78 Cal.Rptr.2d 686
G019278 (Super. Ct. No. 731697)Court of Appeal of California, Fourth District, Division Three.
Filed September 30, 1998
Appeal from the Superior Court of Orange County, No. 731697, James Howard Poole, Judge.
Worthe, Shaver Hanson and John R. Hanson for Plaintiff and Appellant.
Spector Cohen, Adrienne D. Cohen and Michael G. Spector for Defendant and Respondent.
Steven Rosenbloom appeals from a summary judgment entered in favor of Hanour Corporation doing business as The Shark Club (the Club) in his personal injury action.
Reef Systems, Inc. (Reef) built and maintained a shark aquarium for the Club. After a shark outgrew its tank, the Club hired Reef to move it. Richard
Barbosa, a Reef principal, brought along his employee, Rosenbloom, to help with the endeavor. Barbosa told Rosenbloom to drain the aquarium. Once this was completed, Barbosa directed Rosenbloom to take off his shoes, enter the tank and grab the shark by its tail as Barbosa held its head. Rosenbloom complied, and as the two began lifting the shark, it suddenly thrashed about. Barbosa let go and the shark spun around, biting Rosenbloom’s arm.
Rosenbloom filed the underlying suit alleging negligence and strict liability. The Club moved for summary judgment, maintaining Rosenbloom’s causes of action were barred under the assumption of the risk doctrine. Rosenbloom requested a continuance, claiming he needed time to take the scheduled depositions of two critical experts who, Rosenbloom claimed, would reveal triable issues of fact necessary to defeat the Club’s motion. The court denied Rosenbloom’s request and granted the summary judgment motion. Thereafter, the court denied Rosenbloom’s Code of Civil Procedure section 1008 petition for reconsideration.
As a general rule, strict liability is imposed upon one who keeps a naturally dangerous animal. (BAJI No. 6.65) Ownership of a human-eating shark would certainly qualify, but liability is not absolute. (See Milwaukee Electric Tool Corp.v. Superior Court (1993) 15 Cal.App.4th 547, 561.) The owner of a naturally dangerous animal may be excused from the usual duty of care: “In cases involving `primary assumption of risk’ — where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury — the doctrine . . . operate[s] as a complete bar to the plaintiff’s recovery.” (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.)
Cohen v. McIntyre (1993) 16 Cal.App.4th 650 is instructive. There a dog bit the veterinarian who was treating it. The court determined the veterinarian’s claims against the dog’s owner were barred
under the doctrine of assumption of the risk. The court first reviewed application of the primary assumption of the risk doctrine in cases involving firefighters. It noted in those cases courts held a person who negligently starts a fire is not liable for an injury sustained by a firefighter who is called to extinguish the blaze. It explained this “firefighter’s rule” is based on the rationale no duty is owed to protect the firefighter from the very danger that he or she is employed to confront. (Id. at p. 654)
The Cohen court decided the rule had correctly been extended “to veterinarians and their assistants who are bitten while an animal under their control is receiving care and treatment [i.e., the veterinarian’s rule].” (Cohen v McIntyre, supra, 16 Cal.App.4th at pp. 654-656.) “The risk of being attacked or bitten in the course of veterinary treatment is an occupational hazard which veterinarians accept by undertaking their employment and are in the best position to guard against by taking the necessary precautions.” (Id. at p. 655, relying on Nelson v. Hall (1985) 165 Cal.App.3d 709
[veterinary assistant bitten while holding dog before operation].)
The court then held, “[I]t is apparent that this case falls within the `primary’ category of assumption of the risk. . . . [The] . . . veterinarian was injured during the course of treating an animal under his control, an activity for which he was employed and compensated and one in which the risk of being attacked and bitten is well known. Thus, this is a classic situation where a defendant’s ordinary duty of care i negated due to the nature of the activity and the relationship of the defendant to the plaintiff. (Cohen
v. McIntyre, supra, 16 Cal.App.4th at p. 655, fn. omitted, original italics.) In other words, the veterinarian, like the firefighter, cannot recover for injures arising out of the very conditions he or she was hired to confront. The rationale is persuasive in this case.
The Club recognized a certain expertise was necessary for the dangerous task of handling a shark. Accordingly, it hired Reef, a known expert in the field, to do the work.
Certainly shark bites were Reef’s occupational hazard. And like the firefighter and veterinarian, no duty is owed to protect the shark
handler from the very danger that he or she was employed to confront. Under the circumstances, the Club is not liable as a matter of law.
The judgment is affirmed. The Club shall recover its costs on appeal.
Wallin, Acting P. J., and Rylaarsdam, J., concurred.
Keeton, Torts (5th ed. 1984) § 76, p 542.)