BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 265
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 265 (Gatto)
          As Amended June 10, 2013
          Majority vote 
           
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          |ASSEMBLY:  |75-0 |(May 20, 2013)  |SENATE: |39-0 |(June 24,      |
          |           |     |                |        |     |2013)          |
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           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
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            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  








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          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 


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