BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 265 (Gatto)
          As Amended June 10, 2013
          Hearing Date: June 18, 2013
          Fiscal: No
          Urgency: No
          TH


                                        SUBJECT
                                           
                        Local Government Liability: Dog Parks

                                      DESCRIPTION  

          This bill would clarify that a public entity, including a city,  
          county, city and county, or special district, that owns or  
          operates a dog park shall not be held liable for the injury or  
          death of a person or pet resulting solely from the actions of a  
          dog in the dog park.  This bill provides that it shall not be  
          construed to affect the liability of a public entity that exists  
          under the law.

                                      BACKGROUND  

          Dog parks are designated public spaces where dogs are permitted  
          to run freely off-leash, play, and socialize with other dogs.   
          Across the United States, and particularly in California, local  
          governments and special districts are finding that dog parks are  
          integral to the fabric of local communities.  They provide an  
          opportunity for social interaction for both dogs and people, and  
          they allow dogs to get physical and mental exercise, and develop  
          their natural social skills.  According to the Humane Society of  
          the United States:

               In the past the hunting, herding, and guarding roles of  
               dogs provided opportunities for companionship with other  
               dogs and humans, as well as plenty of vigorous exercise.   
               Exercise, in addition to improving the physical health of  
               our dogs, also improves their mental health.  Today many  
               dogs spend a large portion of their day alone and inactive,  
               and the stress of this abnormal lifestyle can result in  
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               many undesirable outcomes: obesity, self-mutilation,  
               digging, chewing, soiling, barking, escaping . . . Dogs are  
               social animals, and those who are allowed to interact with  
               other dogs and people, and taught appropriate behavior in  
               social groups, are better behaved and more likely to be  
               included in other activities with human companions.   
               (Humane Society of the United States, Dog Parks and Their  
               Benefits  [as of June 4, 2013].)

          Dog parks also provide an important recreational outlet for pet  
          owners by bringing together individuals from across the social  
          spectrum who share a common interest in their dogs.  They allow  
          dogs and their owners to strengthen mutual bonds of fealty, and  
          enable people with disabilities, senior citizens, and other pet  
          owners who cannot walk their dogs in their immediate environment  
          to take their pets to an alternate safe location for exercise  
          and play.  For those who don't enjoy interacting with dogs, dog  
          parks help contain the animals in areas away from those in  
          public places who prefer to remain separate, resulting in less  
          dog-related problems elsewhere in the community.

          The supporters of this bill note that, while many local  
          governments and special districts would like to open or expand  
          their dog park offerings, the potential risk of civil liability  
          operates as a disincentive to doing so.  Accordingly, this bill  
          would clarify that a public entity, including a city, county,  
          city and county, or special district, that owns or operates a  
          dog park shall not be held liable for the injury or death of a  
          person or pet resulting solely from the actions of a dog in the  
          dog park.  This bill would not alter the liability of a public  
          entity under state law for acts or omissions related to the dog  
          park.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides, with specified exceptions, that the owner  
          of any dog is 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, regardless of the former viciousness of the dog  
          or the owner's knowledge of such viciousness.  (Civ. Code Sec.  
          3342.)

           Existing law  authorizes the bringing of a limited civil action  
          by person, the district attorney or city attorney against the  
          owner of a dog that has bitten a human being under specified  
                                                                      



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          circumstances.  (Civ. Code Sec. 3342.5.) 

           Existing law  provides that a public entity is not liable for an  
          injury, whether such injury arises out of an act or omission of  
          the public entity or a public employee or any other person,  
          except as otherwise provided by statute.  (Gov. Code Sec. 815.)

           Existing law  provides that a public entity is liable for injury  
          proximately caused by an act or omission of an employee of the  
          public entity within the scope of his employment if the act or  
          omission would have given rise to a cause of action against that  
          employee or his personal representative.  (Gov. Code Sec.  
          815.2.)

