Opinion
C.A. No. 04C-09-262-FSS.
Submitted: June 13, 2006.
Decided: September 27, 2006.
Upon Defendant's Motion for Summary Judgment — GRANTED.
Joseph M. Jachetti, Esquire, Kenneth R. Schuster Associates, PC, Wilmington, Delaware, Attorney for Plaintiffs.
Robert K. Pearce, Esquire, Ferry Joseph Pearce, PA, Wilmington, Delaware, Attorney for Defendants.
OPINION AND FINAL ORDER
This is Defendant's summary judgment in a dog bite case. Plaintiff is a veterinarian. Plaintiff turned away as she started treating Defendant's dog, and the animal attacked. Now, Defendant contends that a treating veterinarian cannot recover from a dog's owner under those circumstances. Basically, Defendant relies on common law defenses, such as assumption of the risk. Plaintiff counters that Delaware's dog bite statute, 7 Del. C. § 1711, allows her to go forward.
Technically, there are two plaintiffs and two defendants. The primary parties, however, are the injured veterinarian, Nancy Jo Brady, V.M.D., and Cathy White. For clarity, the court will proceed as if Dr. Brady and Ms. White were the opposing parties.
After oral argument on June 13, 2006, the court granted summary judgment from the bench. The ruling spared the parties further trial preparation. At Plaintiff's request, the court agreed to reduce its ruling to writing. Thus, this decision supplements the bench ruling, and it includes the final order.
I.
Summary judgment is granted if, after the court examines the full record, there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. The court accepts all undisputed facts and the non-movant's version of any disputed facts. From those facts, the court draws all rational inferences favoring the non-moving party. In effect, the court presumes the party opposing summary judgment will present its best case at trial, and if it then concludes the non-moving party's case will fall short, the court must grant the motion.
Super. Ct. Civ. R. 56.
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992).
Id. at 100.
Marro v. Gopez, Del. Super., C.A. No. 92C-01-102, Silverman, J. (Jan. 18, 1994) (Mem. Op.).
II. Viewing the evidence in the proper light, the facts are:
Plaintiff began treating Defendant's dog, Kato, a German Shepherd, in 1995. In September 2002, Defendant contacted Plaintiff for treatment of a possible gunshot wound to Kato's leg. The following day, Plaintiff and her assistant arrived in front of Defendant's house in a "mobile veterinarian office," a converted RV.Although Plaintiff was not told that Kato had recently attacked a child, she was aware that Kato had once "nipped" a technician delivering medicine to Defendant's home. Additionally, Plaintiff had heard allegations from Defendant's neighbors, who are also Plaintiff's clients, that Kato was a biter. And, in her patient's notes, Kato was described as a "nervous dog. . . . He's not a dog that you should walk right up to." Therefore, based on the undisputed evidence, a reasonable juror would have to conclude that when Plaintiff saw Kato on the day he attacked her, Plaintiff knew, or should have known, Kato was aggressive, a biter, and possibly wounded.
The way it happened was Defendant entered the mobile veterinarian office, holding the dog on a leash. Plaintiff tried to see the wound while Defendant "brush[ed] the fur over [Kato's] mid back area. . . ." Plaintiff asked Defendant "typical questions" such as if Kato had shown any other symptoms such as "vomiting, diarrhea, coughing, [or] sneezing." Meanwhile, Plaintiff could not see the wound. So, Plaintiff requested and was given Defendant's permission to clip some fur.
With Defendant holding the leash and as Plaintiff's assistant retrieved a muzzle, Plaintiff turned her back. She stepped to a supply cabinet a few feet away. As Plaintiff reached for clippers, Kato lunged, biting Plaintiff's left calf until Defendant could "pull him off" using the leash.
III.
Delaware's dog bite statute, 7 Del. C. § 1711, includes five exceptions, not including one for a treating vet. The threshold legal question, therefore, is whether the dog bite statute prevents a dog's owner from asserting the common law assumption of risk defense against a treating veterinarian. If the defense is still viable against a veterinarian, the court must decide whether, based on the facts, it knocks out Plaintiff's complaint.
IV. A.
Although the court has considered the relationship between Delaware's dog bite and premises guest statutes, it has not construed the dog bite statute for a veterinarian bitten while treating a dog. The dog bite statute provides:
25 Del. C. § 1501; McCormick v. Hoddinott, 865 A.2d 523, 529 (Del.Super.Ct. 2004).
The owner of a dog is liable . . . for any injury . . . to person . . . that is caused by such dog, unless the injury . . . was caused to . . . a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting or abusing the dog.
7 Del. C. § 1711.
Obviously, the veterinarian was neither trespassing, nor committing a crime. She also was not teasing, tormenting or abusing the dog. Kato attacked moments after the veterinarian had begun examining him for treatment. Hence, the veterinarian argues that she has a cause of action against Kato's owner.
Before the statute's enactment, the common law controlled dog bite cases.
