Gorman v. Pierce Cnty., Corp.

• Decision Date: 13 August 2013
• Docket Number: Nos. 42502–5–II, 42594–7–II.,s. 42502–5–II, 42594–7–II.
• Court: Washington Court of Appeals
• Parties: Sue Ann GORMAN, a single person, Respondent/Cross Appellant, v. PIERCE COUNTY, a county corporation; Shellie R. Wilson and “John Doe” Wilson, husband and wife and the marital community composed thereof; Zachary Martin and “Jane Doe” Martin, husband and wife and the marital community composed thereof; and Jacqueline Evans–Hubbard and “John Doe” Hubbard, husband and wife and the marital community composed thereof, Appellants/Cross Respondents.

176 Wash.App. 63

307 P.3d 795

Sue Ann GORMAN, a single person, Respondent/Cross Appellant,

v.PIERCE COUNTY, a county corporation; Shellie R. Wilson and “John Doe” Wilson, husband and wife and the marital community composed thereof; Zachary Martin and “Jane Doe” Martin, husband and wife and the marital community composed thereof; and Jacqueline Evans–Hubbard and “John Doe” Hubbard, husband and wife and the marital community composed thereof, Appellants/Cross Respondents.

Nos. 42502–5–II, 42594–7–II.

Court of Appeals of Washington,

Division 2.

Aug. 13, 2013.

Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, Tacoma, WA, for Appellant.

David P. Lancaster, Hollenbeck Lancaster & Miller, Bellevue, WA, Nancy Katherine McCoid, Soha & Lang PS, Bradley Dean Westphal, Lee Smart PS Inc, Seattle, WA, for Respondent.

Shelly K. Speir, Troup Christnacht Ladenburg McKasy et al, Tacoma, WA, for Appellant/Cross–Respondent.

Michael Joseph McKasy, Attorney at Law, Tacoma, WA, for Respondent/Cross–Appellant.

PENOYAR, J.

[176 Wash.App. 68]¶ 1 Two dogs entered Sue Ann Gorman's house through an open door and mauled her in her bedroom. Invoking a statute imposing strict liability for dog-bite injuries, Gorman sued the dog owners, Shellie Wilson, Zachary Martin, and Jacqueline Evans–Hubbard. Gorman also sued Pierce County for negligently responding to complaints about the dogs before the attack. Pierce County invoked the public duty doctrine and sought dismissal of the claims against it, but the trial court ruled that the failure to enforce exception applied. A jury found all defendants liable and also found that Gorman's actions contributed to her injuries. Pierce County appeals, arguing that (1) the “failure to enforce” exception to the public duty doctrine does not apply, (2) the jury instructions misstated Pierce County's duty of care, and (3) the trial court erroneously admitted evidence of prior complaints about Wilson's other dogs. Gorman cross appeals, arguing that (4) the trial court erred by denying her motions for judgment as a matter of law, (5) the trial court erred by failing to give the emergency doctrine instruction, and (6) insufficient evidence supports the jury's verdict on contributory fault. Because Pierce County had a mandatory duty to act, we affirm the trial court's determination that the failure to enforce exception applies. Additionally, the jury instructions properly stated the law and Pierce County opened the door to evidence about Wilson's other dogs. We further hold that Gorman failed to properly renew her motion for judgment as a matter of law and this argument is waived, Gorman failed to properly present the emergency doctrine instruction to the trial court, and there is sufficient evidence to support the jury's verdict that Gorman was contributorily negligent in incurring her injuries.

FACTS

I. Substantive Facts

¶ 2 Shellie Wilson lived in Gig Harbor with her 16–year–old son, Zachary Martin. In 2006, they acquired a pit bull named Betty. Betty later had a litter of mixed-breed puppies, including one named Tank. In February 2007, Wilson and Martin gave Tank to Jacqueline Evans–Hubbard.

¶ 3 Two houses away from Wilson, Sue Gorman lived with her service dog, Misty. Gorman's next-door neighbor, Rick Russell, owned a Jack Russell terrier named Romeo.

¶ 4 On the cul-de-sac where Wilson, Gorman, and Russell lived, residents frequently let their dogs roam outdoors without a leash. Gorman left her sliding glass door open so that Misty and Romeo could come and go as they pleased.

¶ 5 Betty was the subject of several complaints to police and animal control officers. On August 31, 2006, Betty and another dog named Lola, belonging to Martin's houseguest, aggressively confronted Wilson's next-door neighbor in his yard, preventing the neighbor and his son from leaving their house for approximately 90 minutes. The neighbor called 911 and an animal control officer contacted Wilson. On the basis of Wilson's admissions, the officer cited Wilson for allowing the dogs to run loose and failing to have a dog license. Wilson demanded that Martin's houseguest remove Lola from the house, and the houseguest complied.

