Griffiths v. Schafer

Birdsong, Presiding Judge. Kerry Schafer, a veterinary technician, sued Arthur Griffiths, the owner of an Akita dog who attacked Schafer while she was attempting to place a collar around him. The trial court denied the dog owner’s motion for summary judgment, and he appeals. Held: In Lundy v. Stuhr, 185 Ga. App. 72, 73 (363 SE2d 343), this Court held that a kennel attendant assumed a known risk that a dog “might bite” and thus assumed the risk of a dog bite when opening the animal’s cage to retrieve his water bowl. In that case, a sign was placed outside the cage door with stickers stating the dog “doesn’t like girls,” was an “escape artist” and “will bite.” Lundy, a male, was [561] assigned to attend that dog and had done so for several days before he was severely bitten. He testified he had been taught how to act in a “fluid” way so as not to provoke tendentious dogs. While reaching for the dog’s water bowl, Lundy saw the dog coming toward him but apparently took no protective action and continued to reach for the water bowl. When the dog arrived near Lundy, Lundy stood up and put his left arm up, and the dog attacked, inflicting numerous severe bite wounds. The question we addressed in that case was whether Lundy assumed the risk of a dog bite, “thus eliminating] any issue of liability in the Stuhrs for exposing Lundy to a ‘vicious’ dog.” Id. at 73. We held: “It is in the common knowledge of the members of society that even domestic animals, when startled, are prone to defend themselves by biting. It is an unwise person who approaches an unknown dog and makes gestures toward that dog without first ascertaining the propensities of the dog. That such is common knowledge is manifested in this record by Lundy’s concession that he is aware that all dogs, large or small, may bite. It was for this reason that he received special training how to handle dogs and how especially to handle large dogs because of their ability to inflict serious injury.” Id. at 73-74. We affirmed the summary judgment to the dog owner in Lundy, on the basis of the general doctrine of assumption of risk by workers in certain professions: to wit, that ordinarily there is no duty to give warning to the members of a profession against generally known risks in that profession, and there need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession. We concluded that Lundy was well aware this dog could attempt to escape from his cage, and “[w]hile Lundy sought to limit the implication that the dog would bite females, the sign prominently displayed on the exterior of the cage simply stated the dog ‘Will bite.’ ” Id. at 74. This logically “would require Lundy to exercise special caution” with this dog, but when Lundy saw the dog moving toward him, he did not speak soothingly or withdraw but ignored the moving dog until it was at the door, and then Lundy suddenly stood up and raised his left arm. We held that Lundy went into the situation with his eyes wide open; that he saw the whole picture and had the opportunity to measure the risk; and that he was under no compulsion to enter the cage and thereafter ignore the movement of the dog. In Lundy, “the veterinarian voluntarily entered into a contract for care of the Stuhrs’ dog, with full knowledge of the risk, and informed his employee via the posting of signs on the dog’s run. Knowledge of the danger was apparent and the veterinarian and his assistant acquiesced in it by undertaking care of the dog” (Emphasis supplied.) Id. at 75. The plaintiff in this case makes strong attempts to distinguish [562] the facts in this case from those in Lundy. She admits she had worked for eight years as a dog handler in six different veterinary clinics, had specifically dealt with Akita dogs in the past, and knew they were aggressive and unpredictable. She had personally seen this dog’s aggressive behavior, and she knew Akitas could be violent or aggressive, as she had “seen it in the breed” before this incident. She knew this dog had a tendency to “get a little out of hand” and that he “became agitated and started growling and showing his teeth and [jumped off the table]” while the staff attempted to give him shots in the past. During that earlier incident, the dog went to a corner “and wouldn’t let any of [the attendants] get near him,” and if anyone approached the dog, he growled and acted as if he were going to bite. Despite her knowledge of these facts, however, she contends there are issues of fact whether there was a notation on the dog’s chart that he “may bite,” even though the veterinarian himself testified there was such a notation highlighted in pink. She also contends there is a big difference between a notation that a dog “may bite” and that he “will bite,” as was the case in Lundy. We fail to discern a dispositive distinction between a, notation that a dog “may” bite or that he “will” bite, such that in the latter case a veterinary attendant handling such dog may assume the risk of being bitten while in the former case she may not assume the risk. The risk of being bitten, if it exists at all, must be assumed by the handler to be potentially the same in both instances. With specific knowledge of the aggressive propensities of this particular breed of dog, and of this particular dog, Schafer voluntarily attempted to place a collar on him. Assumption of the risk in certain professions refers to the risk that the situation is potentially dangerous; it is not necessary to the assumption of the risk that she acted negligently, as Lundy perhaps did in his sudden movement in the Lundy case. Assumption of the risk is a matter of knowledge of the danger and intelligent acquiescence in it. Id. at 75. We find it significant that, as in Lundy, the veterinarian voluntarily entered into a contract for the care of Griffiths’ dog with full knowledge of the Akita breed’s violent and aggressive potential. So did the attendant. As we said in Lundy, every adult is presumed to be endowed with normal faculties, both mental and physical. Id. at 74. No evidence has been presented to us that Schafer was compelled or forced to do this work or to put a collar on this particular dog, beyond her ability and prerogative as an adult to refuse. It is significant to this decision that the care of dogs necessarily involves, as said Judge Deen in his dissent in Lundy, both good dogs and bad dogs. Schafer assumed the risk of dealing with this “bad dog” beyond any genuine issue of material fact. We specifically note that we do not in this case establish that [563] there is an immutable, absolute assumption of risk by veterinary employees in handling animals. The provisions of OCGA § 4-8-30 that “the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog” does not impose absolute liability on the owner of a dog who has bitten before. OCGA § 4-8-30 means that if any person is liable for such bite, it is the owner, and not a government official. Each case depends on its facts. In general, veterinary employees know that practically any dog will bite in certain circumstances and that particularly violent and aggressive breeds are more likely to bite and even to inflict severe wounds. Such employees are either trained to handle such cases, or being adults, may leave them alone. But there may come a case where, for example, veterinary employees have never dealt with a particular dog and are actively misled by an owner about its tendencies, or there may be a case involving a “demon dog” (see Lundy, dissent) whose propensities for violence extend far beyond any risk such employees may ever be deemed to assume in their employment. This is not such a case. Accordingly, we find the trial court erred in denying summary judgment to the defendant dog owner in this case. Judgment reversed. Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ, concur. Beasley, C. J., and McMurray, P. J, dissent.