established that the defense of assumption of the risk applies to actions brought under the "Dog Bite Statute." ³ The first case to so hold was Smythe v. Schacht in 1949, at which time the statute was uncodified. (93 Cal.App.2d 315, 321-322, 209 P.2d 114.) In 1953, the Legislature reenacted and codified the statute without substantive modification (statutes 1953, chapter 37) and subsequent courts, including our Supreme Court, have reiterated the Smythe rule. (Gomes v. Byrne (1959) 51 Cal.2d 418, 420, 333 P.2d 754; Burden v. Globerson (1967) 252 Cal.App.2d 468, 470-471, 60 Cal.Rptr. 632; Greene v. Watts (1962) 210 Cal.App.2d 103, 105, 26 Cal.Rptr. 334.)

Even before the enactment of the "Dog Bite Statute" in 1931 (statutes 1931 In certain circumstances the defense of assumption of the risk has survived the establishment of comparative fault. Where assumption of the risk is only a form of contributory negligence--i.e., where a plaintiff unreasonably encounters a known risk--the doctrine has been subsumed by comparative fault (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825, 829, 119 Cal.Rptr. 858, 532 P.2d 1226), which is applicable to cases of strict liability (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162). Where assumption of the risk is not merely a form of contributory negligence, it has not been subsumed and is a complete defense. (Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719, 181 Cal.Rptr. 311.)

                chapter 503), assumption of the risk was held to be a defense to strict liability for injuries caused by a dangerous animal.  (Opelt v. Al. G. Barnes Co. (1919) 41 Cal.App. 776, 779-780, 183 P. 241;  see Rest. 2d Torts, § 515, subd.  (3), com. e, and cases cited in appendix, § 515, p. 30;  Prosser & Keeton, Torts (5th Ed.1984) § 79, p. 566, and cases cited therein.)   This rule still exists for animal cases as well as other instances of strict liability.  (Rest. 2d Torts, supra;  Prosser & Keeton, supra;  Lipson v. Superior Court, supra, 31 Cal.3d at p. 375, 182 Cal.Rptr. 629, 644 P.2d 822;  Luque v. McLean (1972) 8 Cal.3d 136, 145, 104 Cal.Rptr. 443, 501 P.2d 1163.)
                

Plaintiff does not dispute defendants' factual showing. Plaintiff's employer stated that dog bites are an occupational hazard in the veterinary profession and it cannot be assumed a normally gentle dog will act gently while receiving treatment. This risk logically extends to those who assist veterinarians in the treatment of dogs. Plaintiff was aware from her personal experience of the hazard involved in treating dogs, for she had been bitten several times, albeit not as seriously as in this instance. She voluntarily undertook to encounter a specific known risk. It is irrelevant that she was not aware of any particular vicious propensities on the part of Amos, for what is relevant in assumption of the risk is a person's " '... knowledge and appreciation of the danger involved and his voluntary acceptance of the risk.' " (Gomes v. Byrne, supra, 51 Cal.2d at p. 420, 333 P.2d 754; original emphasis.) The risk of dog bites during treatment is a specific known hazard endemic to the very occupation in...