Two recent court decisions in different states may signal judicial reassessment of the long-accepted position that public agencies and animal-control officials are immune from liability in dog-attacks resulting from ‘failure to exercise expected law-enforcement duties.' The inability to respond to all calls is directly related to the fact that animal-control agencies have historically been grossly underfunded and understaffed in the midst of rising demands for service.
West Virginia State Supreme Court Reverses Lower Court Decision, as “Wrongly Dismissed”
The West Virginia State Supreme Court on September 27, 2013, reversed a lower court’s decision that Dreama Bowden should not be allowed to amend her complaint and prove that the Monroe County Commission and a Dog Warden are responsible for the 2009 death of a man who was attacked by neighborhood dogs, the Charleston Gazette reports.
According to the high court's memorandum decision, before Bowden could amend her complaint and prove the Dog Warden was not immune to being sued, the circuit court wrongly dismissed it.
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The Supreme Court opines in its summary: “At a minimum, further discovery is necessary to determine precisely what the county policies were with regard to taxation, licensing, and registration and whether Ms. Green [dog warden] failed in any of her ministerial duties in that regard.”
Dreama Bowden, a Linside woman whose husband died a week after an attack by several Pit Bulls known to be a menace in the community, appealed the Monroe County Circuit Court ruling that Bowden “failed to make a valid claim that the Monroe County Commission and others were not immune from liability under state law.”
Bowden alleges wrongful death and the failure of the Commission and Dog Warden Patricia Green to collect taxes on [license] the pit bulls. Her complaint also contended that Green failed to patrol the county and seize dogs that didn’t have a valid registration tag.
On November 27, 2009, Lowell Bowden was taking his daily walk when he was attacked by several Pit Bulls that were running loose.
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The complaint by Dreama Bowden, Lowell’s widow, said the county had been contacted previously about “a pack of wild and vicious pit bulls terrorizing their neighborhood in Monroe County.” Green told the family she would “take care of” the problem" and an unspecified citation was issued to the dogs’ owners.
The complaint said conversations with Green “surely would rise to lull Mr. Bowden into a false sense of security or induce him to relax vigilance or forego other avenues of protection.”
The complaint also said the Commission and Dog Warden Green were expected to exercise their law-enforcement duties.
The commission and other defendants claimed they were immune under the West Virginia Governmental Tort Claims and Insurance Reform Act and the state public-duty doctrine.
Bowden’s complaint said the act has exceptions for negligence, but commission attorney Wendy Greve contended the negligence claims were futile.
Washington State Verdict Upheld in Pit Bull Attack; County Found 42% Responsible
The Washington State Court of Appeals has upheld a Pierce County jury’s verdict that awarded $2.2 million in damages to a Gig Harbor woman who was mauled by her neighbors’ pit bulls nearly six years ago, reports the News Tribune on August 13.
Sue Gorman, the victim in the attack, had appealed the 2011 verdict, as had Pierce County.
The County was found 42 percent at fault for the mauling on the basis that its animal-control officers did not do enough to rein in one of the dogs despite prior complaints. County attorneys countered at trial and on appeal that the county had no duty to act on those complaints.
Gorman was found to be 1 percent at fault by the jury, although she was the victim sitting in her home when attacked.
In a split decision issued on August 13, an appellate panel for Division II upheld the verdict, which assigned the remaining 57 percent responsibility for the attack to the owners of the dogs – Betty and Tank – that mauled Gorman, according to the News Tribune.
The pit bulls entered Gorman’s house through the open door Aug. 21, 2007, killed one her dogs and then attacked her when she attempted to stop the attack. She was bitten multiple times and required several surgeries.
Justices Joel Penoyar and Marywave Van Deren decided the county, despite its arguments to the contrary, had a duty to initiate a process to determine whether the one of the dogs that attacked Gorman was potentially dangerous after receiving numerous complaints about it.
Gorman’s attorney had argued at trial that the Pit Bull, Betty, would have been locked up if the County had initiated that process.
“If the county was made aware of a likely potentially dangerous dog, it had a duty to evaluate the dog to determine if it was potentially dangerous,” Penoyar wrote in the majority opinion.
Penoyar wrote that although he and Van Deren were “sympathetic to Gorman’s argument” that she bore no responsibility, the jury was right to find her partially at fault, because she left a sliding-glass door into her home open despite knowing Betty and Tank were known to run loose in the neighborhood, the News Tribune reports.
Justice Lisa Worswick dissented from the majority opinion in regard to the county, stating “Read in its entirety with each word placed in context, the ordinance clearly authorized – but did not require – the county or its designee to classify potentially dangerous dogs.”