Franks v. Holloway.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-NOV-2023
08:05 AM
Dkt. 64 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

NO. CAAP-XX-XXXXXXX

SHELBY RHO FRANKS; JAMES PAUL FRANKS; AND BRANDY LEA FRANKS,
Plaintiffs-Appellants, v.
DESTINI HOLLOWAY,
Defendant/Cross-Claim Plaintiff/Cross-Claim Defendant-Appellee,
and
PAUL JASON SPAULDING,
Defendant/Cross-Claim Defendant/Cross-Claim Plaintiff/
Cross-Claim Plaintiff-Appellee,
and
JAYNE R. NAGANUMA; KRYSTYN CENDROWSKI; KALA SINGSON,
Defendants/Cross-Claim Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; ROE "NON-PROFIT" CORPORATIONS 1-10;
AND ROE GOVERNMENTAL ENTITIES 1-10, Defendants,
and
PAUL JASON SPAULDING, Third-Party Plaintiff-Appellee,
v.
VCA ANIMAL HOSPITALS, INC., Third-Party Defendant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-0188)

NOVEMBER 28, 2023

LEONARD, PRESIDING JUDGE, HIRAOKA AND MCCULLEN, JJ.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY LEONARD, J.

This case arises out of a dog bite injury suffered by

an employee at a veterinary clinic, after a dog was turned over

to a veterinarian and clinic staff members for medical

examination. We hold that Hawaii's primary assumption of risk

doctrine bars a veterinarian and/or veterinary staff from

recovering damages from a dog owner for a dog bite sustained on

the job when the dog is in the care, custody and control of the

veterinarian and/or veterinary staff, and not the dog's owner.

The inquiry is a legal one, not a factual one, based on the

objective risk of handling of a dog, separated from the dog's

owner, in a medical setting. Under the circumstances of this

case, the Veterinarian's Rule barred the dog owner's normal duty

of care, and thus the plaintiffs cannot support a claim of

negligence against the dog owner.

Plaintiffs-Appellants Shelby Rho Franks (Shelby), James

Paul Franks, and Brandy Lea Franks (collectively, the Franks)

appeal from the March 4, 2019 First Amended Final Judgment in
Favor of Defendant Paul Jason Spaulding and Against [the Franks],

and Dismissing All Other Claims Filed Herein (Amended Final

Judgment) entered by the Circuit Court of the First Circuit

(Circuit Court).1 The Franks also challenge the Circuit Court's

March 1, 2017 Order Granting Defendant Paul Jason Spaulding's

Motion for Summary Judgment (Order Granting Summary Judgment).

1
The Honorable Bert I. Ayabe presided.

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I. BACKGROUND

A. Background Facts2

Defendant-Appellee Paul Jason Spaulding's (Spaulding's)

dog Primo (Primo), an American Staffordshire Terrier (a type of

pit bull), was not able to control when he urinated, and his

urine was discolored. Primo was not behaving like himself and

"was sluggish and moping around the house." Spaulding scheduled

an appointment for Primo at VCA Waipahu Animal Hospital (VCA) for

a possible urinary tract infection. When making the appointment,

Spaulding requested a muzzle for Primo from VCA. On November 1,

2014, Spaulding took Primo to VCA for his appointment. Primo was

collared and leashed while at VCA.

On November 1, 2014, Shelby was on her third day of

work at VCA as a part-time kennel attendant. Shelby's duties

were "to maintain the kennels and provide medications to the

patients, among other light duties."

Spaulding and Primo were instructed to wait in the

waiting room of VCA. Primo urinated in the waiting room and

Shelby was asked to clean up the mess. Primo barked and whined

while Spaulding held Primo back so Shelby could clean.

Kala Singson (Singson), a VCA employee, escorted

Spaulding and Primo to an examination room. While Singson asked

Spaulding questions about the visit, Primo smelled and licked

Singson's hand. Singson left the examination room and returned

with Veterinarian Destini Holloway (Dr. Holloway), an employee of

2
The factual background is based on the exhibits attached to the
Franks's opposition to Spaulding's motion for summary judgment.

