Champagne v. Spokane Humane Soc.

• Decision Date: 28 May 1987
• Docket Number: No. 7709-8-III,7709-8-III
• Citation: 737 P.2d 1279,47 Wn.App. 887
• Parties: John CHAMPAGNE and Roxie Champagne, husband and wife, as Parents and Guardians of John Douglas Champagne, a Minor; and Roger A. Felice, as Guardian Ad Litem of John Douglas Champagne, Appellants, v. SPOKANE HUMANE SOCIETY and Society for the Prevention of Cruelty to Animals, a Non-Profit Corporation, Respondents.
• Court: Washington Court of Appeals

Page 887

47 Wn.App. 887

737 P.2d 1279

John CHAMPAGNE and Roxie Champagne, husband and wife, as Parents and Guardians of John Douglas Champagne, a Minor; and Roger A. Felice, as Guardian Ad Litem of John Douglas Champagne, Appellants, v. SPOKANE HUMANE SOCIETY and Society for the Prevention of Cruelty to Animals, a Non-Profit Corporation, Respondents.

No. 7709-8-III.

Court of Appeals of Washington Division 3.

May 28, 1987.

Review Denied Sept. 1, 1987.

John H. Loeffler, Olson, Loeffler & Landis, Spokane, for appellants.

Jonathan C. Rascoff, Spokane, for respondents.

MUNSON, Judge.

John and Roxie Champagne brought this action on behalf of their minor son, John, against the Spokane Humane Society for personal injuries resulting from the attack on John by a dog (a pit bull). The trial court dismissed the claim on summary judgment holding the action against the Society was barred by the public duty doctrine.

The Champagnes appeal, contending the trial court erred in granting summary judgment because (1) the public duty doctrine is inapplicable--the Society is not a governmental entity and (2) if the public duty doctrine applies, the circumstances are such that they fall within an exception to the rule. Holding the public duty doctrine applies, we reverse and remand; genuine issues of material fact exist as to whether the Champagnes fall within an exception to that doctrine.

The following facts are undisputed. On February 19, 1982, John Champagne, then age 5, was riding his tricycle in the alley behind his house. A pit bull dog owned by Dale Mason, a neighbor of the Champagnes, brutally attacked John. ¹ As a consequence of the attack, John suffered massive tissue and bone loss to his right foot and ankle, necessitating eight operations. The dog was captured and ultimately destroyed.

At the time of the attack, the Society was under contract with the City of Spokane to supply all animal control services and to enforce the animal regulatory provisions of the Spokane city ordinances. Spokane city ordinance C13835 provides in pertinent part:

Section 1. Dogs at Large. It shall be unlawful for any person to cause, permit, or allow any dog or dogs, owned, harbored, controlled or kept by him, in the City of Spokane, to roam, run or stray away from the premises where the same is or are owned, harbored, controlled or kept ...

* * *

Section 7. Impounding Agency. The Spokane Humane Society, a corporation, is hereby designated and authorized as the agency for the impounding of a dog or dogs as provided in this ordinance and the enforcement of the provisions thereof....

Section 8. Impounding. Any dog or dogs found without a license or running at large in violation of the provisions of this ordinance, may be impounded by the Animal Regulatory Officers of the City of Spokane or officers of the Spokane Police Department or such other persons or agency as may be designated ...

Paragraph 4 of the Society's contract with Spokane states in part: "The Society shall be responsible for the enforcement of all animal regulatory ordinances ..."

Though disputed in part, the affidavits, declarations, exhibits, and pleadings tend to support the remaining facts. Mr. Mason (and his two pit bulls) moved into the Champagne neighborhood in the fall of 1981. Soon after, the Champagnes and other neighbors began complaining to the Society about these dogs roaming unleashed throughout the neighborhood. The Society's records reveal it received many complaints about the pit bulls from September 26, 1981 until February 18, 1982, 1 day prior to the attack. Likewise, the Society's records generated from citizen complaints demonstrate the Society knew the pit bulls' owner (Mr. Mason) resided at N. 4418 Stevens Street.

The Society had been advised of these pit bulls' aggressive natures and vicious propensities. The affidavit of Delia Peters, a neighbor of the Champagnes, states she called the Society to complain about the dogs' "harassment" on at least three separate occasions in January 1982. Her affidavit provides that on one occasion she witnessed the pit bulls threatening a neighbor. On another occasion, she states: "The dogs ... chased and threatened my husband and myself in our yard." Upon registering her complaint with the Society, she claims she was told that pit bulls were not dangerous.