The rule of common law was that the owner of a vicious dog, having knowledge of its dangerous propensities, is bound to keep him secure at his peril; and if anyone, without fault on his part, is injured by the animal, the owner will be liable for all damages sustained.
F. Giovannozzi Sons, Inc. v. Luciani, 18 A.2d 435, 436 (Del.Super.Ct. 1941). See also Warner v. Chamberlain, 30 A.638, 639 (Del.Super.Ct. 1884) ("[W]here animals have been domesticated, — for example, dogs, — the owner of them is only liable in case he knows they are accustomed to bite, or have a ferocious, savage disposition or spirit, which domestication has not subdued. It is not necessary, in order to . . . recover for the bite of the dog, that [plaintiff] should prove that another person has been bitten. . . .").
The owner's liability primarily turned, therefore, on whether the owner knew the dog was dangerous. Thus, this was the so-called "one free bite" rule.
The common law also provided an assumption of risk defense. That defense provides that a person who voluntarily takes a risk, and who understands or should understand the danger associated with that risk, cannot recover for resulting damages. Put another way: "If the plaintiff knows of the existence of risk, appreciates the danger of it and nevertheless does not avoid it, [s]he will be held to have assumed the risk and may not recover. . . ." "In determining whether there is evidence of an assumption of the risk by plaintiff, the standard to be applied is a subjective standard peculiar to the plaintiff." That concept is primary assumption of the risk. Here, the idea is that a veterinarian should generally know that some animals react badly to treatment, especially if they are wounded. As presented above and discussed below, Plaintiff is a professional who works with animals. Moreover, she undeniably knew, or should have known, that Kato was aggressive, a biter and probably wounded. Thus, when Plaintiff began examining and treating Kato, she assumed the risk that the dog might bite her, and in the process, Plaintiff relieved Kato's owner of liability for Kato's behavior.
Robinson v. Meding, 163 A.2d 272, 276 (Del. 1960), quoted in Yankanwich v. Wharton, 460 A.2d 1326, 1330 (Del. 1983).
Yankanwich, 460 A.2d at 1330 ( citing Restatement (Second) of Torts § 496D (1965)).
Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992).
Nelson v. Hall, 165 Cal. Rptr. 688, 673 (Cal.Ct.App. 1985) ("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, has assumed this risk as part of his or her occupation.").
What was called secondary assumption of the risk is now subsumed in comparative or contributory negligence. The court assumes, without deciding, that had this case gone to trial, Plaintiff's contributory negligence would also have been an issue. In other words, were the court not holding, as it is, that Plaintiff assumed the risk that Kato would injure her, the jury would have considered that question primarily. Then, if necessary, it would have secondarily considered whether Plaintiff's carelessness led to her injury. For summary judgment purposes, however, the court is only considering the primary assumption of risk defense.
Id.
Restatement (Second) of Torts § 496D cmt. c. (1965) ("If by reason of . . . lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, [s]he will not be taken to assume the risk, although it still may be found that h[er] conduct is contributory negligence because it does not conform to the community standard of the reasonable [person]."), quoted in Yankanwich, 460 A.2d at 1330.
The court is not ruling on whether Plaintiff was negligent, which she was. Similarly, Plaintiff's arguments notwithstanding, the court is unconcerned about whether Defendant warned her that Kato had bitten a child. Nor is the court concerned about the way Defendant held Kato's leash before the attack. As to the former, Plaintiff, as a matter of law, should have known she was risking injury, especially where Kato was her wounded patient. There is no evidence Defendant mislead or lulled Plaintiff about Kato's disposition. To the contrary, Plaintiff had actual knowledge about the risk she was taking with Kato. As to the latter, Plaintiff's choosing to leave Kato in Defendant's hands, rather than employ Plaintiff's assistant to muzzle and restrain the dog, did not create an actionable duty of care on Defendant's part.
B.
This brings the court back to the threshold question involving the extent that the common law assumption of the risk defense has been eliminated or changed by 7 Del. C. § 1711. The General Assembly has been enacting laws concerning dogs since at least 1811. Back then, it made owners in New Castle county strictly liable if their dogs killed or wounded any sheep or lamb. The legislature also made it lawful to kill any dog seen to "worry, wound or kill any sheep or lamb." Since then, the enactments mostly have concerned licenses and wardens. Over time, however, dog owners' liability was expanded to cover damage to livestock and poultry.
See State v. Tull, 8 A.2d 17, 19 (Del.Super.Ct. 1939).
Id.
4 Del. Laws, c. 165, § 1 (1811).
See, e.g., 34 Del. Laws, c. 185, § 1 (1925) ("2406 J. Section 49 I. The owner . . . of any dog . . . shall be liable in a civil action to the owner of any live stock or poultry for all damages suffered by such . . . from any dog. . . .").
