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Primary Assumption of the Risk and Off Leash Dogs

An interesting case was recently heard by the Court of Appeal which dealt with primary assumption of the risk and a person injured at a park that allowed dogs to roam “off leash.”

In Wolf v. Weber, the plaintiff was injured when an off leash dog collided with her, knocking her to the ground.  Wildcat Gorge Trail in Tilden Regional Park, part of the East Bay Regional Park is governed, in part by East Bay Regional Park District Ordinance 38 Section 801.3 which allows for dogs to be off leash “only when under the owner’s control.” Based on this ordinance, the trial court granted summary judgment for the dog owner, finding that the plaintiff assumed the risk of collision between herself and a dog by entering the park.  Ms. Wolf appealed.

On appeal, the Court of Appeal reversed the lower court arguing that Ms. Wolf had not assumed the risk of collision with the dog.  The Court of Appeal held that the doctrine of primary assumption of risk did not apply. East Bay Regional Park District Ord. 38, § 801.3, authorizes dogs to be off leash only when under the owner’s control. Thus, a person walking his or her dog in parkland regulated by § 8.301 does not, without more, assume the risk of injuries from a collision with another dog. The Court of Appeal went on to hold that, in the current case, there were at least triable issues as to whether the off leash dog was under the owner’s control. There was evidence that the owner was unaware the dog had run toward plaintiff’s party until it was 20 to 30 yards away and plaintiff called out in fear, the dog did not initially respond to the owner’s commands to sit and to return to him, and the dog collided with plaintiff, causing her to fall to the ground, breaking two bones in her leg.

This is an interesting, if not novel, analysis of the application of the primary assumption of the risk doctrine.  Is the Court holding that, the doctrine would apply if the dog had been under the owner’s control at the time of the collision?  It is arguable that such a collision could never happen if the dog was under the owner’s control.

Heiting & Irwin has decades of experience handling personal injury matters, including those that potential deal with the primary assumption of risk doctrine.  If you or a loved one are injured, call us today.

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