COHEN v. McINTYRE (1991)

In this dog bite case, plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment ¹ in favor of defendants-respondents Anne McIntyre and her parents Eugene and Suzanne McIntyre in Cohen's action for negligence as a result of injuries he suffered while treating defendant's dog Lobo.   This case raises the question of whether the owner of a dog which bit a veterinarian may be liable for negligently concealing her pet's propensity to bite people, where the veterinarian receives actual knowledge of the same risk prior to the attack.   We will hold that assumption of the risk applies and that therefore any negligence could not have been the proximate cause of the injuries suffered.

BACKGROUND

Plaintiff Cohen is a veterinarian employed by the County of Contra Costa.   In his 16 years of experience, he had been bitten twice before while treating dogs.   On March 17, 1988 defendant Anne McIntyre brought her dog Lobo to the Contra Costa Veterinary Clinic for a pre-neutering examination.   Lobo had bitten three people in the past two years and defendant wanted him neutered because she thought it would “mellow” him.

After about five minutes, Cohen bent down to pick the dog up off the floor.   As soon as he touched Lobo, the dog turned and snapped at the veterinarian's left arm, causing him to withdraw.   Cohen then said words to the effect, “When were you going to tell me the dog might bite, after he has my arm?”   He gave defendant a muzzle and instructed her that the dog had to be muzzled before he could proceed any further.   After several attempts, defendant succeeded in muzzling the dog.   Cohen lifted the dog onto the table and performed the pre-neutering examination.   When he was finished, Cohen placed the dog back on the floor and, without seeking assistance from defendant, removed the muzzle from Lobo.   As soon as the muzzle was off, the dog turned and bit the doctor several times.   At no time did Cohen ask, nor did defendant volunteer, any information about whether the dog had a propensity to bite.

Cohen filed a form complaint against defendant and both of her parents with the designation “Personal Injury/Dog Bite” containing one cause of action for negligence.   It alleged that defendants failed to warn Cohen of the dog's vicious propensities and exposed him to being bitten.   An “Exemplary Damages” attachment alleged that defendants ² knew of the dog's vicious propensities yet failed to warn and concealed them from Cohen.

APPEAL

I Assumption of the Risk

 As a general principle, a plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.  (Rest.2d Torts, § 496A, p. 560.)   The elements of the defense of assumption of the risk are (1) knowledge and appreciation of the danger involved and (2) voluntary acceptance of the risk.   (Gomes v. Byrne (1959) 51 Cal.2d 418, 420, 333 P.2d 754.)   Although Civil Code section 3342 (also known as the “Dog Bite Statute”) fixes strict liability upon dog owners to those injured by their pets regardless of prior knowledge of viciousness, in California a person who voluntarily exposes himself to the obvious hazard of being bitten cannot recover, either in negligence or under the statute.  (Ibid.;  Nelson v. Hall (1985) 165 Cal.App.3d 709, 711, 211 Cal.Rptr. 668 (Nelson ).)

 Other than in cases where there is an express agreement, there are two types of assumption of the risk—unreasonable assumption and reasonable assumption.   It is now recognized that where plaintiff unreasonably (i.e., carelessly and negligently) encounters a known risk, his or her conduct is merely a strain of negligence and the defense is subsumed by comparative negligence principles.  (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824–825, 829, 119 Cal.Rptr. 858, 532 P.2d 1226;  Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, fn. 4, 255 Cal.Rptr. 755;  Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612.)   A defendant should expect in the normal course of human affairs that some risks will be unreasonably undertaken, and therefore owes a duty of care to guard against the consequences of such behavior.  (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 105, 243 Cal.Rptr. 536 (Ordway ).)

 By contrast, the second species of the doctrine, which concerns us here, is based on an “inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger.”  (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, emphasis original.)   While a defendant is not entitled to ignore risks unreasonably assumed, he or she may properly ignore risks reasonably assumed, since the implied consent of the assuming party has the legal effect of eliminating a defendant's duty of care which would otherwise exist.  (See Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 481.)   Where there is no duty, there can be no breach and consequently no basis for “comparison” in the post-Li world.  (See Ordway, supra, 198 Cal.App.3d at p. 104, 243 Cal.Rptr. 536.)   Accordingly, with one notable exception (Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 169–175, 191 Cal.Rptr. 578), the overwhelming weight of appellate authority holds that reasonable implied assumption of the risk remains viable as a complete defense even after the adoption of comparative negligence.  (Knight v. Jewett (1990) 225 Cal.App.3d 886, 275 Cal.Rptr. 292;  Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755;  King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315–1316, 253 Cal.Rptr. 140;  Neinstein v. Los Angeles Dodgers, Inc., supra, 185 Cal.App.3d 176, 184, 229 Cal.Rptr. 612;  Ordway, supra, 198 Cal.App.3d at pp. 102–105, 243 Cal.Rptr. 536;  Nelson, supra, 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668;  Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719, 181 Cal.Rptr. 311.) ³

