BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 265|
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CONSENT
Bill No: AB 265
Author: Gatto (D)
Amended: 6/10/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/18/13
AYES: Evans, Walters, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Anderson
ASSEMBLY FLOOR : 75-0, 5/20/13 - See last page for vote
SUBJECT : Local government liability: dog parks
SOURCE : Author
DIGEST : This bill provides that a public entity, as defined,
that owns or operates a dog park is not 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.
ANALYSIS :
Existing law:
1. 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. (Civil
Code (CIV) Section 3342)
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2. 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
circumstances. (CIV Section 3342.5)
3. 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. (Government Code
(GOV) Section 815)
4. 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
Section 815.2)
5. 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 Section 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 GOV Section 835. (Hayes v. State of
California (1974) 11 Cal.3d 469, 472)
This bill:
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1. Clarifies 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.
2. Provides that the above provision shall not be construed to
affect the liability of a public entity that exists under the
law.
3. Clarifies that "public entity" means all political
subdivisions and public corporations of the state, as defined
in GOV Section 811.2, and includes cities, counties, cities
and counties, and special districts.
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 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
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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 do not 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.
Prior Legislation
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. The 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. The bill failed
passage in the Senate Judiciary Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/18/13)
ASPCA
Association of California Water Agencies
Best Friends Animal Society
California Association of Joint Powers Authorities
California Association of Recreation and Park Districts
California Parks and Recreation Society
California Special Districts Association; California State
Association of Counties
Cities of Burbank, Buena Park, Culver City, Encinitas, Laguna
Beach, and Palm Desert
Civil Justice Association of California
County of Sacramento
California State Association of Counties Excess Insurance
Authority
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Hayward Area Recreation and Park District
Humane Society of the United States
League of California Cities
PawPac
Pleasant Hill Recreation and Park District
Rancho Simi Recreation and Park District
State Humane Association of California
ARGUMENTS IN SUPPORT : According to the author:
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.
ASSEMBLY FLOOR : 75-0, 5/20/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
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Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Jones,
Levine, Linder, Lowenthal, Maienschein, Mansoor, Medina,
Melendez, Mitchell, Morrell, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez,
Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting,
Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada,
John A. Pérez
NO VOTE RECORDED: Holden, Jones-Sawyer, Logue, Vacancy, Vacancy
AL:k 6/19/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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