BILL ANALYSIS Ó AB 265 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 265 (Gatto) As Amended June 10, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |75-0 |(May 20, 2013) |SENATE: |39-0 |(June 24, | | | | | | |2013) | ----------------------------------------------------------------- Original Committee Reference: JUD. 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 that a public entity 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 affect the liability of a public entity that exists under law. 3)Specifies that a "public entity" includes, but is not limited to, cities, counties, cities and counties, and special districts. The Senate amendments make clarifying changes, state that nothing in the bill will affect the liability of a public entity that exists under law, and add a definition of "public entity." 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 AB 265 Page 2 employee or any other person. 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, as amended in the AB 265 Page 3 Senate, also states, however, that the bill will not affect the liability of a public entity, arguably making the impact of the bill negligible. 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, and the bill expressly states that nothing in the bill will affect the liability of a public entity. The author and supporters do not cite any instances in which a local public entity in California has been sued for an injury caused by a dog in a dog park, much less found liable. Nonetheless, the associations writing in support of this bill contend that fears of potential liability, real or imagined, 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. Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334 FN: 0001264