Reasonable assumption of the risk provides the basis for the so-called “fireman's rule” which precludes firefighters injured while fighting a fire (Lipson v. Superior Court (1982) 31 Cal.3d 362, 367, 182 Cal.Rptr. 629, 644 P.2d 822;  Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 360, 72 Cal.Rptr. 119) and policemen injured in the course of their duties (Walters v. Sloan (1977) 20 Cal.3d 199, 204–206, 142 Cal.Rptr. 152, 571 P.2d 609) from recovering from those whose negligence exposed them to the risk of injury.   The rationale is that one “whose occupation by its very nature exposes them to particular risks of harm, cannot complain of negligence in the creation of the very occasion for [their] engagement.”  (Id., at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609, quoting Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821, internal quotation marks omitted.)

In Nelson, supra, 165 Cal.App.3d 709, 211 Cal.Rptr. 668, the rationale of fireman's rule was extended to veterinarians and their assistants who are bitten while animals under their control are receiving care and treatment.   There, a veterinary assistant who was unaware of any vicious propensities of a dog which had been brought in for a minor operation, was bitten without warning while holding the animal on the operating table.   (Id., at p. 712, 211 Cal.Rptr. 668.)   In announcing a “veterinarian's rule,” the Nelson court ruled that dog bites during treatment are an occupational hazard which veterinarians and their assistants accept by undertaking their employment.  “The veterinarian determines the method of treatment and handling of the dog.   He or she is the person in possession and control of the dog and is in the best position to take necessary precautions and protective measures.   The dog owner who has no knowledge of its particular vicious propensities has no control over what happens to the dog while being treated” should not be held liable on either negligence or strict liability theories.  (Id., at p. 714–715, 211 Cal.Rptr. 668.)   In Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625, the court applied the Nelson rule to bar a claim by a veterinarian who was attacked by a dog which suddenly leaped off the examination table.

 Here, as in Nelson, the attack occurred while the dog was under the veterinarian's exclusive control.   More telling, unlike the dog in Nelson, Lobo gave the vet advance warning of the danger he was confronting—he snapped at Cohen within five minutes of being brought into the examination room, prompting Cohen to insist that the dog be muzzled before he would proceed any further.   Notwithstanding this display of hostility, Cohen decided to remove the dog's muzzle himself, thereby voluntarily exposing himself to the obvious hazard.

Cohen tries to distinguish this case on the basis that here defendant knew of Lobo's vicious propensities and concealed it from him.   He relies on dictum contained in a footnote in Nelson, supra, where the court cautioned that it was not holding that “dog owners could never be held liable for injuries to veterinarians or their assistants.   We emphasize that the defense of assumption of the risk extends only to the danger which the injured person has knowingly assumed;  i.e., the danger the dog will bite while being treated.  [¶ ] Moreover, if a dog owner purposefully or negligently conceals a particular known hazard from a veterinarian, he or she would not be relieved of liability, for this would expose the injured person to an unknown risk.   [Citation.]”  (165 Cal.App.3d at p. 715, fn. 4, 211 Cal.Rptr. 668, emphasis original.)   Cohen maintains that this case falls within the exception recognized in the footnote because defendant's concealment of her dog's previous vicious behavior created a risk which Cohen did not impliedly undertake.   He is incorrect.

The Nelson footnote recognizes a situation in which a dog owner might be liable for exposing the veterinarian to an “unknown risk.”   For example, if an owner knew that her dog had a tendency to lunge at people wearing glasses, she might well have a duty to disclose this fact to a glasses-wearing veterinarian before he began treating the animal.   A concealment of this type might properly be said to be an independent intervening cause of the resulting injury.  (Cf. Lipson v. Superior Court, supra, 31 Cal.3d at p. 371, 182 Cal.Rptr. 629, 644 P.2d 822.)   But here, defendant's admitted nondisclosure did not expose Cohen to any unknown risk.   The hazard which Cohen impliedly assumed was the risk that the dog would bite him while being examined.   This danger was graphically communicated to Cohen prior to the attack when the dog snapped at him.   Any doubt that Cohen failed to appreciate the risk was removed when he sarcastically asked defendant whether she was going to wait until the dog had his arm to tell him that it might bite and insisted that Lobo be muzzled before he would continue.   By unmuzzling the dog at the conclusion of the examination, Cohen voluntarily encountered a known danger.⁴

