BILL ANALYSIS Ó
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
(more)
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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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