BILL ANALYSIS Ó
AB 265
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ASSEMBLY THIRD READING
AB 265 (Gatto)
As Amended April 29, 2013
Majority vote
JUDICIARY 9-0 LOCAL GOVERNMENT 8-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Achadjian, Levine, Alejo, |
| |Alejo, Chau, Dickinson, | |Bradford, Gordon, |
| |Garcia, Maienschein, | |Melendez, Mullin, Rendon |
| |Muratsuchi, Stone | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
property.
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
FN: 0000626
AB 265
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