BILL ANALYSIS �
AB 265
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Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 265 (Gatto) - As Amended: March 12, 2013
SUBJECT : Local Government Liability: Dog Parks
KEY ISSUE : Should a local public entity that owns and operates
a dog park be immune from civil liability for any injury or
death resulting solely from the actions of a dog in THE dog
park?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill would grant immunity to a local
public entity that operates a dog park for any damages that
result solely from the actions of a dog in the dog park.
According to the author, liability costs constitutes "one the
largest barriers to small cities and counties from being able to
afford a dog park." Although existing state law makes the owner
of a dog liable for any injuries caused by the dog in a public
place, the authors and supporters of this bill contend that if
the victim of a dog bite or attack could not recover damages
from the dog owner, he or she may look to the deeper pockets of
the host city or county for compensation. Although a local
public entity is arguably already immune from liability under
the California Tort Claims Act (Government Code Section 810 et
seq.), many local governments and special districts believe that
this bill will provide greater certainty and permit them to
provide an important community service without exposing
taxpayers to the costs of litigation. This bill is supported by
several cities, counties, and local districts, and the
associations that represent them. In order to address concerns
that the immunity granted might be too broad, the author
recently amended the bill to specify that the local entities
would only be immune from injuries caused solely by the dog and
that the bill would not be construed to affect a local entity's
liability for creating or maintaining dangerous conditions on
public property. While the Government Tort Claims Act may
already provide immunity to local public entities for such
injuries, the author and supporters maintain that only express
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immunity will cause more local entities to establish more dog
parks. There is no known opposition to this bill.
SUMMARY : Provides that a local public entity that owns or
operates a dog park shall not be liable for injury or death of a
person or pet resulting solely from the actions of a dog in a
dog park. Specifically, this bill :
1)Provides, notwithstanding any other law, that a city, county,
city and county, or special district that owns or operates a
dog park shall not be held liable for injury or death of a
person or pet resulting solely from the actions of a dog in
the dog park.
2)Specifies that the above provision shall not be construed to
otherwise affect the liability of a city, county, city and
county, or special district for creating or maintaining
dangerous conditions of public property, as specified.
EXISTING LAW :
1)Makes the owner of a dog civilly liable for the damages
suffered by any person who is bitten by the dog while in a
public place or lawfully in a private place, as specified,
regardless of the former viciousness of the dog or the owner's
knowledge of such viciousness. (Civil Code Section 3342.)
2)Provides, except as otherwise provided by statute, that a
public entity is not liable for an injury, whether such injury
arises of an act or omission of the public entity or a public
employee or any other person. (Government Code Section 815.)
3)Provides that a public employee is liable for injury caused by
his or her act or omission to the same extent as a private
person. However, a public employee is not liable for an
injury resulting from his or her act or omission where the act
or omission was the result of the exercise of discretion
vested in him or her. (Government Code Sections 820 and
820.2.)
4)Provides that a public entity is liable for injury caused by a
dangerous condition of its property if the plaintiff
establishes that the property was in a dangerous condition at
the time of the injury, that the injury was proximately caused
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by the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of injury
which was incurred, and either (a) a negligent or wrongful act
or omission of an employee of the public entity within the
scope of his or her employment created the dangerous
condition; or (b) the public entity had actual or constructive
notice of the dangerous condition and had sufficient time
prior to the injury to have taken measures to protect against
the dangerous condition. (Government Code Section 835.)
COMMENTS : This bill seeks to protect cities, counties and
special districts that operate a dog park from liability for any
injury or death caused by a dog bite or attack in the dog park.
Existing law already makes the owner of a dog liable for damages
suffered by any person bitten or attacked by a dog in a public
place, even where the owner had no knowledge prior to the bite
or attack that the dog was vicious. Notwithstanding the dog
owner's liability, the author contends that "a bite victim who
is unable to recover costs from the owner of the pet which
caused the damage can turn to the host city or county looking
for additional remuneration." If the litigant is successful,
the author reasons, limited public resources will be used to pay
damages that should have been paid by the dog's owner. As a
result, the author contends, local official must decide whether
to provide a useful service to local pet owners "at the risk of
taxpayer dollars intended for other programs." This bill will
not affect a local entity's liability for creating or
maintaining dangerous conditions on public property, and it
would only grant immunity where the injury resulted solely from
the actions of the dog.
