Section 3342 allows a person to recover injuries and damages caused by the dog bite, without having to show that the dog’s owner was careless (“negligent”) in any manner. It creates a system of fault without having to prove any wrongdoing, a form of liability that is known in law as “strict liability.” Section 3342 imposes a duty of care on every dog owner to prevent his or her dog from biting persons in a pubic place or lawfully in a private place so as to prevent dogs from becoming a hazard to the community.
The terms of strict liability mean that the dog’s owner is automatically responsible under any and all situations for the injuries inflicted by the bites of his or her dog. An exception however, for example, section 3342 does not apply if the person bitten was a trespasser on the dog’s owner’s property.
Under the legal doctrine of “primary assumption of the risk,” a veterinarian assumes the inherent risk that any dog, regardless of its apparent docile nature, might bite in the course of treatment. The veterinarian determines the method of treatment and handling of the dog and is in the best position to take the necessary precautions and protective measures. Thus, the risk of being attacked or bitten in the course of veterinary treatment is an occupational hazard that veterinarians accept by agreeing to treat the dog. This so-called “veterinarian’s rule” is justified on the basis that, by contracting for the services of the veterinarian, the dog owner stands in a special position with respect to the veterinarian, who receives special training and compensation for the hazardous work of treating dogs.
This “veterinarian’s rule” has been applied to deny recovery for dog bites to veterinary assistants, animal behavior specialists, dog trainers, kennel workers, and dog groomers, the courts holding that the risk of dog bites during treatment is a specific known hazard endemic to the very occupations in which these persons voluntarily engage. However, if the dog owner knew or should have known of his or her dog’s specific vicious propensity to bite, yet fails to inform the veterinarian, veterinary assistant, groomer, or other person of this fact, the owner can be found to have exposed the veterinarian or other person to an unknown risk, and thereby can be held strictly liable for the veterinarian’s or other person’s injuries.
In addition to Civil Code section 3342, the owner or keeper of a dog can be held strictly liable under traditional legal principles (the “common law”) if he or she knows or has reason to know that his or her dog (or the dog in his or her care, custody, and control) has a propensity to bite humans. In such a situation, the dog may be kept only at the owner’s or keeper’s risk. The owner or keeper will be held liable for damages resulting if the dog bites someone, even though the owner or keeper took all reasonable steps and precautions to prevent the dog from biting a person, that is, that there was no negligence or lack of care on the owner’s or keeper’s part in keeping or attempting to restrain the dog. The heart of the action is the owner’s or keeper’s knowledge that the dog possessed the propensity to bite people. Liability in this type of case is based not on the manner of keeping the vicious animal, but the keeping of it at all with knowledge of its vicious propensities. Note that the common law strict liability rule applies to owners, keepers, and anyone else having custody, care, and control of the dog, while liability under Civil Code section 3342 applies only to dog owners.
