Diane Wolf and her husband were walking their dog on a trail in Tilden Regional Park on Oct. 6, 2016, in an area in which dogs are allowed to be off their leashes but only when the dogs are under their owners’ control. Alexander Weber was also walking along the trail with his dog, a Boxer-Argentinian Mastiff mix, and a friend, Martin Cenek. Neither of the dogs was wearing leashes. Both groups were near the end of the trail, and Weber and his friend were approximately 70 feet ahead of Wolf and her husband. Weber’s dog started to lag behind his owner and then turned and headed towards Wolf, her husband, and her dog. Wolf yelled that she was afraid, and Weber tried to get his dog to return by yelling at him to sit. However, his dog did not obey. Weber called him several times, and his dog started to return to him. Wolf was scared and turned around and started to run when she felt something hit her in the back of the knee. She fell and broke two bones in her leg and dislocated her ankle.
No one saw exactly what caused Wolf to fall. Weber said that his dog and Wolf’s dog were circling each other and started to play when Wolf’s dog caused Weber’s dog to fall over and hit Wolf. Cenek said that the two dogs were rolling over together, but he did not see which dog caused Wolf’s fall. A Park District police officer interviewed Weber. During the interview, Weber said that he did not have his dog under his complete control and that his dog was still undergoing training. He was not cited.
Wolf filed a lawsuit against Weber, alleging negligence per se and negligence. She alleged that Weber breached the duty of care to keep his dog under control or leashed for the negligence cause of action. For the negligence per se cause of action, she alleged that Weber violated East Bay Mun. Code § 801.3 by failing to keep his dog under control. Weber filed a motion for summary judgment, arguing the doctrine of the primary assumption of the risk. He argued that Wolf had assumed the risk of her accident by walking her dog on a trail where dogs could be unleashed. The trial court granted the motion for summary judgment and ruled that the doctrine of the primary assumption of the risk applied to off-leash dog trails. The court also dismissed her negligence per se claim, ruling that it did not abrogate the doctrine of the primary assumption of the risk. Wolf appealed.
Issue: Whether Wolf’s claims for negligence and negligence per se were barred under the doctrine of the primary assumption of the risk?
Wolf argued that the doctrine of the primary assumption of the risk did not apply to her accident even though she was walking her dog in an area in which dogs were allowed to be unleashed. She argued that the East Bay Mun. Code § 801.3 abrogated the doctrine because it only allowed dogs to be unleashed if they were under their owners’ control. Weber argued that the primary assumption of the risk doctrine did apply since Wolf chose to walk her dog on an off-leash trail where dogs were likely to encounter each other and run.
Rule: Under the primary assumption of the risk doctrine, people do not owe a duty of care to others to protect them from the inherent risks of dangerous activities.
Weber argued that the primary assumption of the risk doctrine applies to people who choose to walk their dogs on off-leash dog-walking trails. Since the areas allow dog owners to have their dogs off of leashes, Weber argued that their owners do not have a duty to protect others on the trails from the risk of injury from their dogs. Wolf argued that dog owners still have a duty to control their dogs even when they are not on a leash, so the primary assumption of the risk doctrine does not apply.
In California, dog owners are strictly liable when their dogs bite others on public property or while the victims are lawfully present on private property. However, strict liability rules do not apply when dogs injure people in other ways. When someone is injured by a dog but is not bitten, the person will need to prove that the dog’s owner was negligent to recover damages. Proving dog owner negligence requires the victims to prove that the owners had a duty of care and that they breached the duty, resulting in injury and harm to the victims. Since Wolf was not injured by a dog bite but was instead injured by being knocked down by a dog, she was required to prove that Weber was negligent instead of pursuing a strict liability claim for her injuries.
In considering whether the assumption of the risk doctrine applies to walking a dog on a leash-optional dog trail, the court began by noting that the doctrine has been applied to some recreational activities in addition to sports. While the doctrine is a complete defense against claims, it does not bar recovery when the injury occurs because of a risk that is not inherent in the activity. Courts have the power to determine which risks are an inherent part of different activities. The court then reviewed East Bay Mun. Code § 801.3 to consider whether choosing to walk on the leash-optional trail meant that Wolf assumed the risk of being injured by a running dog.
Under § 801.3, dog owners are allowed to walk their dogs on the trail without a leash. However, the owners must have a leash available for the dog and must keep the dog under control at all times. The ordinance provides examples of when a dog is under its owner’s control, including coming back when called and when the owner has the dog within his or her sight. A dog is not considered to be under an owner’s control when it injures a person directly or indirectly by its activities or when they touch or jump on other people without their invitation. The court pointed out that the ordinance that allows dogs to be in the park without a leash also mandates that the owners must maintain control of their unleashed dogs at all times. It found that the assumption of the risk doctrine did not apply to Wolf’s injuries.
The court reversed the trial court’s ruling and sent the case back to the lower court for further proceedings. It also ordered that Wolf should recover her costs on appeal.
Get legal help from the Steven M. Sweat Personal Injury Lawyers
While California’s dog bite statute does not provide strict liability for injuries caused by dogs through activities other than biting, people may still recover damages if they can prove that the dogs’ owners were negligent. People who have been injured by dogs may want to get help from an experienced personal injury lawyer in Los Angeles at the Steven M. Sweat Personal Injury Lawyers. Call us today at 866.966.5240.