Dog Day Afternoon in California Supreme Court

California's dog bite statute - Civil Code 3342 - makes the owner liable to the victim regardless of the animal's "former viciousness" or knowledge of same. But the so-called veterinarian's rule, a variation on the primary assumption of risk doctrine, says a dog owner who contracts with the vet to treat the dog is generally exempt from liability should the dog bite or injure the vet or an assistant during treatment. (See Nelson v. Hall (1985) 165 Cal.App.3d 709, 710.)

So which controls when a vet assistant is injured while treating the animal: the statute imposing strict liability for a bite, or the primary assumption of risk doctrine that exempts the owner from liability? Under the California Supreme Court's opinion in Priebe v. Nelson, issued today, veterinarians assume the risk of bites by virtue of the job.


The court, however, offered one caveat: a common law strict liability cause of action may also be maintained if the owner of a domestic animal knew or had reason to know of the animal’s vicious propensities. The court remanded to the lower court to determine if the owner knew or should have known of his dog’s vicious propensities and failed to inform the vet; in that event the owner could have exposed the assistant to an unknown risk, and thereby be strictly liable at common law. Under such circumstances, the defense of primary assumption of risk would not bar the claim, since the assistant could not be found to assume a risk of which she was unaware.