           Existing law  provides, except as exempted by statute, 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  
          that either:
               (a) A negligent or wrongful act or omission of an employee  
               of the public entity within the scope of his employment  
               created the dangerous condition; or

               (b) The public entity had actual or constructive notice of  
               the dangerous condition a sufficient time prior to the  
               injury to have taken measures to protect against the  
               dangerous condition.  (Gov. Code Sec. 835.)

           Existing case law  holds that harmful third party conduct, absent  
          some concurrent contributing defect in the property itself, does  
          not constitute a dangerous condition for the purpose of  
          incurring liability under Government Code Section 835.  (Hayes  
          v. State of California (1974) 11 Cal.3d 469, 472.)

           This bill  would clarify that a public entity that owns or  
          operates a dog park shall not be held liable for any injury or  
          death suffered by any person or pet resulting solely from the  
          actions of a dog in the dog park.

           This bill  would provide that the above provision shall not be  
          construed to affect the liability of a public entity that exists  
          under the law.

                                                                      



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           This bill  would clarify that "public entity" means all political  
          subdivisions and public corporations of the State, as defined in  
          Government Code Section 811.2, and includes cities, counties,  
          cities and counties, and special districts.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
               Liability costs are one of the largest barriers preventing  
               small cities and counties from being able to afford a dog  
               park.  Under California law, dog owners are fully  
               responsible for any injuries caused by their pet (CA Civil  
               Code  3342).  However, in practice, 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 and/or county  
               looking for additional remuneration.  If litigants are  
               successful, limited public resources are then used to  
               compensate the individual for their injury.  Local  
               officials, therefore, have to decide whether they are  
               willing to offer a wholesome opportunity for local pet  
               owners at the risk of taxpayer dollars intended for other  
               programs.

               This bill provides explicit protection for cities,  
               counties, [cities and counties,] and special districts from  
               civil liability for any injuries to a pet or person  
               inflicted by a dog at a dog park.  These local entities  
               would still be responsible for proper maintenance of the  
               dog park and would be liable for any injuries relating to  
               the maintenance of the park.

               With no guarantee that they will not be pulled into  
               lawsuits over incidents at dog parks, cities often vote  
               against opening a dog park for their residents.  This bill  
               seeks to give cities and counties the explicit assurance  
               they need that they will not be liable for dog bites if  
               they open a dog park.

          2.  Strict liability for injuries caused by a dog  

          California law imposes strict liability upon the owner of a dog  
          that injures another person.  Civil Code Section 3342 provides,  
          with specified exceptions for military and police dogs, that the  
                                                                      



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          owner of a dog is 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, regardless of the former viciousness of the dog  
          or the owner's knowledge of such viciousness.  In practice, this  
          means that the owner of a dog that causes an injury at a dog  
          park is civilly liable for any and all damages resulting from  
          that injury.  In order for a public entity to be civilly liable  
          for injuries sustained in connection with a dog at a dog park,  
          the public entity would have to engage in some sort of  
          independent tortious act that was a proximate cause of the  
          injury sustained.  Particularly in light of the sovereign  
          immunity granted public entities under California law (see  
          Comment 3), a public entity generally would not be liable for a  
          dog-related injury simply because it was the landowner of the  
          dog park where an injury occurred.  (See Hayes v. State of  
          California (1974) 11 Cal.3d 469 [holding that a public entity is  
          not liable for injuries sustained on public property based on  
          third-party conduct alone].)

          This bill would not disturb the existing allocation of civil  
          liability for injuries caused by dogs.  Rather, it clarifies  
          that a public entity that owns or operates a dog park is not  
          liable for injuries resulting from the actions of a dog in the  
          dog park absent some independent tortious conduct on the part of  
          the public entity.

