I have been the Clark County Washington Hearings Officer hearing Animal Control cases from the County and the City of Vancouver for about 10 years. People often seem frustrated and upset that the government is involved in dog bite, cruelty, and other animal control issues. However, a new decision was issued yesterday in a case involving a local government’s liability for not responding to complaints regarding dangerous dogs. The case is Gorman v. Pierce County, Washington Division II Court of Appeals, 42502-5-II.
Two dogs entered the Plaintiff’s house through an open door and mauled her in her own bedroom. In addition to suing the dog owners, she also sued Pierce County for negligently responding to complaints about the dogs made prior to the attack. Pierce County involved the public duty doctrine and moved to have the complaints dismissed, but the trial court refused. Pierce County and the other defendants were found liable. The court also found that the plaintiff’s actions contributed to her injuries. Pierce County appealed on various grounds.
The appellate court found that Pierce County had a mandatory duty to act. Pierce County has a very similar ordinance to Clark County for determining whether a dog is potentially dangerous. The criteria includes menacing conduct, biting, or otherwise threatening the safety of humans or other animals. The court held that the county had a duty to evaluate a dog to determine if it was potentially dangerous if they had a written statement from a complaintant, a report of a dog bite, testimony from animal control or law enforcement regarding their observation of the dog, or other substantial evidence.
Interestingly the court also found that in deciding to classify a dog, the county could consider prior complaints regarding other dogs belonging to the same owner (see, it really is the owner, not the dog).
Unlike Clark County, Pierce county required confinement of a potentially dangerous dog and could seize the dog if the terms of confinement were not met. Clark County has no particular requirements once a dog is declared potentially dangerous.
One of the attacking dogs in the Gorman case had been reported as threatening humans or animals multiple times, by plaintiff and other people in the neighborhood. The attack that was the subject of the case was very severe and caused the plaintiff serious injuries. The plaintiff’s service dog was killed in the attack.
Pierce County tried to argue that they had no legal duty of care to the plaintiff under the public duty doctrine, which states that a government’s obligation to the public, as opposed to an individual, is not a legal duty of care. This doctrine does have certain exceptions. One of those is the Failure to Enforce exception.
Under this exception, a government’s obligation to the general public become a legal duty to a plaintiff when: (1) government agents who are responsible for enforcing statutory requirements actually know of a statutory violation, (2) the government agents have a statutory duty to take corrective action but fail to do so, and (3) the plaintiff is within the class the statute intended to protect. Gorman at 10. Pierce County argued that the second element was not met, and that it had no statutory duty to take action. The appellate court disagreed.
The court held that an ordinance creates a statutory duty to take corrective action if it mandates a specific action when the ordinance is violated. Gorman at 11. Because the potentially dangerous dog ordinance contained the word “shall”, it created a mandatory directive on the part of Pierce County. “The County or the County’s designee shall classify potentially dangerous dogs.” Pierce County had a duty to at least evaluate the dog. “Pierce County received multiple complaints about Wilson’s dogs but failed to evaluate the dogs’ dangerousness
despite a statute requiring it to act.” Gorman at 13.
It is never easy to tell a dog owner that their beloved Fluffy is potentially dangerous. But it is a duty.