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 












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