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VCA. Primo growled and barked at Dr. Holloway. Dr. Holloway

exited the room, removed her coat, and re-entered the examination

room. Primo continued growling and barking at Dr. Holloway.

Dr. Holloway provided Spaulding with a cloth muzzle

which Spaulding placed on Primo. Primo continued to growl with

the muzzle on. Dr. Holloway determined that Primo's aggressive

actions were protective behavior and recommended to Spaulding

that Primo should be removed from Spaulding's presence. Either

Dr. Holloway or Singson checked the muzzle for snug fit. Singson
took Primo's leash from Spaulding. Dr. Holloway instructed

Spaulding to return to the VCA waiting room, which he did.

Dr. Holloway and Singson led Primo from the examination

room to a back treatment area. Dr. Holloway and Singson

attempted to restrain Primo and get him to a lateral position for

urine collection. Shelby was in the room preparing to take a

different dog on a walk.

Shelby saw Dr. Holloway and Singson having difficulty

restraining Primo. Shelby asked if she could help. Shelby was

told to hold Primo's back legs while Singson restrained Primo's

front legs and head. While Dr. Holloway prepared a sterile

catheter, Primo continued to struggle and escaped from the

muzzle. Shelby was instructed to let go of Primo. Primo turned

and bit Shelby's left arm. "[Primo] was locked and [shook]

Shelby's arm for about 15 seconds." Singson left and got

Spaulding from the waiting room.

Spaulding grabbed Primo by the leash and harness and

got Primo off of Shelby. Krystyn Cendrowski (Cendrowski) was a

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lead technician and employee supervisor who was present in the

treatment area during the incident. Cendrowski took Shelby to

the kennel sink to assess Shelby's wounds and tended to her

injuries. A VCA employee called the paramedics and Shelby was

transported to Queen's Medical Center - West Oahu. Shelby

suffered serious injuries to her left arm which required

emergency surgery and additional surgeries. Prior to the

incident involving Shelby, Primo had never bitten any other

person, dog, or animal. Prior to the incident involving Shelby,
Primo had been treated multiple times at different animal

hospitals, but it was his first time being treated at VCA.

B. Procedural History

On February 4, 2015, the Franks filed a complaint for

negligence against Dr. Holloway. On March 25, 2015, Dr. Holloway

filed an answer to the complaint.

On September 29, 2015, the Franks filed a first amended

complaint asserting negligence claims against Dr. Holloway and

Spaulding. On October 22, 2015, Dr. Holloway filed a cross-claim

for indemnification and contribution against Spaulding. On

February 2, 2016, Spaulding filed a cross-claim for

indemnification and contribution against Dr. Holloway.

On October 27, 2016, the Franks filed a second, two-

count, amended complaint asserting negligence claims against Dr.

Holloway, Jayne R. Naganuma (Naganuma),3 Singson, and Cendrowski,

and a second negligence count against Spaulding.

3
Naganuma was the hospital manager for VCA.

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On November 1, 2016, Spaulding filed a cross-claim for

indemnification and contribution against Holloway, Naganuma,

Cendrowski, and Singson. Also on November 1, 2016, Spaulding

filed a third-party complaint asserting three counts of

indemnification and contribution against VCA Animal Hospitals,

Inc. (VCA Animal Hospitals).

On November 28, 2016, Spaulding filed a motion for

summary judgment on the second amended complaint. Spaulding

argued that the Franks's claims against him are barred, as a
matter of law, by the doctrine of primary assumption of risk.

More specifically, Spaulding argued that veterinarians and their

staff members assume the risk of being bitten or otherwise

injured by an animal during treatment, and that Shelby was

working in her capacity as a veterinarian's assistant at VCA,

where Primo was being treated, and she was bitten and injured by

the dog when the treating veterinarian and staff were trying to

care for the dog.

Spaulding further argued that the Franks failed to
state a claim against him for which relief can be granted insofar

as Hawaii Revised Statutes (HRS) § 663-9 (2016) is inapplicable

under the circumstances of this case, citing Hubbell v. Iseke, 6

Haw. App. 485, 727 P.2d 1131 (1986).

