Adams v. Lewis 9/30/04 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G031197

Case Date: 12/22/2004

Preview:Filed 9/30/04 Adams v. Lewis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

LORE ADAMS, Plaintiff and Respondent, v. WENDY LEWIS et al., Defendants and Appellants. G031197 (Super. Ct. No. 01CC05561) OPINION

Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Reversed with directions. Pollak, Vida & Fisher, Michael M. Pollak, Daniel P. Barer, Anna L. Birenbaum; Law Offices of William C. Cole and Ted Endres for Defendants and Appellants. White & Roseman, Leslie Roseman; and John L. Dodd for Plaintiff and Respondent. * * *

Richard and Wendy Lewis hired animal behavior specialist Lore Adams to tame their pet dog, an overly-aggressive young Dalmatian rescued from the local animal shelter. Bitten by the canine at the third training session, Adams sued the Lewises for

personal injuries. A jury found the couple negligent and awarded Adams $38,016 in damages. Claiming Adams assumed the risk of being bitten during the lessons, the Lewises challenge the denial of their motions for summary judgment and nonsuit. They also contend the trial court erred in denying their proposed jury instructions. We conclude the Lewises were entitled to summary judgment and therefore reverse the judgment. I FACTS AND PROCEDURAL BACKGROUND The facts presented at the summary judgment motion focus on a pugnacious and temperamental Dalmatian named Oreo, a dog apparently ill-bred for anything except legal controversy. Rescued from an animal shelter by the Lewises, Oreo soon displayed aggressive actions toward strangers and family members alike, and on one occasion attempted to bite an individual. To remedy the problem, the Lewises hired Adams, an "Animal Behaviorist Trainer" with 13 years experience. Informed of Oreo's history of aggression, Adams agreed to four training sessions for $325. During the first two sessions, Adams directed Wendy Lewis (Wendy)1 to tape-record the training lessons and to take notes for future reference. Adams arrived for Oreo's third training session on January 2, 2001. Following previous instructions from Adams, Wendy commanded Oreo to sit still. As Adams entered the home, Wendy gave the "release" command, and Adams gave Oreo a treat. The dog ran outside and Adams followed. There, before the tape-recorded training session resumed, Oreo bit Adams.

We use first names, where appropriate, to avoid confusion and intend no disrespect. (Nairne v. Jessop-Humblet (2002) 101 Cal.App.4th 1124, 1126.)
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In April 2001, Adams sued the Lewises for personal injuries resulting from the dog bite, alleging the couple was negligent in keeping a dangerous dog with known vicious propensities. The Lewises moved for summary judgment, claiming Adams had assumed the risk of a bite, based on her profession as a dog trainer. Adams contended the risk is not assumed under the so-called "`veterinarian's rule'" unless the veterinarian assumes control of the animal and begins treatment. She argued there was a triable issue of fact on whether the training session had resumed when she was injured. The trial court denied the motion. The case proceeded to trial. The Lewises moved for nonsuit, asserting Adams was injured while engaging in activities within the scope of her employment. The trial court denied the motion, and refused defense instructions based on the veterinarian's rule and assumption of the risk. The jury awarded Adams $38,016 in damages. This appeal followed. II DISCUSSION A. Standard of Review The trial court must grant summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,

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