Priebe v. Nelson, No. S126412.

CourtUnited States State Supreme Court (California)
Writing for the CourtBaxter
Citation140 P.3d 848,47 Cal.Rptr.3d 553
PartiesMarta PRIEBE, Plaintiff and Appellant, v. Russell NELSON, Defendant and Appellant.
Decision Date28 August 2006
Docket NumberNo. S126412.
140 P.3d 848
47 Cal.Rptr.3d 553
Marta PRIEBE, Plaintiff and Appellant,
v.
Russell NELSON, Defendant and Appellant.
No. S126412.
Supreme Court of California.
August 28, 2006.

Page 849

Chapman, Popik & White, Susan M. Popik, Benjamin J. Riley, San Francisco; Mitchell, Brisso, Delaney & Vrieze and Nancy K. Delaney, Eureka, for Defendant and Appellant.

Law Offices of Ruel Walker, W. Ruel Walker, Oakland; Janssen, Malloy, Needham, Morrison, Reinholtsen & Crowley, W. Timothy Needham and Michael Morrison, Eureka, for Plaintiff and Appellant.

BAXTER, J.


Plaintiff Marta Priebe, a commercial kennel worker, brought this action against defendant Russell Nelson for personal injuries suffered when she was bitten and seriously injured by Nelson's dog while it was boarded at the kennel that employed her. Priebe appealed from the trial court's order denying her motion for judgment notwithstanding the defense verdict, arguing a directed verdict should have been entered in her favor on her strict liability claim brought under Civil Code section 3342 (section 3342), commonly referred to as the "dog bite statute." Section 3342 makes the owner of any dog "liable for the damages suffered by any person who is bitten by the dog ... regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." (§ 3342, subd. (a).)

Nelson countered that the so-called veterinarian's rule absolved him of any potential liability for injuries inflicted on Priebe by his dog while it was boarded at the kennel. Under that rule, which is a recognized application of the doctrine of primary assumption of risk, a dog owner who contracts with a veterinarian to treat his or her dog is generally exempt from liability should the dog bite or injure the veterinarian or veterinarian's assistant during such medical treatment. (See Nelson v. Hall (1985) 165 Cal. App.3d 709, 710, 211 Cal.Rptr. 668 (Nelson).)

The narrow question presented here is whether the veterinarian's rule should likewise

Page 850

bar a kennel worker's strict liability claim against a dog owner under section 3342 for injuries sustained from a dog bite or attack while the worker was caring for the owner's dog boarded at the kennel. The Court of Appeal concluded the doctrine should apply, finding Priebe assumed the risk of being bitten by dogs boarded at the kennel by virtue of the nature of her occupation as a kennel worker. We find the Court of Appeal's analysis sound and shall affirm its judgment.

Our holding with regard to the dog bite statute does not, however, mark the end of the road for plaintiff. A common law strict liability cause of action may also be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal's vicious propensities. (BAJI No. 6.66; see also Judicial Council of Cal., Civ. Jury Instns. (2003-2004) CACI No. 462.) If Nelson knew or should have known of his dog's vicious propensities and failed to inform Priebe of such facts, he could be found to have exposed Priebe to an unknown risk and thereby be held strictly liable at common law for her injuries. (See Lipson v. Superior Court (1982) 31 Cal.3d 362, 371, 182 Cal.Rptr. 629, 644 P.2d 822 (Lipson); cf. Nelson, supra, 165 Cal.App.3d at p. 715, fn. 4, 211 Cal.Rptr. 668.) Under such circumstances, the defense of primary assumption of risk would not bar Priebe's claim since she could not be found to have assumed a risk of which she was unaware. (Ibid.)

Whether Nelson knew or had reason to know his dog had vicious propensities, and if so, whether he adequately communicated that fact to Priebe or others at the kennel when the dog was surrendered for boarding, were matters sharply contested at trial. The Court of Appeal recognized the distinction between the elements of Priebe's statutory strict liability claim under section 3342, and her remaining common law claims, affirming the trial court's order granting her a new trial on those latter claims. Since that aspect of the Court of Appeal's holding has not been directly challenged on review, Priebe will be afforded an opportunity to pursue those common law claims on retrial.

FACTS AND PROCEDURAL BACKGROUND

In the fall of 2000, defendant Russell Nelson was scheduled for out-of-town surgery and boarded "Mugsey," his 75-pound Staffordshire terrier, also known as a pit bull, at a kennel while he was away. Mugsey was "dog aggressive" and had gotten into fights with other dogs in the past. On one occasion a year earlier, Mugsey had also bitten Nelson and another dog owner moments after the two men pulled their dogs apart to avoid a fight. Nelson required several stitches in his hand as a result of the incident.