In opposition, the Franks argued that, under HRS § 663-

9, the owner of a dog that causes damages to any person is liable

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for those damages "if he is found to be negligent." The Franks

further argued that their action against Spaulding was
based upon his negligence in: (1) failing to maintain
supervision and control over his growling, barking pit bull
or to remove it from the situation where it could bite
someone; and (2) placing a muzzle on his pit bull in such a
manner so as to allow the muzzle to fall off and allow the
pit bull to attack and maul [Shelby].

The Franks argued that there were genuine issues of

material fact for a jury to decide on its allegations of

negligence, and that Spaulding's arguments concerning primary

assumption of risk would require a "rewrite" of HRS § 663-9.1
(2016) and should be rejected.

A hearing was held on January 23, 2017, and the matter

was taken under advisement. A minute order was issued

thereafter, and on March 1, 2017, the Circuit Court entered the

Order Granting Summary Judgment. The order stated, in relevant

part:
Viewing the evidence in the light most favorable to
the non-moving party, the Court finds that there is no
genuine issue as to any material fact and Defendant
Spaulding is entitled to judgment as a matter of law. The
Court finds that the dog was not under the care, custody or
control of Defendant Spaulding at the time of the incident.
Plaintiffs' claims against Defendant Spaulding are barred by
the primary assumption of risk doctrine, and Plaintiffs have
failed to state a prima facie case of negligence against
Defendant Spaulding. Thus, Defendant Spaulding's Motion for
Summary Judgment is granted.

On April 3, 2017, Spaulding filed a notice of dismissal

without prejudice of his claims against VCA Animal Hospitals.

On March 21, 2018, the Circuit Court entered an order

dismissing all of the Franks's claims in the second amended

complaint against Dr. Holloway as all claims against Dr. Holloway

were discharged in bankruptcy.

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On April 11, 2018, the Franks filed a notice of partial

dismissal of all claims against Naganuma, Cendrowski, and

Singson.

On May 8, 2018, the Circuit Court entered a judgment in

favor of Spaulding and against the Franks but failed to

specifically identify the claims on which the Circuit Court

intended to enter judgment and failed to expressly dismiss all

other claims. After a temporary remand from the Intermediate

Court of Appeals, on March 4, 2019, the Circuit Court entered the

Amended Final Judgment which resolved all claims as to all

parties.

II. POINTS OF ERROR

The Franks raise four points of error on appeal,

contending that the Circuit Court erred in finding and concluding

that: (1) there were no genuine issues of material fact; (2)

Spaulding was not liable because the care, custody, and control

of his dog had been transferred to the VCA at the time of the

incident; (3) the Franks's claims against Spaulding were barred

by the primary assumption of risk doctrine; and (4) the Franks

failed to state a prima facie case of negligence against

Spaulding.

III. APPLICABLE STANDARDS OF REVIEW

The appellate court reviews "the circuit court's grant

or denial of summary judgment de novo." Querubin v. Thronas, 107

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Hawai#i 48, 56, 109 P.3d 689, 697 (2005) (citation omitted). The

Hawai#i Supreme Court has often articulated that:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light
most favorable to the party opposing the motion.

Id.
Questions of statutory interpretation are questions of law
to be reviewed de novo under the right/wrong standard.

Our statutory construction is guided by the following well
established principles:

[When construing a statute,] our foremost
obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. And we must read statutory language in the
context of the entire statute and construe it in a
manner consistent with its purpose.
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used
in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning
of the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their
true meaning. Moreover, the courts may resort to
extrinsic aids in determining legislative intent. One
avenue is the use of legislative history as an
interpretive tool.
[The appellate] court may also consider the
reason and spirit of the law, and the cause which
induced the legislature to enact it to discover its
true meaning.

Lingle v. Hawai#i Gov't Employees Ass'n, AFSCME, Local 152 ,
107 Hawai#i 178, 183, 111 P.3d 587, 592 (2005) (internal
quotation marks, brackets, and ellipses omitted and block
quote format changed).

