Cohen v. McIntyre

California Court of Appeal · Torts

TortsNegligenceAssumption of RiskVeterinarian's Ruleprimary assumption of risksecondary assumption of riskno dutyveterinarian's rule

Facts

Warren Cohen, a veterinarian employed by Contra Costa County, examined Suzanne McIntyre's dog Lobo before neutering. When Cohen first touched the dog, Lobo snapped at him, so Cohen required McIntyre to muzzle the dog before he continued the examination. After finishing, Cohen placed the dog on the floor and, without asking for assistance, removed the muzzle, whereupon the dog bit him several times. Cohen alleged McIntyre negligently failed to warn him of the dog's prior biting history and vicious propensities.

Issue

Does primary assumption of the risk bar a veterinarian's negligence claim against a dog owner for bites suffered while treating the dog under his control, where the owner did not volunteer the dog's prior biting history? More specifically, did the owner owe a duty of care absent intentional concealment, misrepresentation, or reckless conduct outside the ordinary scope of seeking veterinary care?

Rule

Under Knight, primary assumption of the risk applies when, because of the nature of the activity and the parties' relationship to it, the defendant owes no duty to protect the plaintiff from a particular risk. In the veterinary-treatment context, the risk of being bitten by an animal under treatment is an occupational hazard inherent in the work, so the owner ordinarily owes no duty to the veterinarian for that risk; liability arises only if the owner engages in intentional concealment or misrepresentation, or conduct so reckless that it falls totally outside the range of behavior ordinarily expected of those obtaining veterinary services. The existence and scope of duty in this setting is a legal question for the court, amenable to summary judgment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, veterinarian Lena Ortiz examined a large mixed-breed dog at the request of its owner, Derek Sloan. The dog growled during intake, so Lena directed a technician to restrain it and continued the exam; when Lena later loosened the restraint to inspect the animal's jaw, the dog bit her hand. Derek had not volunteered that the dog had snapped at neighbors before.

If Lena sues Derek for negligence based on his failure to disclose the dog's prior aggression, which result is most consistent with the governing rule?

Explanation. The majority treats this as primary assumption of risk: because of the nature of veterinary treatment and the parties' relationship to that activity, the owner ordinarily owes no duty to protect the veterinarian from the inherent risk of being bitten by an animal under treatment and under the veterinarian's control. The veterinarian's subjective appreciation of the risk is not the focus. Mere nondisclosure of prior aggression, without intentional concealment, misrepresentation, or extraordinary recklessness, is insufficient. (Derived from Cohen v. McIntyre (n.d.).)