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Quote of the Day - When a dog bites a man that is not news, but when a man bites a dog, that is news. - Charles Anderson Dana

Give a Dog A Bone, Not an Arm or an Ankle

We out here on the Left Coast have a unique approach to many things, and oddly enough, to dog bite laws, too. OK, time for disclosure. I'm a defense lawyer, not a plaintiff's lawyer. That said, let's get to the issue at hand.

Seems as though dog owner Nelson needed surgery, and wanted to kennel Mugsey at a vet's during his time under the knife. Mugsey is a Staffordshire Terrier. That's doublespeak for pit bull. Perhaps not surprising, Mugsey was "dog aggressive."

In fact, Mugsey actually had earlier bit Nelson and severed an artery, putting Nelson in the hospital (presumably an unrelated surgery), along with another dog owner Mugsey attacked. Although the recent case from the 1st Appellate District didn't go so far to characterize it this way, I'm guessing Mugsey was "human aggressive," too. After all, it was an artery.

But here's the rub. It appears that Nelson might not have been completely up front with the vet who operated the kennel regarding Mugsey's biting tendencies, however characterized. Then, as you probably know by now, Mugsey bit his handler on her ankle during a walk. Next, as you also have already guessed, our walker, Priebe, sued Nelson.

This is where it gets interesting. The Left Coast has Civil Code section 3342 (second one down), commonly known as the strict liability dog bite statute. You own a dog, it bites someone, you are liable. Period. End of story. Or so you would think.

What would the law be without exceptions to the rule? And yes, we have two, or at least one, with a variant. It's called the Firefighter's Rule, and from that, the veterinary variant, announced first in our case.

Basically, it means no recovery for people employed to handle the very risk where they may be injured. It's an odd rule that results in odd outcomes. Someone negligently starts a fire, the firefighter gets injured, but the firefighter can't recover from the person who negligently starts the fire. But, if it's an arsonist (removing the negligence element), then recovery would be proper.

So too here. Our dog walker was employed to walk dogs, and inherent in that job is the risk of a dog bite. Our illustrious 1st Appellate District Court determined therefore that the veterinary variant applied, preventing application of Civil Code section 3342, the strict liability dog bite statute.

But, that's not the rest of the story. Our Court also decided that the trial court should have instructed the jury on BAJI 6.66, a jury instruction that the occupational assumption of the risk does not apply here because a domestic animal is presumed not to have vicious tendencies, the owner knew about it but failed to disclose it. Check out the last paragraph of the jury instruction, and you'll get the picture.

Remember that Nelson apparently forgot to tell the vet that Mugsey severed an artery in his arm, and put another dog owner in the hospital, too? He will likely get tagged for that failure.

You could say that the Appellate Court threw Priebe a bone.

(I had to say that.)

Posted by J. Craig Williams on 6/17/2004 at 09:29 Comments (1)



Comments by J. Craig Williams from United States on Friday, September 17, 2004 at 20:21

On Friday, September 17, 2004, the California Supreme Court picked this case for review. We'll keep you posted.


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