Kapuwai v. City & Cnty. of Honolulu, 119 Hawai#i 304, 308-09, 196

P.3d 306, 310-11 (App. 2008), vacated in part on other grounds,

121 Hawai#i 33, 211 P.3d 750 (2009).

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IV. DISCUSSION

A. The Franks's Strict Liability Argument

The Franks argue that HRS § 663-9, Hawaii's dog bite

statute, imposes strict liability on dog owners for injuries

caused by their dogs. HRS § 663-9 reads as follows:
§ 663-9 Liability of animal owners. (a) The owner or
harborer of an animal, if the animal proximately causes
either personal or property damage to any person, shall be
liable in damages to the person injured regardless of the
animal owner's or harborer's lack of scienter of the vicious
or dangerous propensities of the animal.
(b) The owner or harborer of an animal which is known by
its species or nature to be dangerous, wild, or vicious, if
the animal proximately causes either personal or property
damage to any person, shall be absolutely liable for such
damage.

"As a general rule, if a party does not raise an

argument at the circuit court level, that argument will be deemed

to have been waived on appeal[.]" Hawaii Ventures, LLC v. Otaka,

Inc., 114 Hawai#i 438, 500, 164 P.3d 696, 758 (2007) (quoting

Kemp v. State of Hawai#i Child Support Enf't Agency, 111 Hawai#i

367, 391, 141 P.3d 1014, 1038 (2006). Here, in opposition to

Spaulding's summary judgment motion, the Franks argued that there

was a genuine issue of material fact with respect to Spaulding's

negligence; they did not argue strict liability.4

However, even if the Franks had timely argued strict

liability should be applied under HRS § 663-9, this argument is

without merit. This Court has previously analyzed both the text

and the legislative history of HRS § 663-9 and determined that

the statute does not mandate that strict liability applies to dog

4
Count 2 of the Second Amended Complaint, which stated the Franks's
claims against Spaulding, alleged that Spaulding is liable to them under HRS
§ 663-9 as well as for violation of common law duties, but did not allege
strict liability.

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bite cases. See Hubbell v. Iseke, 6 Haw. App. 485, 491, 727 P.2d

1131, 1135 (1986) (holding "[t]he legislative history of HRS

§ 663-9 renders Plaintiffs' argument that dog owners are strictly

liable for injuries caused by their dogs untenable.").
HRS § 663–9(a) merely eliminates the necessity to
prove "scienter" as an element of an animal owner's
negligence. It is not necessary to prove an animal owner's
knowledge of his animal's "vicious or dangerous
propensities." Strict liability is imposed by subsection
(b) only on the owner of an animal which is "known by its
species or nature to be dangerous, wild or vicious." HRS
§ 663–9 does not clearly and unambiguously preclude strict
liability on the part of a dog owner for injuries inflicted
by his dog. However, the legislative history of HRS § 663–9
indicates that strict liability is not imposed on dog
owners, because dogs are not dangerous, wild or vicious by
species or nature.

. . . .

Thus, under the statute, persons suffering injury
caused by an animal must still prove negligence on the part
of the animal's owner in order to make the owner liable for
the injury. The injured person must prove duty, breach of
duty, and damages[.]"

Id. at 489-90, 727 P.2d at 1134-35.

After this court's decision in Hubbell, the Hawai#i

Legislature had ample opportunity to amend HRS § 663-9 and create

strict liability for dog owners. The Hawai#i Supreme Court has

stated that "[w]here the legislature fails to act in response to

our statutory interpretation, the consequence is that the

statutory interpretation of the court must be considered to have

the tacit approval of the legislature and the effect of

legislation." State v. Hussein, 122 Hawai#i 495, 529, 229 P.3d

313, 347 (2010) (internal quotation marks and citation omitted).

Therefore, we conclude the Circuit Court correctly used

negligence as the basis for considering potential liability in

this case.