The affidavit of Judy Lacerte, another neighbor, provides: "On one occasion, one of the pit bull dogs forced me to jump inside of my car to avoid being bitten." Her affidavit continues: "The two pit bull dogs were, in my opinion, vicious animals and I was afraid for my safety when I encountered these dogs." She further claims she called the Society four to six times prior to John's attack in order to complain of the dogs' behavior. On one occasion, she was advised she would have to capture the dogs herself before the Society could enforce the leash law. Her affidavit states she was unwilling to attempt the dogs' capture, because of their vicious nature.

Finally, Mrs. Champagne's affidavit provides she called the Society at least ten times, informing it of the pit bulls' vicious natures. The Society's records show she called the day before the attack to complain about the dogs running loose. ² Her affidavit further provides: "I was assured that the Humane Society would patrol the area and apprehend any stray dogs." (Italics ours.) In fact, the dogs were not apprehended until February 20, 1982, the day after the attack when Mr. Mason was ordered to deliver the pit bulls to the Society so they could be quarantined.

The Champagnes contend the trial court erred in dismissing their claim on the basis of the public duty doctrine. Although our Legislature has abolished sovereign immunity except with respect to discretionary acts, RCW 4.92.090 and 4.96.010, a plaintiff suing a governmental entity must still surmount the "public duty doctrine," i.e., where a governmental entity breaches a duty owed to the public generally, rather than a particular individual, no liability may be imposed on that entity for any injury arising from breach of that duty. J & B Dev. Co. v. King Cy., 100 Wash.2d 299, 303-04, 669 P.2d 468, 41 A.L.R. 4th 86 (1983); Taylor v. Stevens Cy., 47 Wash.App. 134, 136-37, 732 P.2d 517 (1987); Honcoop v. State, 43 Wash.App. 300, 308-09, 716 P.2d 963 (1986). Thus, "[t]he 'public duty' rule ... provides that in order for an injured person to recover against a municipality he must show the breach of a duty owed to him as an individual and not merely the breach of an obligation owed to the general public." (Footnote omitted.) 18 E. McQuillin, Municipal Corporations § 53.04(b), at 165 (3d rev. ed. 1984 & Supp.1986). The trial court concluded the Society owed a duty to enforce the animal ordinances to the general public and thus was not liable to the Champagnes as a matter of law.

The Champagnes assert the Society is a private corporation, rather than a public or governmental entity. Thus, the doctrine does not apply. We disagree. Although the Society is incorporated as a private, nonprofit corporation, the City of Spokane has contractually delegated to the Society the authority to enforce the animal regulations of its ordinance. See RCW 16.52.020; Storey v. Seattle, 124 Wash. 598, 602-04, 215 P. 514 (1923). Likewise, the obligations contractually undertaken by the Society are no different than those otherwise owed by Spokane to the general public. Thus, in assuming those animal control duties contractually, the Society is essentially acting as a public entity. See State ex rel. State Humane Society v. Hovey, 159 Wash. 584, 587, 294 P. 258 (1930) (Humane Society "is not organized for the personal benefit of an individual or the personal benefit of any set of individuals, but is organized for the public good, and is in its substance and effect a public corporation."); Storey, 124 Wash. at 602, 215 P. 514 (Humane Society is "a public corporation, created by state law, to enforce its penal laws relating to the regulation of cats and dogs.").

In Spiegler v. School Dist. of New Rochelle, 39 Misc.2d 720, 241 N.Y.S.2d 967 (1962), aff'd, 19 A.D.2d 751, 243 N.Y.S.2d 74 (1963), appeal denied, 13 N.Y.2d 600, 247 N.Y.S.2d 1026, 196 N.E.2d 891 (1964) on similar facts, a minor plaintiff was attacked by dogs. The plaintiff sued the New Rochelle Humane Society, Inc., which had contractually undertaken the enforcement of the New Rochelle animal regulation ordinance, for failure to properly enforce that ordinance's provisions. There, the court stated:

The court finds no great difficulty in holding that [animal control] is governmental in nature. No one except the municipality, or an organization acting under authority given by the municipality, would possess the power or the facilities to perform such a service effectively. No one else would even have a duty to perform the service in the case of animals not privately owned. The protection of the public against marauding animals, whether wild or domestic, is similar in nature to the protection furnished by a police department against the lawless and depraved elements among men. The purpose in either case is the promotion of public safety, which is one of the first functions of government.

Spiegler, at 969.

We agree with Spiegler's reasoning and likewise hold the Society had undertaken to carry out the governmental function of animal control. Accordingly, there is no principled reason for holding the Society liable when an otherwise public entity could not be held liable. The rationales for applying the public duty doctrine to municipal corporations do not disappear simply because the Society is ostensibly a private corporation.

One rationale for invoking the public duty doctrine as a bar to liability is that our courts are concerned that duties owed to the public as a whole should not give rise to overwhelming or excessive liability. See Chambers-Castanes v King Cy., 100 Wash.2d 275, 291, 669 P.2d 451...