[Nos. 42502-5-II; 42594-7-II. Division Two. August 13, 2013.]
Affirmed.
Mark E. Lindquist, Prosecuting Attorney, and Donna Y. Masumoto, Deputy, for appellant Pierce County.
Bradley D. Westphal (of Lee Smart PS), for appellants Shellie R. Wilson and Zachary Martin.
David P. Lancaster (of Hollenbeck Lancaster & Miller); and Nathaniel Justin Reed Smith and Nancy K. McCoid (of Soha & Lang PS), for appellant Jacqualine Evans-Hubbard.
Michael J. McKasy and Shelly K. Speir (of Troup, Christnacht, Ladenburg, McKasy, Durkin & Speir Inc.), for respondent. AUTHOR: Penoyar, J. Van Deren, J. concurs. WORSWICK, C.J. (dissenting in part).Penoyar
FACTS I. SUBSTANTIVE FACTS II. PROCEDURAL FACTS ANALYSIS I. THE PUBLIC DUTY DOCTRINE [1, 2] [3-6] A. The Public Duty Doctrine Is Not Contrary to Law [7, 8] [9] B. The Failure To Enforce Exception Applies [10-12] [13, 14] [15, 16] The County or the County's designee shall classify potentially dangerous dogs. The County or the County's designee may find and declare an animal potentially dangerous if an animal care and control officer has probable cause to believe that the animal falls within the definitions [of "potentially dangerous dog" 1. The written complaint of a citizen who is willing to testify that the animal has acted in a manner which causes it to fall within the definition of [PCC] 6.02.010[(T)]; or 2. Dog bite reports filed with the County or the County's designee; or 3. Actions of the dog witnessed by any animal control officer or law enforcement officer; or 4. Other substantial evidence. (Emphasis added.) any dog that when unprovoked: (a) Inflicts bites on a human, domestic animal, or livestock . . . (b) chases or approaches a person . . . in a menacing fashion or apparent attitude of attack, or (c) any dog with a known propensity, tendency, or disposition to attack unprovoked or to cause injury or otherwise to threaten the safety of humans, domestic animal, or livestock . . . .» [T]he building official . . . shall make or cause to be made any necessary inspections and shall either approve the portion of the construction as completed or shall notify the permit holder wherein the same fails to comply with this code. Pierce, 161 Wn. App. at 799 (quoting Internal Residential Code (IRC) $ R109.1 (2006)). In response, Yakima County cited other code provisions providing that when an official observes a code violation, he has authority to authorize disconnection or serve a notice of violation. Pierce, 161 Wn. App. at 799 (citing IRC $$ R111.3, R113.2). Division Three held that the code did not create a mandatory duty to take a specific enforcement action. Pierce, 161 Wn. App. at 801. If officials observed a code violation, they had authority--but were not required--to authorize disconnection or serve notices of violation. Pierce, 161 Wn. App. at 799. II. JURY INSTRUCTIONS ON PIERCE COUNTY'S DUTY TO GORMAN [17, 18] The plaintiff Sue Gorman claims that the defendant Pierce County was negligent in one or more of the following respects: (1) failing to classify and control a potentially dangerous dog; (2) failing to protect the public from a potentially dangerous dog; (3) failing to confiscate and confine a potentially dangerous dog. CP at 881. On its face, this instruction describes the claims Gorman presented during the trial, not Pierce County's legal duty. But other instructions correctly explained Pierce County's legal duty. Instruction 15 included the language from former PCC 6.07.010(A): The County or the County's designee shall classify potentially dangerous dogs. The County or the County's designee may find and declare an animal potentially dangerous if an animal care and control office [sic] has probable cause to believe that the animal falls within the definitions [of "potentially dangerous dog"] set forth in [former PCC] 6.02.010[(T)]. The finding must be based upon: 1. The written complaint of a citizen who is willing to testify that the animal has acted in a manner which causes it to fall within the definition of [former PCC] 6.02.010[(T)]; or 2. Dog bite reports filed with the County or County's designee; or 3. Actions of the dog witnessed by any animal control officer or law enforcement officer; or 4. Other substantial evidence. CP at 892. Instruction 17 stated, The Pierce County Code provides that after a dog is declared to be potentially dangerous, the person owning or having care of such dog shall not allow the dog to be unconfined on the premises of such person, or go beyond the premises of such person unless the dog is securely leashed and humanely muzzled or otherwise securely restrained. A potentially dangerous dog in violation of these provisions shall be seized and impounded. CP at 894. Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances. Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances. CP at 883. In addition, the trial court clearly instructed the jury that Pierce County was liable only if it had been negligent by failing to act in one of the ways Gorman claimed. Thus, the instructions required the jury not just to decide whether Pierce County failed to act, but whether the failure was reasonable under the circumstances. Accordingly, we hold that the jury instructions properly stated the legal duty of ordinary care. III. EVIDENCE OF PRIOR COMPLAINTS ABOUT WILSON'S OTHER DOGS [19, 20] [21] IV. GORMAN'S LEGAL DUTY [22, 23] [24] V. EMERGENCY DOCTRINE INSTRUCTION [25, 26] VI. SUFFICIENCY OF THE EVIDENCE [27, 28] [29, 30] [31] VAN DEREN, J. PRO TEM., concurs.WORSWICK (In Part) 1. Interpretation of the Ordinance The County or the County's designee shall classify potentially dangerous dogs. The County or the County's designee may find and declare an animal potentially dangerous if an animal care and control officer has probable cause to believe that the animal falls within the definitions [of "potentially dangerous dog"] set forth in [former PCC] 6.02.010[(T) 1. The written complaint of a citizen who is willing to testify that the animal has acted in a manner which causes it to fall within the definition of [former PCC] 6.02.010[(T)]; or 2. Dog bite reports filed with the County or the County's designee; or 3. Actions of the dog witnessed by any animal control officer or law enforcement officer; or 4. Other substantial evidence. 2. Application of Case Law