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B. Common Law Defenses

The Franks argue that the legislature intended HRS

§ 663-9.1 to provide the only defenses for dog owners when an

injury is caused by their dogs.5 On this basis, the Franks

contend that Spaulding is barred from raising common law

defenses, including primary assumption of risk.

HRS § 663-9.1 was enacted in 1980, after being

introduced as part of S.B. 2501-80, the same bill as HRS § 663-9.

See 1980 Haw. Sess. Laws Act 218, § 3 at 366-67.
SECTION 3 of this bill, as amended by your committee, sets
out exceptions to any civil liability, which includes
absolute liability.

. . . .

These exceptions are not intended to be exclusive as far as
common law liability is concerned. In fact, they are
probably included in the common law already. These
exceptions are the ones your Committee feels are most
important. The exceptions are exclusive as far as absolute

5
HRS § 663-9.1 states in pertinent part:

§ 663-9.1 Exception of animal owners to civil liability.
. . . .

(b) Notwithstanding sections 663-1 and 663-9, any
owner or harborer of an animal shall not be liable for any
civil damages resulting from actions of the animal occurring
in or upon the premises of the owner or harborer where the
person suffering either personal or property damage as a
proximate result of the actions of the animal is found by
the trier of fact intentionally or knowingly to have entered
or remained in or upon such premises unlawfully.
(c) Notwithstanding sections 663-1 and 663-9, any
owner harborer of an animal shall not be liable for any
civil damages resulting from actions of the animal where the
trier of fact finds that:
(1) The animal caused such damages as a proximate
result of being teased, tormented, or otherwise
abused without the negligence, direction, or
involvement of the owner or harborer; or
(2) The use of the animal to cause damage to person
or property was justified under chapter 703.

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liability is concerned since the liability is absolute
unless an exception is provided.

Conf. Comm. Rep. No. 42-80, in 1980 House Journal, at 1095, Conf.

Comm. Rep. No. 36-80, in 1980 Senate Journal, at 958-59 (emphasis

in original).

The legislative history is clear. The legislature only

intended that the HRS § 663-9.1 exceptions be exclusive for cases

involving the strict liability of certain animal owners. See HRS

§ 663-9(b) (establishing absolute liability for damages

proximately caused by "an animal which is known by its species or

nature to be dangerous, wild, or vicious"). HRS § 663-9.1 was

not intended to be an exclusive list for cases involving a dog

owner's negligence. Accordingly, common law defenses are

available, and the Circuit Court did not err in allowing

Spaulding to raise defenses not enumerated in HRS § 663-9.1.

C. Claims Barred by Primary Assumption of Risk

1. The Veterinarian's Rule

The Franks argue that the primary assumption of risk

doctrine should not be applied in this case because Shelby was an

inexperienced and untrained part-time worker who did not

subjectively assume the risk of injury. The Franks also argue

that Shelby could not have known that the muzzle would slip off.

Spaulding argues that primary assumption of risk is an

appropriate defense and what has been coined the Veterinarian's

Rule should be applied in conjunction with Hawaii's primary

assumption of risk doctrine.

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The supreme court has explained:
The "primary" sense of implied assumption of risk emerged,
along with the global doctrine itself, out of the common law
action of a servant against his master. Used in its primary
sense, assumption of risk describes the act of a plaintiff,
who has entered voluntarily and reasonably into some
relation with a defendant, which plaintiff knows to involve
the risk. It is an alternative expression of the
proposition that a defendant owes no duty to a plaintiff[.]

Yoneda v. Tom, 110 Hawai#i 367, 371, 133 P.3d 796, 800 (2006)

(quoting Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 35, 837 P.2d

1273, 1290 (1992) (emphasis omitted).

In Hawai#i, the primary assumption of risk doctrine has
been applied to sports-related injuries. See Foronda ex rel.

