Priebe v. Nelson 6/8/04 CA1/4

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State: California

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

Docket No: A101630

Case Date: 06/08/2004

Preview:Filed 6/8/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

MARTA PRIEBE, Plaintiff and Appellant, v. RUSSELL NELSON, Defendant and Appellant. A101630 (Humboldt County Super. Ct. No. DR010121)

The setting of this dog bite case is a commercial kennel. The incident is an attack on a kennel technician who was routinely walking a dog under its care. At the outset of the trial the court below ruled that California's strict liability dog bite statute1 applied, but at the close of evidence the court changed its mind. The matter went to the jury on a negligence claim only, with a defense verdict. Plaintiff successfully moved for a new trial, citing irregularity in the proceedings, surprise and misconduct of counsel. Both parties have appealed. We conclude the trial court did not abuse its discretion in granting the new trial. We further hold that the dog bite statute does not apply to the situation at hand, but that the trial court should have instructed the jury in the language of BAJI No. 6.66 that the owner of a domestic animal who knows or has reason to know of its vicious propensities is strictly liable Civil Code section 3342 (section 3342), the dog bite statute, provides in part: "The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the
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for injuries caused by the animal. Accordingly, we remand for a new trial consistent with this opinion. I. BACKGROUND A. Facts Defendant and appellant Russell Nelson had a Staffordshire terrier named Mugsey that weighed about 75 pounds. Nelson walked Mugsey twice a day, using a pinch collar to control him. Mugsey did not "like" certain dogs, and got into some dogfights. On one occasion in November 1999 Nelson and Mugsey came upon John Phillips and his dog. The dogs nosed each other and then one snapped. Nelson slapped Mugsey with the slack in the leash. By that time Phillips had control of his dog and Mugsey was not trying to "get at her anymore." The pinch chain came off and as Nelson reached to pick it up, Mugsey latched onto his arm and broke through an artery. Phillips tried to get Mugsey off and the dog bit him too, on both arms. Both men were treated at a local hospital for multiple dog bites. That fall, Nelson was scheduled for out-of-town surgery. Nelson talked with Peter Clusener, an acquaintance of his who worked at the Arcata Animal Hospital (Arcata),2 about boarding Mugsey while he was away. Nelson had concerns about kenneling Mugsey because he exhibited "dog aggressive"3 behavior. Clusener said he would check with the veterinarians to see if it would be "okay" to board Mugsey at Arcata. He did, and let Nelson know he could board the dog there.

owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." (Id. at subd. (a).) Arcata is a small veterinary hospital that has a kennel connected to the facility which takes patients and boarders. Animal experts testified that a "dog aggressive" dog is one that becomes aggressive when it sees other dogs. Being dog aggressive is not an indication that the dog is human aggressive. Dog aggression "can be dominance behavior or fear or territorial behavior that is . . . meant to either dominate the other dog or drive it away or harm it." 2
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Nelson visited Arcata a couple of times prior to his surgery. He claimed that on one occasion he told someone that Mugsey had bitten him on the arm. Nelson dropped off his dog on September 14, 2000. On that day he did not mention the biting incident. He brought along the pinch collar and leash because he understood the dog would be walked twice a day. Marlena Folden, the receptionist who conducted the intake, did not recall any mention that Mugsey was dog aggressive. More than likely she would have noted that information on the intake form. Nor did Folden have any recollection that Nelson told her he had been bitten by Mugsey. Had she been told that the dog bite required hospital treatment, she would have informed the veterinarian. Dr. Oliphant, owner of the facility, stated that she would not have kept a dog who attacked its owner after a dogfight was over and while the owner was hitting the dog with his leash because it would be "too much of a risk" for the staff. Plaintiff and appellant Marta Priebe, a kennel technician at Arcata since August 2000, 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 the prong 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 the dog. At some point Priebe became aware that Mugsey was dog aggressive. She posted a note on Mugsey's kennel card and the employee memo board indicating that Mugsey was dog aggressive. Priebe also raised the issue with Dr. Oliphant. Dr. Oliphant suggested that Priebe walk the dog before and after clients came in and out of the building, to minimize contact between Mugsey and other dogs. Priebe also received instructions from a coworker and from Clusener on how to use the leash setup and harness. Priebe put this suggestion into practice and walked Mugsey twice a day for two weeks without problem. On the morning of September 28, 2000, Priebe took Mugsey for his walk, first surveying the immediate area to make sure "there weren't any loose animals or . . . 3

people coming in." Starting toward the lawn, she heard a dog bark. The dog was in the back of a pickup truck in the parking lot. Mugsey started barking and getting agitated. Priebe did not use the restraining abilities of the pinch chain when Mugsey started barking. She decided to turn around and return to the kennels. Mugsey grabbed her foot, knocked her down and mauled her foot and ankle. Priebe was taken by ambulance to a local hospital. She suffered numerous bites to her foot and ankle as well as nerve injuries which will cause her to be in pain for the rest of her life. B. Procedural History Priebe initiated this lawsuit in February 2001. She asserted causes of action for common law and statutory strict liability, negligence and misrepresentation. Prior to trial the parties submitted briefs on the applicability of section 3342. Priebe argued that she should be allowed to voir dire potential jurors on whether they would be willing to award damages under the statute, and further indicated she would ask "for this Court's guidance now that it will indeed instruct on the strict liability statute." Nelson countered that this was a clear case of "primary assumption of the risk under the [firefighter's] rule." The trial court agreed with Priebe, ruling that it would "allow[] the statute." During voir dire Priebe's counsel informed the jury that this was a strict liability case, and asked prospective jurors whether they would be willing to award damages on that theory. After the close of evidence the trial court reversed itself and refused to instruct on strict liability. Priebe objected. Having been overruled, she further requested instructions that defendant can be strictly liable if the jury finds defendant knew Mugsey had "vicious propensities." (BAJI No. 6.66.) The court denied this request. The case went to the jury solely on the issue of Nelson's negligence. At the beginning of defendant's closing statement, Nelson's counsel stated: "I want to start with the concept that was attempted to be drilled into you during voir dire, that somehow if someone owns a dog, the owner of the dog, under the law, is liable for a 4

bite. That's not true in this case. That's not what your Honor has instructed you." The jury returned a defense verdict. Thereafter, Priebe moved for judgment notwithstanding the verdict and for a new trial. Her motion for new trial cited several grounds, including irregularity in the proceedings, misconduct of counsel and surprise. Granting the motion, the court explained: "This Court, in its pretrial ruling regarding the use of Civil Code section 3342, set the tone and content of the evidence to be allowed at trial. The Court, at the end of the trial, then changed its mind, and disallowed the use of strict liability, upon which plaintiff's counsel had reasonably relied. Defense counsel, in a streak of zealousness, then argued to the jury that plaintiff's counsel had misled the jury regarding the strict liability issue. [

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