At least one kennel would not accept Mugsey for boarding when Nelson informed them the dog was hard to control around other dogs. Nelson then spoke with Peter Clusener, an acquaintance who worked at the Arcata Animal Hospital (Arcata), a small veterinary hospital with a kennel connected to the facility at which dogs are accepted for boarding even when no medical treatment is required. Clusener was familiar with Mugsey and knew him to be dog aggressive. He checked with the Arcata veterinarian staff and informed Nelson Mugsey could be boarded there.

Nelson claimed he visited Arcata several times prior to boarding Mugsey at the facility out of concern over his dog aggressive behavior. Nelson testified that during one such visit he told someone that Mugsey had once bitten him on the arm. On September 14, 2000, the day he dropped off Mugsey for boarding, he failed to mention that he had been bitten by the dog one year earlier. Marlena Folden, the receptionist who conducted the intake, did not recall Nelson mentioning either that Mugsey had once bitten him or that he was dog aggressive.

Dr. Oliphant, a veterinarian and owner of the facility, testified Priebe's training as a "kennel technician" would have included the basics of dog walking, including checking a boarded dog's kennel card to make sure there was no reason not to walk it, how to put a leash and collar on properly, how to greet the dog, and "to be careful of the other dogs and be aware of the dog that you're walking." Her duties included "caring for the patients and the boarders, feeding, walking,

Page 851

cleaning, laundry, helping hold animals, assisting the veterinarians and the technicians holding animals. We examine them, give vaccines ... greeting clients, to bring animals back for vaccines when the technicians were doing booster vaccines . . . autoclaving [instrument sterilization], clean surgical packs, instruments, things like that. Lots of varied duties."

Dr. Oliphant had occasion to observe Mugsey in the kennel while he was boarded there and recalled that "[h]e always appeared friendly. He was a very outgoing, friendly dog." Prior to his attacking Priebe, Mugsey showed no signs of being "human aggressive." Dr. Oliphant was, however, aware that Mugsey was dog aggressive; "It was written on his record and on the cage pen." Mugsey's intake record also reflected that he had been administered 37 milligrams of apromocine, a sedative, on the day he was accepted for boarding, in likelihood due to his excitement and excessive barking. Dr. Oliphant testified there are some risks associated with walking dogs at the kennel. When asked whether being attacked or bitten by a dog while walking it is one such risk, Dr. Oliphant replied, "Well, sure. That's possible."

Dr. Oliphant testified further that when walking a dog aggressive dog, "[t]here would be a danger that it might attack another dog." When asked if there was a risk that a person breaking up a dog fight could get bitten, she replied, "Oh, yes, definitely." When asked, "If after you talked with [your] receptionist someone had mentioned something that triggered her concern, you met with an owner, and the owner had told you that, for example, he got nipped on his arm when he was breaking up a dog fight, is that something that would have concerned you and kept you from keeping the dog?," Dr. Oliphant replied, "Not necessarily. It would depend on the dog and the owner and the circumstances, because breaking up a dog fight is a very risky thing to do, and it's common to get bit when you break up a dog fight." Dr. Oliphant testified she would not have accepted a dog for boarding who had attacked and bitten its owner after a dogfight because it would be "too much of a risk" for the staff. In such an instance, she would possibly refer the dog to the North Bank Kennel facility since "they have inside-outside runs, so they don't need to walk dogs; so we often refer aggressive dogs to them."

Priebe testified she had been working as a kennel worker or technician at Arcata for about four weeks when she met Nelson and Mugsey on September 14, 2000. They walked back to the kennels together. Nelson told Priebe that Mugsey needed to be walked with his metal-pronged pinch collar. He also told her that "if anyone hurt Mugsey[,] that he may hurt them, and that if someone kicked Mugsey, that he may bite them." Priebe assured Nelson that no one would hurt or kick his dog.

At some point Priebe became aware Mugsey was dog aggressive. She posted a note on his kennel card and the employee memo board warning of that fact. Priebe also raised the issue with Dr. Oliphant who suggested she walk Mugsey before and after clients came in and out of the building, to minimize contact with other dogs. Priebe also received instructions from Clusener, her coworker who knew and had himself walked Mugsey, on how to use the pinch collar and harness setup to restrain the dog. Thereafter, Priebe walked Mugsey twice a day for two weeks without incident.

On the morning of September 28, 2000, while taking Mugsey for his morning walk, Priebe heard a dog barking in the back of a pickup truck in the parking lot. Mugsey began barking and becoming agitated. Priebe decided to turn around and return to...

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