Finally, in 1998, the 139th General Assembly repealed the old 7 Del. C. § 1711, which concerned owners' liability for damage to livestock and fowl, but not decoys, and passed the new dog bite law. The next General Assembly further amended title 7, chapter 17 by creating the Dog Control Panel, empowered to seize and impound dangerous dogs, and to dispose of them by euthanasia. Thus, the 139th and 140th General Assemblies were occupied with the well-publicized and shocking problems caused by people who were irresponsibly keeping vicious dogs as pets. When applying a statute, the court must carry out the legislature's intent. If a statute is unambiguous, this is easy since the court relies on the words' literal meaning. If the statute is ambiguous, though, the court must rely on statutory interpretation and construction to determine what the legislature meant.
7 Del. C. § 1731.
7 Del. C. § 1732.
7 Del. C. §§ 1735 and 1739.
See, e.g., CDC Special Report: Breeds of dogs involved in fatal human attacks in the United States between 1979 and 1998, JAVMA, Vol. 217, No. 6 (Sept. 15, 2000) (noting that in 1997-1998 at least 27 people, including 19 children, died from dog attacks, which was an increase from previous years). See also Carter v. Metro North Assoc., 255 A.D.2d 251 (N .Y. App. Div. 1998) (noting that due to an alarming increase in fatal dog attacks many jurisdictions have passed legislation regulating dog ownership).
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985). See also Murphy v. Board of Pension Trustees, 442 A.2d 950, 951 (Del. 1982); A P Stores v. Hannigan, 367 A.2d 641, 643 (Del 1976).
Id. See also Keys v. State, 337 A.2d 18, 22 (Del. 1975); Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982).
Id. See also Nigro v. Flinn, 192 A.2d 685, 688 (Del.Super.Ct. 1937); Alfieri v. Martelli, 647 A.2d 52, 54 (Del. 1994).
A statute can be ambiguous if giving it a literal interpretation would lead to an unreasonable, unjust or absurd consequence. This is based on "the presumption that the legislature did not intend an unreasonable, absurd or unworkable result." Therefore, the court is not compelled to give a strict literal meaning to the statute when it would depart from the statute's true intent and purpose. If ambiguity exists, the court is "obliged to give to the language of a statute a plain and sensible meaning having in mind its purpose and intent" and interpret the statute to produce a reasonable result.
Id. at 1246. See also Nationwide Mut. Ins. Co. v. Krongold, 318 A.2d 606, 609 (Del. 1974); Wicks v. State, 559 A.2d 1194, 1196 (Del. 1989); Allstate Ins. Co. v. Gillaspie, 668 A.2d 757, 761 (Del.Super.Ct. 1995); Magill v. North American Refractories Co., 128 A.2d 233, 236 (Del. 1956).
E.I. Du Pont De Nemours Co. v. Clark, 88 A.2d 436, 438 (Del. 1952) ("[A]n irrational, impractical or excessive result presumably could not have been intended by the legislature."). See also Darling Apartment Co. v. Springer, 22 A.2d 397, 402 (Del. 1941) ("Legislative language is not given a strictly literal meaning when it is apparent from competent evidence that legislature had no such meaning in mind.").
Darling, 22 A.2d at 402.
Nigro, 192 A. at 688 (citing Darling, 22 A.2d at 402). See also Coastal, 492 A.2d at 1247 ( citing J.G. Sutherland, Statutes and Statutory Construction § 45.12 (4th ed. 1984)).
Plaintiff has not established that by enacting the current dog bite statute, the legislature meant to repeal long-standing common law defenses, much less to reconfigure the relationship between veterinarians, their patrons, and their insurance carriers. By enacting the dog bite statute, the legislature merely intended to eliminate the old "one free bite" rule. Once the dog bite statute became law, dog owners could no longer avoid liability for dog bites by claiming they were unaware that their animals were vicious. The court will view the law as doing only what needed to be done.
Nelson, 211 Cal. Rptr. at 671-73 (holding that even though California's dog bite statute imposes strict liability for dog owners, assumption of the risk is still aviable defense).
In reading the dog bite statute narrowly, the court appreciates Plaintiff's point that statute contains specific exceptions, not including one for treatment by veterinarians. That supports Plaintiff's view that if the legislature did not mean for the new law to favor veterinarians, it would have said so. The better view, however, is that in the 139th General Assembly's waning moments, the legislature was focused more on the growing wave of innocent people being injured by vicious dogs, and not at all on protecting veterinarians from their patients.
C.
Based on the undisputed facts, presented above, Defendant is entitled to summary judgment based on Plaintiff's assumption of the risk that Kato would bite her. In short, Plaintiff is an experienced veterinarian. She agreed to examine and treat Kato. She had reason to believe Kato was wounded, and she knew Kato's propensities. In fact, Plaintiff's assistant was preparing to muzzle Kato when Plaintiff turned her back to look for clippers. No reasonable juror could conclude from those facts that Defendant was liable for what happened in Plaintiff's mobile office.
V.
For the foregoing reasons and as discussed at oral argument, Defendant's motion for summary judgment is GRANTED.