In Gomes v. Byrne, supra, 51 Cal.2d 418, 333 P.2d 754, a Fuller Brush salesman approaching the entrance to defendant's home was followed by a barking dog for about 50 feet as he walked along the fence leading to the gate.   Plaintiff nevertheless opened the gate, walked into the yard and was bitten.   In denying recovery based on assumption of the risk, the California Supreme Court stated, “if plaintiff recognized the danger that the dog would bite him, his knowledge was sufficient although he did not know whether the dog had a history of viciousness․  [¶ ] Under these circumstances, the risk was obvious.   Notwithstanding the dog's display of hostility, plaintiff elected to leave his place of safety upon the public sidewalk and to enter upon defendant's enclosed private property.   In so doing, he voluntarily exposed himself to the obvious hazard.”  (Id., at pp. 420–421, 333 P.2d 754, last emphasis added.)   As with the salesman in Gomes, the plaintiff here chose to remove the protection afforded him by the muzzle and encounter the patent danger that the dog would bite him.   That he gambled and lost did not render defendant liable for negligence.  (See also Benton v. Aquarium, Inc. (1985) 62 Md.App. 373, 489 A.2d 549 [deliveryman bitten upon opening warehouse door despite walking past and observing two dog warning signs;  held, assumption of the risk bars claim despite triable issue as to defendants' knowledge of dog's vicious propensity.].)

Cohen relies on Lipson v. Superior Court, supra, 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822 and Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 255 Cal.Rptr. 755, to convince us that a different result should obtain.   In Lipson, supra, firefighters who were summoned to the scene of a boilover at a chemical plant claimed that they were falsely told that the fire involved no toxic substances.   They took no precautions to protect themselves and contracted cancer some years later.   The court held, on public policy grounds, that the fireman's rule should not apply to bar a firefighter who has been injured as a proximate result of defendant's misrepresentation of the risk he confronts.  (31 Cal.3d at pp. 371–372, 182 Cal.Rptr. 629, 644 P.2d 822.)   Similarly, in Von Beltz, supra, a stuntwoman participated in a stunt involving a high speed auto chase while seated as a passenger in a sports car not equipped with seat belts.   Although the first take went without incident, the director changed the stunt on the second take without plaintiff's knowledge.   The second take involved a far more dangerous stunt in which the sports car would “weave in and out of the oncoming cars in serpentine fashion” at twice the original speed.  (207 Cal.App.3d at p. 1476, 255 Cal.Rptr. 755.)   Relying on Lipson, the court held that implied assumption of the risk should not apply where the defendant concealed the nature of the danger and plaintiff had no opportunity to either decline to participate or insist on precautionary measures.  (Id., at pp. 1479–1480, 255 Cal.Rptr. 755.)

In both Lipson and Von Beltz the defendants significantly altered the risk without plaintiff's knowledge.   Here, however, the danger was known and explicitly acknowledged.   Defendant's silence about the dog's history did not change the risk which Cohen knowingly encountered.⁵

 Summary judgment is properly granted when the evidence conclusively negates a necessary element of plaintiff's case or establishes a complete defense.  (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 552, 249 Cal.Rptr. 5.)   Since the evidence on the motion demonstrated assumption of the risk as a matter of law, the trial court did not err in granting summary judgment.

II Scope of the Motion

Cohen also contends that summary judgment was improper because defendants' motion addressed only one of three theories of liability raised by the complaint.   Cohen seizes upon the language in the notice of motion which states that there was no triable issue because plaintiff “assumed the risk of his injury and assumption of risk is a complete defense to an action for negligence.”  (Emphasis added.)   According to Cohen, his action was based on three theories—negligence, strict liability under the Dog Bite Statute and intentional or reckless conduct;  he argues summary judgment was improper because the notice only encompassed the first theory.

The short answer to this claim is that any defect in language in the notice was induced by Cohen's own complaint which contained only one cause of action for negligence.   Cohen is estopped from complaining of error which he himself invited.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 301, p. 313;  Evid.Code, § 623.)

 Cohen's argument also fails on the merits.   The defense of assumption of the risk will bar not only actions for negligence but those based on strict liability (Gomes v. Byrne, supra, 51 Cal.2d at p. 420, 333 P.2d 754) and recklessness (Rest.2d Torts, supra, § 496A, at p. 560 & com. d, p. 562).   Finally, on this record there was no basis upon which a trier of fact could reasonably find that defendant purposefully or intentionally concealed the dog's history from Cohen (see fn. 4, infra.).

DISPOSITION

Judgment affirmed.

Unlike my colleagues, I do not believe the defense of reasonable implied assumption of risk remains viable in California after the adoption of comparative negligence.

The California Supreme Court has neither in Li v. Yellow Cab (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 nor elsewhere specifically decided whether a defendant who has breached his duty of care toward the plaintiff may nonetheless raise as a complete defense the fact that the plaintiff reasonably but voluntarily encountered that risk.   The tenor of the court's subsequent opinion in Daly v. General Motor Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 is, if anything, inconsistent with that idea.