Estate of Foronda v. Haw. Int'l Boxing Club, 96 Hawai#i 51, 66,

25 P.3d 826, 841 (App. 2001) (holding primary implied assumption

of risk was a complete defense where defendant's conduct was an

inherent risk of the sporting activity). The doctrine has also

been used as the basis for the Fireman's Rule, which was adopted

based on considerations of public policy. See Thomas v. Pang, 72

Haw. 191, 197, 811 P.2d 821, 825 (1991) (holding that the

Fireman's Rule bars a professional firefighter from recovering

damages from a private party for injuries sustained during the
course of putting out a fire).

"The inquiry into what constitutes an inherent risk is

an objective one, and must be, for the vagaries of prior

knowledge or perception of risk would undermine the doctrine's

underlying policy that the law should not place unreasonable

burdens on the free and vigorous participation in sports."

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Yoneda, 110 Hawai#i at 374, 133 P.3d at 803 (quoting Foronda, 96

Hawai#i at 67, 25 P.3d at 842) (internal quotation marks and

brackets omitted).

In adopting the Fireman's Rule, the supreme court held

that "[d]anger is inherent in a fire fighter's work and the fire

fighter is trained and paid to encounter hazardous situations[.]"

Thomas, 72 Haw. at 197, 811 P.2d at 825. Furthermore, "the

potential for structural collapse is an inherent risk of fire

fighting, and one which fire fighters are trained to anticipate.

It is common knowledge that burning buildings collapse, and the

risk of that occurrence cannot be termed hidden or

unanticipated." Id. at 199, 811 P.2d at 826 (quoting Kreski v.

Modern Wholesale Elec. Supply Co., 415 N.W.2d 178, 190 (Mich.

1987) (internal quotations and ellipses omitted).

Other states have adopted the Veterinarian's Rule based

on similar rationale. For example, in Nelson v. Hall, 165 Cal.

App. 3d 709 (Cal. Ct. App. 1985), a California appellate court

held that the principles of primary assumption of risk in the

Fireman's Rule applies to veterinarians. The Nelson court

concluded that:
A veterinarian or a veterinary assistant who accepts
employment for the medical treatment of a dog, aware of the
risk that any dog, regardless of its previous nature, might
bite while being treated, has assumed this risk as part of
his or her occupation. The veterinarian determines the
method of treatment and handling of the dog. He or she is
the person in possession and control of the dog and is in
the best position to take necessary precautions and
protective measures. The dog owner who has no knowledge of
its particular vicious propensities has no control over what
happens to the dog while being treated in a strange
environment and cannot know how the dog will react to
treatment. A dog owner who does no more than turn his or
her dog over to a qualified veterinarian for medical

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treatment should not be held strictly liable when the dog
bites a veterinarian or a veterinary assistant while being
treated.

Id. at 715 (emphasis omitted).

The Veterinarian's Rule has been applied to similar

situations, including dog groomers and kennel workers. See

Jordan v. Lusby, 81 S.W.3d 523 (Ky. Ct. App. 2002) (holding that

a dog groomer, like all other professions involving the care of

animals, assumed the risk of being bitten by the dog when the

groomer accepted the dog for grooming); see also Priebe v.

Nelson, 140 P.3d 848 (Cal. 2006) (holding the kennel worker

assumed the risk of being bitten when the dog was in the care,

custody, and control of the kennel); Lundy v. Stuhr, 363 S.E.2d

343 (Ga. Ct. App. 1987) (holding that assumption of risk barred

recovery for a male kennel attendant who ignored signs on cage

door that the dog had a propensity to bite females).

The Franks argue that the California case law requires

plaintiffs to knowingly assume the danger the dog will bite.

However, in Priebe, the California Supreme Court directly

addressed the issue:
Although the Nelson court reported several facts probative
of the plaintiff's subjective appreciation of the risk of
being bitten while she assisted in the medical treatment of
the dog that bit her, we do not read the decision as placing
principal reliance on those facts as the basis for the
veterinarian's rule announced therein. As we subsequently
explained in Knight, a plaintiff's subjective appreciation
of the risks involved is no longer relevant to the question
whether the defense of primary assumption of risk applies.
Knight makes it clear that the inquiry is a legal and not a
factual one and entails scrutiny of objective factors having
to do with the nature of the activity engaged in by the
defendant, and the relationship of the plaintiff and the
defendant to that activity.

