Greene v. Watts

FILES, J.—

This is an action to recover damages for a dog bite. The jury returned a verdict for defendants, the court denied plaintiff’s motion for a new trial, and plaintiff has appealed from the judgment. The facts in the record most favorable to defendants are as follows:

Plaintiff, who was then 3% years of age, and his brother, age 5, were taken by their grandmother to visit defendants’ home. Defendants (or one of them) owned a male chow dog and a female German shepherd. When the visiting children petted the dogs, Douglas Watts, the 18-year-old son of the defendants, “told them to stay away from the rear end of the dogs.” It does not appear that the children were given any other warning or instruction concerning the dogs, or that any attempt was made by anyone to keep the children apart from the dogs.

Later in the day the two visiting boys were in the yard wrestling with Douglas. Douglas was on his knees and the younger boys were on top of him. The dogs were standing a few feet away. The shepherd was excited but the chow was standing quietly. Plaintiff either fell or climbed off Douglas, and then ran over to the chow and jumped on his back. Douglas called to plaintiff to stop but it was too late. The chow turned and bit plaintiff’s ear.

The complaint originally contained two causes of action, one on the theory of negligence and the other based on Civil Code, section 3342, At the conclusion of plaintiff’s evidence the

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defendants moved for a judgment of nonsuit on the negligence count. Counsel for plaintiff acquiesced, and the court granted the motion. The case was then submitted to the jury solely upon the theory of statutory liability.

Civil Code, section 3342, so far as applicable, provides: “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 owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. ...”

Although the statutory declaration of liability is in its terms absolute, certain defenses have been recognized in the case law. “In adopting section 3342 of the Civil Code, the Legislature did not intend to render inapplicable such defenses as assumption of risk or wilfully invited injury. Therefore those defenses are available in all proper eases.”