2016-00197158-CU-PO
Betty Harbeintner vs. Robert Barrett
Nature of Proceeding:
Filed By:
Motion for Summary Adjudication
Memmott, Kyle W.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***Defendant Robert Barrett’s motion for summary adjudication is ruled upon as follows.

This is an action for personal injuries. Plaintiff Betty Harbeintner alleges that in March 2015, Defendant’s Rottweiler, Auggie, bit her. She alleges that she was “preparing to examine” the dog at her home, when Defendant unleashed the dog, allowing the dog to run at Plaintiff and bite her

Defendant moves for summary adjudication of the first cause of action for strict liability on the ground that the claim does not apply to Plaintiff because she is a dog breeder and falls under the “veterinarian rule.”

The following facts are undisputed. Plaintiff is a dog breeder and does business out of her home. (UMF 3.) In August 2013, Plaintiff and Defendant signed an Agreement of Sale Contract for the purchase of the Rottweiler puppy. (UMF 1.) The accident occurred on Plaintiff’s property. (UMF 2.)

The veterinarian’s rule, an offshoot of the firefighter’s rule, has been recognized as an application of the doctrine of primary assumption of risk. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 544-546; Knight v. Jewett (1992) 3 Cal.4th 296, 309, fn. 5.) The rule, first announced in Nelson v. Hall (1985) 165 Cal.App.3d 709, has been held generally to exempt those who contract with veterinarians to treat their dogs from liability should the dog bite the veterinarian during treatment. (See Cohen v. McIntyre (1993) 16 Cal.App.4th 650 [veterinarian]; Willenberg v. Superior Court (1986) 185 Cal.App.3d 185 [same]; Nelson v. Hall (1985) 165 Cal.App.3d 709 [veterinary assistant].)
(Neighbarger, supra, at 544-545.)

Defendant contends that pursuant to Priebe v. Nelson (2006) 39 Cal.4th 1112, as a “kennel operator,” Plaintiff assumed the risk of being bitten ad is barred by the veterinarians rule from suing under CCP ¶ 3342 (strict liability for dog bites).

In Priebe v. Nelson, the California Supreme Court held that the assumption of risk doctrine is a defense to the imposition of strict liability under the dog bite statute (Civil Code section 3342) if a kennel worker is bitten by a dog under the kennel’s care. The court recognized the dog bite statute generally imposes a duty of care on every dog owner to prevent his or her dog from biting persons while in a public place or while lawfully in a private place. However, the court saw nothing to suggest that the Legislature intended that this duty of care should apply in those situations in which the care, custody, and control of the dog has been entrusted to trained professionals in exchange for compensation, as is the case when a dog is left with a veterinarian or placed in a commercial kennel. (Priebe, supra, at 1128.) The court concluded that when kennel operators assume for the care and handling of a dog, they also assume the risk that the dog might bight someone. The kennel operator, rather than the dog’s absent owner, is the party in position to take precautions to ensure that the dog does not bite someone, including a kennel employee. (Priebe, supra, at 1128.)

Courts, however, have been reluctant to extend the veterinarian’s rule to situations where the defendant did not entrust his animal to plaintiff’s professional care and control. For example, the court in Davis v. Gashler (1992) 11 Cal.App.4th 1392, 1401, did not extend the veterinarian’s rule to an experienced dog breeder and handler who voluntarily stopped to assist with an injured dog that had been running loose. The court held plaintiff was not barred from recovery for injuries from the dog’s bite because she was not employed or otherwise compensated for helping injured dogs. Thus, the dog owner’s duties to control and vaccinate their dog were not relieved by the doctrine of assumption of the risk. Similarly, in Prays v. Parryman (1989) 213 Cal.App.3d 1133, , the court did not extend the rule to a commercial dog groomer who had not yet formally accepted defendant’s dog for grooming or entered into a contractual grooming agreement.

Here, Plaintiff has demonstrated a triable issue of material fact as to whether Defendant entrusted the dog to Plaintiff’s professional care and control for compensation. Plaintiff proffers evidence that Auggie had seizures which made him disoriented and aggressive. (AMF 13.) He had previously nipped a few people. (AMF 17.) Defendant’s wife contacted Plaintiff and explained the problems they were having with Auggie. (AMF 18.) Arrangements were made for Plaintiff to bring Auggie to see her to determine whether Plaintiff would take Auggie back. (AMF 7, 18.) The intent of the visit was to see if Plaintiff would take Auggie back and there was no discussion about rendering treatment or care to Auggie. (AMF 7, 8.) The parties never entered into an agreement for Plaintiff to render treatment of care to Auggie. (AMF 6.) Plaintiff was not providing treatment of care for Auggie when she was bitten. (AMF 9.)

Given the triable issue of material fact, the motion for summary adjudication is DENIED.