Willenberg v. Superior Court

Opinion

ASHBY, J.

Petitioners, defendants in a personal injury action, seek a writ of mandate directing the respondent court to grant their motion for summary judgment. We hold that petitioners are entitled to summary judgment and accordingly direct the issuance of a peremptory writ of mandate.

Petitioners are the owners of a half-Doberman, half-German Shepherd dog named Pebbles. Real party (plaintiff) is Pebbles’ veterinarian. Plaintiff had treated Pebbles throughout her puppyhood without incident, and the dog never exhibited any violent propensities. During a visit to plaintiff’s office on March 24, 1984, Pebbles got away from her owner (petitioner Travis Willenberg) and leaped onto plaintiff. Plaintiff managed to fend her off but she jumped on plaintiff again, forcing plaintiff to “wrestle her down.” In doing so plaintiff injured his shoulder. Pebbles did not bite plaintiff, one factor which plaintiff claims distinguishes this case from

Nelson

v.

Hall

(1985) 165 Cal.App.3d 709 [211 Cal.Rptr. 668].

The plaintiff in

Nelson

was a veterinarian’s assistant who filed suit after being bitten by a “patient” who had not previously exhibited any violent tendencies. The dog’s owners moved for summary judgment on the ground that dog bites were an inherent risk of the veterinary profession. In affirming the summary judgment in favor of defendants, the court, referring to the declaration of plaintiff’s employer, stated: “[I]t is generally accepted in the veterinary profession that any animal may react strangely or dangerously while receiving treatment, regardless of its behavior in the home environment. A veterinarian cannot assume a normally gentle dog will act gently while receiving treatment.”

(Nelson

v.

Hall, supra,

165 Cal.App.3d at p. 712.)

The court concluded that “[a] veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that

any

dog, regardless of its previous nature, might bite while being treated,