Priebe, 140 P.3d at 1123 n.2 (citations omitted).

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Here, Shelby's employment at VCA required her to work

with dogs receiving medical treatment. The lack of training or

subjective awareness that a muzzled dog could bite does not

affect the objective test as to the inherent risk that handling

dogs away from their owners in a medical setting could be

unpredictable and lead to injury. In this instance, Shelby had

objectively assumed the inherent risk of a possible dog bite as

part of her employment at a veterinary clinic.

2. Public Policy Considerations

"A finding that the doctrine of primary assumption of

risk applies in any given factual context is, in essence, a

determination, reached as a matter of law, that the defendant

should be excused from the usual duty of care based on some

clear, overriding statutory or public policy." Priebe, 140 P.3d

at 853 (citing Neighbarger v. Irwin Indus., Inc., 882 P.2d 347

(Cal. 1994)).

In Priebe, the California Supreme Court articulated

three public policy reasons in support of the Veterinarian's

Rule. First, "veterinarians, their trained assistants, and those

in similarly situated professions (e.g., dog groomers, kennel

technicians) are in the best position, and usually the only

position, to take the necessary safety precautions and protective

measures to avoid being bitten or otherwise injured by a dog left

in their care and control." Id. at 860.

Second, "veterinarians, their trained assistants, and

those in similarly situated professions (e.g., dog groomers,

kennel technicians) enter into contractual relationships with dog

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owners and receive compensation for the services they provide,

which services, by their very nature and design, include the safe

care and handling of dogs left in their charge." Id. (emphasis

omitted).

Finally, the Priebe court cited a Louisiana case which

applied the "risk-utility balancing test" and concluded that "the

utility of boarding services provided by a veterinarian to care

for animals while the owner is away outweighs the risk and

gravity of harm threatened by the dog[.]" Id. (citing Dubois v.

Economy Fire & Cas. Co., 715 So.2d 131, 134 (La. Ct. App. 1998).
Extending the veterinarian's rule as a bar to personal
injury actions by kennel workers who are bitten or injured
by a dog while on the job will therefore further serve the
policy of encouraging dog owners to avail themselves of the
services of licensed commercial dog kennels, without the
threat of liability and lawsuits for injuries caused by
their dogs' conduct hanging over their heads, conduct they
are in no position to guard against or control once the dog
is surrendered to the kennel for boarding.

Id. at 860-61.

With these policy considerations in mind, the Priebe

court held that the Veterinarian's Rule applies "where the dog

owner has completely relinquished the care, custody, and control
of his or her dog to a . . . professional trained to care for and

safely handle dogs, and the dog owner is therefore not in a

position to supervise or prevent any conduct on the part of the

dog." Id. at 859.

We conclude that these sound policy considerations are

consistent with Hawaii's primary assumption of risk doctrine and

are applicable here.

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3. Care, Custody, and Control

The Franks argue that HRS § 663-9 does not allow the

owner of a dog to transfer liability to a temporary custodian and

that legislative action is necessary to allow a dog owner to

transfer liability to a veterinarian or someone else who assumes

the care, custody, and control of a dog. The Franks do dispute

that care, custody, and control of Primo had been transferred to

Dr. Holloway and the VCA staff when Shelby was injured.

Although there is no definition of "owner" or

"harborer" in the statute, the purpose of HRS § 663-9 is as

follows:
The legislature finds that recent court decisions allow a
dog his "first bite" before an owner can be held liable for
injuries caused by the dog, while at the same time holding
an owner liable for injuries caused to a trespasser attacked
by a dog, even if such injuries occur on the private
property of the dog owner. The legislature finds both
holdings unacceptable. In the first case, innocent public
utility employees, visitors, and others legally on a
property often go without a remedy. In the second case,
numerous state residents who keep dogs or other animals for
protection against the rising crime rate (which the
legislature herein specifically finds to exist) are hampered
in using an effective means of crime prevention.

Act 218, 1980 Haw. Sess. Laws 367 § 1 at 366.