Except where there is an express agreement, the doctrine of assumption of risk is simply a confusing way of stating certain no-duty rules or, where there has been a breach of duty toward plaintiff, simply one kind of contributory or comparative negligence.   I believe the doctrine should be abolished.   As stated in one of the most authoritative treatises on the law of torts, “[t]he doctrine of assumption of risk, however it is analyzed and defined, is in most of its aspects a defendant's doctrine that restricts liability and so cuts down the compensation of accident victims.   It is a heritage of the extreme individualism of the early industrial revolution.   But quite aside from any questions of policy or of substance, the concept of assuming the risk is purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence.   The one exception is to be found, perhaps, in those cases where there is an actual agreement.   Moreover, the expression has come to stand for two or three distinct notions that are not at all the same, though they often overlap in the sense that they are applicable to the same situation.”  (4 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 21.8, p. 259, fn. omitted;  accord, Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14;  Green, Assumed Risk as a Defense, 22 La.L.Rev. 77 (1961);  Keeton,Assumption of Risk and the Landowner, 22 La.L.Rev. 108 (1961);  but see, Prosser and Keeton, The Law of Torts (5th ed. 1984), § 68.)

The present case demonstrates the sort of uncertainty that will often result from use of the doctrine of reasonable implied assumption of risk.   The majority states that “[n]otwithstanding [the dog's] display of hostility, Cohen decided to remove the dog's muzzle himself, thereby voluntarily exposing himself to the obvious hazard.”  (Maj. opn. at p. 94.)   I cannot agree this behavior was at all reasonable given Cohen's manifest knowledge of the danger.   The fact that Cohen was a veterinarian is irrelevant.   Unlike a fireman or police officer, his professional duties did not deprive him of the right to refuse to care for the dog in the first place or, having provided care, from taking greater precautions.   This case at least shows that reasonable minds will often differ as to whether a particular claimed assumption of risk is reasonable or unreasonable.   Confusion of this sort is one of the reasons that, as the courts of other states are increasingly coming to realize, “the term ‘assumption of risk’ is so apt to create mist that it is better banished from the scene.”  (McGrath v. American Cyanamid Co. (1963) 41 N.J. 272, 276, 196 A.2d 238, reaffg. Meistrich v. Casino Arena Attractions, Inc. (1959) 31 N.J. 44, 155 A.2d 90;  see also Salinas v. Vierstra (1985) 107 Idaho 984, 695 P.2d 369;  Rutter v. Northeastern Beaver Cty., etc. (1981) 496 Pa. 590, 437 A.2d 1198;  McWilliams v. Parham (1967) 269 N.C. 162, 152 S.E.2d 117;  Parker v. Redden (Ky.1967) 421 S.W.2d 586;  Felgner v. Anderson (1965) 375 Mich. 23, 133 N.W.2d 136;  Bolduc v. Crain (1962) 104 N.H. 163, 181 A.2d 641.)

FOOTNOTES

1.   The appeal is purportedly taken from a nonappealable minute order granting defendant's motion for summary judgment.   In the interests of justice and consonant with routine practice, we will amend the order to incorporate a judgment of dismissal and deem the notice of appeal as applying to that judgment.  (See Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 731, fn. 1, 274 Cal.Rptr. 14;  Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 493, fn. 3, 220 Cal.Rptr. 818, 709 P.2d 837.)

2.   Although Eugene and Suzanne McIntyre were also named as defendants, they were not present during the subject incident and Cohen makes no separate claim that summary judgment was improper as to them.   Consequently, we confine the remainder of the discussion to the liability of defendant Anne McIntyre.

3.   The issue is now pending before the California Supreme Court.   (Ford v. Gouin (1990) 217 Cal.App.3d 1606, 266 Cal.Rptr. 870, review granted (1990) ––– Cal.3d ––––, 269 Cal.Rptr. 720, 791 P.2d 290.)

4.   In deposition testimony which was submitted in support of the motion, Cohen acknowledged as much.   When asked why he took the muzzle off without taking precautionary measures, Cohen replied that in his experience a dog in these circumstances will generally try to get away from the doctor and seek the security of the owner.   Cohen never maintained that he left himself unprotected because he thought the dog had no propensity to bite.   In fact, Cohen's own declaration states that he felt it necessary to remove the muzzle personally because he had tied the straps on so tightly he did not think defendant would be able to remove them.

5.   We emphasize the importance of the sequence of events in determining whether defendant's nondisclosure was a proximate cause of the injury.   Once the dog snapped at him and Cohen insisted on a muzzle, disclosure of the dog's prior history took on a significantly diminished role in the transaction—at that point, defendant could reasonably assume that, as a doctor of veterinary medicine, Cohen fully appreciated the safety risk he was encountering.   Had these events not occurred prior to the bite, defendant's silence might well have different liability implications.

SMITH, Associate Justice.

BENSON, J., concurs.