Existing Governmental Immunity : Government Code Section 815,
which essentially codifies the common law rule of governmental
immunity, already provides that a public entity is not liable
for injuries caused by its acts or omissions, unless liability
is expressly provided for by another statute. Public employees,
on the other hand, are liable for injuries caused by their acts
or omissions to the same extent as a private person (Government
Code Section 820), and the public entity is, subject to certain
exceptions, required to defend that public employee and pay any
judgment if the injury was done in the scope of employment
(Government Code Section 825). Public employees are not,
however, liable for any damages caused by an act or omission
exercised in the discretion vested in them. (Government Code
Section 820.2.) In short, one could make a case that local
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public entities are already immune from liability for an injury
caused by a dog in a dog park.
If Express Immunity is Unnecessary, Is it Nonetheless Useful ?
The Committee is not aware of any instances in which a local
public entity in California has been sued for an injury caused
by a dog in a dog park, though the author notes the example of a
dog park in the City of Sonoma that almost closed, in part,
because the private association that operated the dog park on
land leased from the city could not afford liability insurance.
The many letters in support of this bill - most from local
public entities and their respective associations - vigorously
maintain that a public entity would be liable, even though none
cite any example of such a lawsuit ever arising. Nonetheless,
the associations writing in support of this bill contend that
fears of potential liability make some of their members hesitant
about establishing dog parks, and that these local entities
would be more likely to create dog parks if there were an
express exemption in state law.
As the author and supporters correctly note, this would not be
the first time that the Legislature has granted express immunity
to a local public entity for injuries sustained in a publicly
maintained park. For example, in 1999 the Legislature amended
Health & Safety Code Section 11580 to grant liability protection
to cities and counties for injuries sustained by persons using
recreational skateboard parks. In 2011, SB 264 removed a sunset
and extended this immunity indefinitely. Skateboarding, unlike
taking a dog to a dog park, has certain inherent dangers and
under the law passed in 1999 local governments are required to
post signage and maintain certain conditions in their skate
parks; therefore, the skateboard park legislation may not be an
entirely apt comparison to this bill. However, a Judicial
Council report that was required by the earlier skateboard park
legislation concluded that the number of local governments that
created skateboard parks increased greatly after the 1999
legislation was enacted. Whether the legislation was the cause
of this increase is uncertain, but this fact may suggest that
providing express immunity from liability - even if such
immunity is already provided by the general governmental
immunity statute - will give local public entities additional
comfort and certainty to establish dog parks that provide an
important service for dogs and their owners.
ARGUMENTS IN SUPPORT : The California Special Districts
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Association (CSDA) argues that this bill will "protect taxpayers
from civil liability due to dog-inflicted injuries incurred at a
public dog park." CSDA argues further that "the lack of
liability protection in current law can be a hurdle that places
special districts at risk. AB 265 allows these districts to
prudently fulfill the needs of the community without endangering
the taxpayers that fund them." The California State Association
of Counties and several park and recreational districts make
substantially the same argument.
The ASPCA argues that dogs parks provide both dogs and their
two-legged companions the "exercise and socialization [that they
need] to live healthy lives." The Humane Society adds that dog
parks provide an important social and recreational outlook for
both dogs and humans, and it believes that granting express
immunity to local governments will lead to "additional parks
being established in California."
REGISTERED SUPPORT / OPPOSITION :
Support
American Society for the Prevention of Cruelty to Animals
California Association of Joint Powers Authorities
California Association of Recreation and Park Districts
California Special Districts Association
California State Association of Counties
City of Laguna Beach
Civil Justice Association of California
CSAC Express Insurance Authority
Hayward Area Recreation and Park District
Humane Society of the United States
Paw PAC
Pleasant Hill Recreation and Park District
Rancho Simi Recreation and Park District
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
AB 265
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