The court decisions referred to by the legislature were

two premises liability cases, Pickard v. City and Cnty., 51 Haw.

134, 452 P.2d 445 (1969), and Farrior v. Payton, 57 Haw. 620, 562

P.2d 779 (1977). In Pickard, the supreme court held that an

occupier of land has a duty to use reasonable care for all

persons reasonably anticipated to be on the premises. 51 Haw. at

135, 452 P.2d at 446. Following this rule, in Farrior, the

supreme court held that dog owners may be found liable for

injuries sustained by trespassers when they fell off a rock wall

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to avoid what they feared was an imminent attack by the dog. 57

Haw. at 629-33, 562 P.2d at 785-87.6

Under HRS § 663-9, liability does not just attach to

those who own the animal but also applies to a harborer, someone

who cares for the animal. The legislature did not intend for the

statute to hold owners of an animal exclusively liable for

injuries. As discussed above, nor did the legislature intend for

the statute to negate common law defenses, such as the defense of

primary assumption of risk.

4. Application of the Veterinarian's Rule

The Franks assert that there are genuine issues of

material fact regarding whether Spaulding was negligent in

cropping Primo's ears, using the generic muzzle provided to him

by VCA, or by improperly securing the muzzle. The Franks contend

that Primo's cropped ears altered the shape of his head, and made

it easier for the muzzle to slip off. Finally, the Franks argue

that Spaulding knew or should have known of Primo's dangerous or

vicious propensities based on Spaulding's request for a muzzle

and Primo's barking and growling while in the examination room.

It is undisputed that Spaulding relinquished the care,

custody, and control of Primo to Dr. Holloway and VCA staff at

Dr. Holloway's direction. The Franks offered no evidence that

Spaulding withheld information from VCA staff or misled VCA staff

in any way. The Franks do not argue that Dr. Holloway or VCA

6
For the first time on appeal, the Franks argue that common law
strict liability should be applied in this case because Spaulding knew Primo
exhibited dangerous propensities and required a muzzle to prevent injury.
This argument is waived.

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were unaware that Primo's ears were cropped when they took

control of him. It is undisputed that the muzzle was provided by

VCA, and the muzzle provided by VCA had been checked for snug fit

by either Dr. Holloway or Singson.

A muzzle is one way in which those handling dogs guard

against a dog bite. It is sound public policy to encourage dog

owners to provide or request muzzles precisely because animals

could be unpredictable and act differently once out of the

owner's control in the context of veterinary treatment. Once

Primo was taken into the care, custody, and control of Dr.

Holloway, Dr. Holloway, as the licensed veterinarian, and the

technicians, and veterinary assistants at VCA were in the best

position to take necessary precautions and protective measures.

We hold that Hawaii's primary assumption of risk

doctrine bars a veterinarian and/or veterinary staff from

recovering damages from a dog owner for a dog bite sustained on

the job when the dog was in the care, custody, and control of a

veterinarian and/or veterinary staff, and not the dog's owner.

The inquiry is a legal one, not a factual one, based on the

objective risk of handling dogs in a medical setting. Here, the

Veterinarian's Rule barred Spaulding's normal duty of care, and

thus the Franks cannot support a claim of negligence. Therefore,

the Circuit Court did not err in concluding that the

Veterinarian's Rule applied and that the Franks's claims against

Spaulding were barred.

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V. CONCLUSION

For the reasons set forth above, the Circuit Court's

March 4, 2019 Amended Final Judgment is affirmed.

On the briefs:
/s/ Katherine G. Leonard
Roy K.S. Chang, Presiding Judge
Harvey M. Demetrakopoulos,
(Shim & Chang), /s/ Keith K. Hiraoka
for Plaintiffs-Appellants. Associate Judge

Richard B. Miller, /s/ Sonja M.P. McCullen
Patricia Kehau Wall, Associate Judge
(Tom Petrus & Miller, LLLC),
Defendant/Cross-Claim Defendant/
Cross-Claim Plaintiff/Cross-Claim
Plaintiff-Appellee.

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