          3.   Government immunity under the California Tort Claims Act  

          California law generally provides public entities with broad  
          tort immunity that insulates them from civil liability,  
          including liability resulting from injuries caused by a dog at a  
          dog park.  The California Tort Claims Act (Gov. Code 810 et  
          seq.) states that "a public entity is not liable for an injury,  
          whether such injury arises out of an act or omission of the  
          public entity or a public employee or any other person" unless  
          otherwise provided by statute.  (Gov. Code Sec. 815(a).)  Thus,  
          in order to hold a public entity liable for any tort, a  
          plaintiff would first have to identify a specific relevant  
          statute that waived its sovereign immunity and exposed it to  
          liability.  Absent a specific statute that expressly waives  
          sovereign immunity, California's public entities cannot be held  
          liable in tort.

          In the context of potential dog-related injuries occurring at  
          dog parks, there are a number of statutes that may expose public  
          entities to civil liability.  For example, Government Code  
                                                                      



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          Section 835 removes immunity when a public entity maintains its  
          property in a dangerous condition.  This section states that "a  
          public entity is liable for injury caused by a dangerous  
          condition of its property" if the following conditions are met:  
          (1) the property was in a dangerous condition at the time of the  
          injury, (2) the injury was proximately caused by the dangerous  
          condition, (3) 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 employment  
          created the dangerous condition, or (b) the public entity had  
          actual or constructive notice of the dangerous condition a  
          sufficient time prior to the injury to have taken measures to  
          protect against the dangerous condition.  (Gov. Code Sec. 835.)   
          Applied to the context of dog parks, some contributive civil  
          liability would arguably rest where a public entity failed to  
          maintain a fence separating a dog park from other recreation  
          areas, knew that the fence was in a state of disrepair yet  
          failed to repair it, and a child who wandered into the dog park  
          area via the dilapidated fence was injured by a dog.  (See  
          Mercer v. State of California (1987) 197 Cal.App.3d 158 [holding  
          that public entities are generally liable for injuries resulting  
          from substantial, known dangerous conditions of their property  
          under the California Tort Claims Act].)

          Liability against a public entity might also rest when a public  
          entity's employee acts or fails to act in a manner that  
          ultimately leads to a dog-related injury at a dog park.   
          Government Code Section 815.2 removes immunity under certain  
          conditions when an injury proximately results from the act or  
          omission of an employee of a public entity.  That section  
          provides that "a public entity is liable for injury proximately  
          caused by an act or omission of an employee of the public entity  
          within the scope of his employment if the act or omission would  
          have given rise to a cause of action against that employee or  
          his personal representative."  (Gov. Code Sec. 815.2.)  Thus, if  
          a public employee knew of a particular danger at a dog park,  
          such as the regular presence of a dog known to be dangerous, and  
          had a duty to warn park patrons of this known hazard yet failed  
          to do so, the employing public entity might incur some civil  
          liability if an individual were injured by the dangerous dog.   
          Similarly, if an employee knew that a particular dog at a dog  
          park was dangerous and yet induced patrons to visit the park by  
          telling them that the dog was not dangerous, civil liability  
          through the actions of the employee might result.

                                                                      



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          As noted above, this bill does not disturb the existing  
          allocation of civil liability for injuries caused by dogs at dog  
          parks.  Instead, this bill simply makes explicit what is  
          implicit - that a public entity that owns or operates a dog park  
          is not liable for injuries resulting from the actions of a dog  
          in the dog park absent some independent tortious conduct  
          attributable to the public entity.

          4.  Benefits of this bill

           A number of entities supporting this bill identified uncertainty  
          about existing tort liability as an impediment to the  
          construction of dog parks in the State of California.  The City  
          of Burbank, for example, stated that it was "examining the  
          viability of developing" a dog park, but was somewhat ambivalent  
          about opening a park because during recent City Council  
          discussions "the Council raised a concern about liability issues  
          associated with operating a dog park."  Although it does not  
          currently own or operate any dog parks, Burbank noted that "the  
          development of a dog park would be more palatable for the City  
          to pursue if the State Legislature was to adopt the amendments  
          as proposed in this bill."  Similarly, the California  
          Association of Joint Powers Authorities stated that "[w]ithout  
          AB 265, public entities will continue to balk at owning or  
          operating a dog park due to the possibility of high dollar  
          lawsuits being brought against them."

