BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 265
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          AB 265 (Gatto)
          As Amended April 29, 2013
          Majority vote 

           JUDICIARY           9-0         LOCAL GOVERNMENT    8-0         
          |Ayes:|Wieckowski, Wagner,       |Ayes:|Achadjian, Levine, Alejo, |
          |     |Alejo, Chau, Dickinson,   |     |Bradford, Gordon,         |
          |     |Garcia, Maienschein,      |     |Melendez, Mullin, Rendon  |
          |     |Muratsuchi, Stone         |     |                          |
          |     |                          |     |                          |
           SUMMARY  :  Provides that a local public entity that owns or  
          operates a dog park shall not be liable for harm to 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 negligence that may otherwise  
            exist under law. 
           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.  

          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.  


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          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.  

          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  
            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.  

           FISCAL EFFECT  :  None 

           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 when 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 officials must decide whether  
          to provide a useful service to local pet owners "at the risk of  
          taxpayer dollars intended for other programs."  

          This bill would provide that a local public entity would not be  
          held liable for injury or death that results solely for the  
          actions of a dog in a dog park.  This bill will not affect a  
          local entity's liability for any negligence that may otherwise  


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          exist under law, such as a public entity's existing liability  
          for maintaining dangerous conditions on the public entity's  

          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, 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.   
          Public employees are not, however, liable for any damages caused  
          by an act or omission exercised in the discretion vested in  
          them.  In short, one could make a case that local public  
          entities are already immune from liability for an injury caused  
          by a dog in a dog park.  

          The Assembly Judiciary 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 and 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  
          (Correa), Chapter 232, removed a sunset and extended this  
          immunity indefinitely.  Skateboarding, unlike taking a dog to a  


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          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. 

          The California Special Districts 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 American Society for the Prevention of Cruelty to Animals  
          argues that dog 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." 

          Analysis Prepared by  :   Thomas Clark / JUD. / (916) 319-2334 

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