|My article in the NWLawyer|
Yesterday, Division II of the Washington Court of Appeals issued its decision in Hendrickson v. Tender Care Animal Hospital. This case arose when the Plaintiff took her Golden Retriever to the Defendant for neutering and insertion of a microchip. The dog died, and the Plaintiff brought claims of negligent misrepresentation, lack of informed consent, professional negligence, reckless breach of bailment contract, and emotional damages.
Of note is the fact that the Appellate Court upheld the dismissal of the emotional distress claims on the basis that “no Washington court has held that such causes of action exist in the context of loss of a pet.” They went so far as to say “Washington law is clear that a pet owner has no right to emotional distress damages or damages for loss of human- animal bond based on the negligent death or injury to a pet.”
A couple of months ago, I had an out of state attorney lecture me about my “lack of awareness” that courts are now awarding emotional distress damages for the loss of a pet. My response? I was very aware, but I practice in Washington, where that is clearly not the case. The other attorney then wisely agreed to settle.
This case has implications beyond the animal law context, though. The other issue of note is the confusion still surrounding the independent duty doctrine (formerly known as the economic loss rule) in Washington. When I first started practicing, it was fairly common to bring negligent misrepresentation claims when a seller did not disclose problems in real estate sales. That all changed with the Washington Supreme Court’s decision in Alejandre v. Bull, 159 Wn.2d 674. (2007). In that case, the Court held that tort remedies (such as negligent misrepresentation) were not available in actions that were based on economic losses from breach of contracts. Alejandre was a real estate sale misrepresentation case.
That bright line rule hardly seemed fair, and since the Alejandre decision, various “refinements” have been made by the courts. In a case following Alejandre, Eastwood v. Horse Harbor Fund, Inc. 170 Wn.2d 380, the court changed the name of the economic loss rule to the independent duty doctrine because the previous name “gives the impression that this is a rule of general application and any time there is an economic loss, there can never be recovery in tort.” The court held that instead of an absolute bar, the IDD requires the courts to analyze whether there was a breach of a tort duty independent of the terms of the contract.
What was really striking about the Eastwood decision is that the Supreme Court held that lower courts were not to apply the doctrine to tort remedies in various types of contract cases “unless and until this court has, based upon consideration of common sense, justice, policy and precedent, decided otherwise.” In other words, the Supreme Court held that it was up to them to analyze various types of contracts and torts, as the cases came before them, to determine whether or not the IDD applied.
In the Hendrickson case, the court reversed the trial court’s dismissal of the tort claims, and remanded back to the trial court. The reason? “Because our Supreme Court has not specifically approved of the applying of the independent duty doctrine to cases involving veterinary care liability or the torts at issue here.” But what is the lower court supposed to do, in light of the Supreme Court’s admonition that it is up to that court and that court alone to decide whether the IDD applies? I suspect that what the court was really doing was issuing an invitation for Adam Karp, the very able attorney for Ms. Hendrickson, to appeal this decision up to the Washington Supreme Court, who will then decide whether the IDD applies in this context or not.
Sheer confusion. This puts parties in lawsuits involving contracts in the position of always having to appeal all the way to the Supreme Court if that court has not yet made a decision regarding that type of tort in the context of that type of contract. A virtual gold mine for attorneys, but not so good for the clients involved.
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.
Link to the slides for my CLE presentation on April 10
I recently mediated a loan modification for a client, and was amazed at the results that can be obtained under HAMP Tier 2. Prior modification programs did help a lot of homeowners stay in their homes, but the constraints on the prior HAMP programs left a lot of distressed home owners out in the cold. HAMP previously required a 31% payment ratio to income and did not allow for principal reduction. Tier 2 broadens modification terms to allow for up to a 42% ratio to income and, best of all, can include principal reduction for loans that are not held by Fannie Mae or Freddie Mac. The result in my recent mediation showed the power of this program. The homeowner received a substantial principal reduction, a reduced interest rate, and a much, much lower payment. Tier 2 made the difference between being able to stay in the home or losing it to foreclosure. Results like this make me smile!
Interview with Denise about commercial real estate on Jim West’s radio show.
When I started my office, one of my goals was to be paperless, or as paperless as possible.
Five things that I couldn’t live without in my paperless office:
- My Fujitsu ScanSnap 1500. I went to a legal technology seminar and the presenter raved about this thing. He was right. It is fast, has a logical format for saving documents, and is virtually trouble free. After using so called media centers (fax/printer/scanner combos) the Scan Snap was a breath of fresh air. I wish everything in my office worked so well. Continue reading
I met with a very nice couple today who asked me if it was true that “Obamacare” legislation included a 3.8% “real estate sales tax” on all transactions. Apparently, this statement has been making the rounds as a “fact” since the legislation was passed.
I was able to tell them that this is not quite (or not even close) to true. It is correct that the Patient Protection and Affordable Care Act (or “Obamacare”, if you insist) includes a 3.8% Medicare tax on investment income of higher-income households. In 2013, the tax will be assessed on income received as a profit on the sale of investment property, including real property. This could include, among other things, capital gains, dividends, interest payments and net rental income on rental property.
I found the following interesting because of my interest in Animal Law, and because it shows that the waivers we sign when we participate in activities really matter! I have been asked to sign a liability waiver when participating in horseback riding and rafting, among other things.
I have read the actual decision in this case, and quite frankly, if there was ever a justification for invalidating a waiver, they would have found it in this case. There was some pretty obvious negligence on the part of the facility owner; a previous history of attacks; and some statements that could have been construed as misrepresentations to the victim. Nevertheless, the court upheld the waiver.