          This bill provides some measure of clarity concerning the  
          potential for incurring civil liability through owning or  
          operating a dog park.  While it does not substantively change  
          existing tort law, the bill would expressly declare that public  
          entities are not liable for the acts of third parties (and their  
          dogs) at dog parks.  By making explicit what is already implicit  
          in existing law, this bill seeks to ease concerns among  
          California's public entities that they lack liability protection  
          in current law from suits over injuries caused by the dogs of  
          dog park patrons.  In so doing, it is possible that this bill  
          could spur the creation of more public dog parks throughout the  
          state.

          Further, by making explicit the fact that current law protects  
          public entities from liability attributable to the tortious  
          conduct of third parties, this bill could potentially bring some  
          financial benefits to public entities that own or operate dog  
          parks.  Explicitly acknowledging that existing immunity  
          provisions in state law apply to public dog parks is likely to  
                                                                      



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          lessen the litigation risk faced by entities that own or operate  
          these parks.  Thus, as the CSAC Excess Insurance Authority  
          points out, this bill may reduce the cost of obtaining liability  
          insurance because it will likely "reduc[e] the costs incurred in  
          the defense of this type of litigation."  Moreover, adding this  
          express immunity to the Government Code would likely push  
          individual litigants in the direction of settling their claims  
          instead of incurring the risk and expense of trial, thereby  
          lowering any uninsured defense cost associated with these suits.


           Support  :  ASPCA; Association of California Water Agencies; Best  
          Friends Animal Society; California Association of Joint Powers  
          Authorities (CAJPA); California Association of Recreation and  
          Park Districts (CARPD); California Parks and Recreation Society;  
          California Special Districts Association; California State  
          Association of Counties (CSAC); City of Burbank; City of Buena  
          Park; City of Culver City; City of Encinitas; City of Laguna  
          Beach; City of Palm Desert; Civil Justice Association of  
          California (CJAC); County of Sacramento; CSAC Excess Insurance  
          Authority; Hayward Area Recreation and Park District; Humane  
          Society of the United States (HSUS); League of California  
          Cities; PawPac; Pleasant Hill Recreation and Park District;  
          Rancho Simi Recreation and Park District; State Humane  
          Association of California

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 2489 (Maddox, 2004) would have provided an exemption from  
          tort liability under Civil Code Section 3342 to any public or  
          private animal shelter that provides an animal for adoption or  
          sale that subsequently attacks another animal or person, if the  
          shelter has procedures in place for the temperament testing of  
          animals, the procedures for temperament testing were followed  
          with respect to the animal, and the animal satisfactorily passed  
          the temperament testing prior to adoption or sale.  This bill  
          died in the Assembly Judiciary Committee.

                                                                      



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          SB 1374 (Rainey, 2000) would have codified existing case law  
          concerning the immunity of an equine activity sponsor for any  
          injury resulting to a participant in the activity, or to the  
          equine animal itself, resulting from the inherent risks of  
          participating in equine activities, for those entities and  
          professionals operating in a tax-exempt capacity.  This bill  
          failed passage in the Senate Judiciary Committee.

          AB 3357 (Ackerman, 1996) would have provided that public  
          entities and public  employees cannot be held liable for an  
          injury caused by a wild animal or insect on open space lands  
          unless the animal or insect is in the possession or control of  
          the public entity or unless the public entity engaged in willful  
          misconduct or gross negligence.  This bill died in the Senate  
          Judiciary Committee.

          AB 1680 (Cortese, 1994) would have created a statutory immunity  
          for public entities from liability resulting from injuries or  
          deaths caused by wild animals in public parks.  This bill failed  
          passage in the Senate Judiciary Committee.

           Prior Vote  :

          Assembly Committee on the Judiciary (Ayes 9, Noes 0)
          Assembly Committee on Local Government (Ayes 8, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)

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