¶ 6 A Pierce County ordinance allowed the county to classify a dog as “potentially dangerous”if the county had probable cause to believe the dog (1) bit a person or animal, (2) chased or approached a person “ in a menacing fashion or apparent attitude of attack,” or (3) was known to otherwise threaten the safety of humans or animals. Former Pierce County Code (PCC) 6.02.010(T) (2007). The county had a duty to evaluate a dog to determine if the dog was potentially dangerous if it had (1) a complainant's written statement that the dog met the code's definition, (2) a report of a dog bite, (3) testimony of an animal control or law enforcement officer who observed the dog, or (4) “other substantial evidence.” RP at 964; Former PCC 6.07.010(A) (2007). In deciding to classify a dog, the county could consider prior complaints about other dogs that had previously belonged to the same owner. After classification, the dog's owner would be required to keep the dog confined, even during the pendency of an appeal. The county would be required to seize any potentially dangerous dog that violated any restriction imposed on potentially dangerous dogs.

¶ 7 During a three-week period in 2007, Pierce County received three more complaints about incidents involving Betty. On February 10, 2007, as Gorman returned from the grocery store, Betty chased Gorman and Misty, Gorman's service dog, into Gorman's house. Fifteen minutes later, Gorman tried to retrieve her groceries from the car but Betty again confronted her. Gorman commanded Betty to leave and kicked at her, but Betty bit Gorman's pant leg. Using a stick she grabbed from a pile in the yard, Gorman fended Betty off until retreating to safety inside her house. Gorman then called 911, but Betty left before a sheriff's deputy arrived an hour later. Finding no one home at Wilson's house, the deputy advised Gorman to call animal control the following morning. Gorman testified that she called animal control and left a message, but she did not receive a return call and did not call again. Animal control had no record of Gorman's call.

¶ 8 The second complaint followed an incident on February 22, 2007. Russell called animal control to report Betty and another loose dog chasing a child on rollerblades.¹ An animal control officer arrived the following day but found no one at Wilson's home. The officer left a note on the door but Wilson and Martin did not respond. The officer also mailed Russell a form to provide a written statement. Russell did not provide a statement until six months later, after the dogs attacked Gorman.

¶ 9 Gorman made the third complaint on March 1, 2007. Betty chased Misty into Gorman's house and proceeded to jump aggressively at Gorman's sliding glass door. Gorman called 911, but Betty again had left by the time a deputy arrived. About 30 minutes later, the deputy and Martin appeared at Gorman's house; Martin then apologized to Gorman, denied Betty's involvement, and promised to fix Wilson's fence. The deputy had Gorman and Martin exchange phone numbers and encouraged Gorman to contact Martin directly in the future.

¶ 10 Wilson owned other dogs before Betty, and Pierce County records showed 10 complaints about Wilson's other dogs. Based on Wilson's prior history, an animal control expert later opined that Pierce County could have declared Betty potentially dangerous after the August 31, 2006, incident with Wilson's next-door neighbor. The expert also opined that Pierce County should have declared Betty potentially dangerous after any of the three incidents on February 10, February 22, and March 1, 2007.

¶ 11 Betty's aggressive behavior continued, but Pierce County did not receive further complaints. Gorman called Martin about 10 times regarding various incidents, but Martin never responded. During an incident in July 2007, Betty and Tank both entered Gorman's house through the open sliding glass door. Gorman believed Betty and Tank had come to confront Misty and Romeo, but Gorman got the dogs to leave peacefully.

[176 Wash.App. 72]¶ 12 On August 17, 2007, Evans–Hubbard, Tank's owner, left for two weeks. While she was gone, Evans–Hubbard left Tank with Wilson. At the time, Tank was six to eight months old.

¶ 13 At approximately 8:22 A.M. on August 21, 2007, Betty and Tank entered Gorman's house through the sliding glass door, which Gorman had left open for the night. Gorman, who was in her bedroom with Misty and Romeo, awoke to the sounds of Betty and Tank snarling. Misty, Gorman's service dog, ran outside to safety.

¶ 14 Betty and Tank then entered Gorman's bedroom and jumped onto her bed. Betty bit Gorman on the left arm. Romeo then jumped off the bed and was mauled by both Betty and Tank.

¶ 15 Gorman tried to protect Romeo. She tried to lift Romeo, but Betty and Tank bit both her hands. Gorman retrieved a gun from her nightstand, but the gun misfired. She threw the gun at the dogs and hit them with her walking stick to no avail. Gorman then managed to pick up Romeo, put him in the closet, and close the door, while Betty repeatedly bit Gorman's face, breasts, and hands. Tank forced the closet door open and, with Betty, began shaking Romeo. Gorman fled the house and closed the sliding glass door behind her to trap the dogs inside. She then called 911.

¶ 16 Gorman suffered serious injuries from 20 to 30 dog bites; she required hospitalization and multiple surgeries. Romeo, the Jack Russell terrier, died from his injuries. Betty and Tank were later euthanized. Wilson and Martin pleaded guilty to criminal charges. They were sentenced to probation and ordered to pay restitution.

II. Procedural Facts

¶ 17 Gorman then filed this suit, claiming that (1) Wilson, Martin, and Evans–Hubbard were strictly liable for the harm their dogs caused Gorman ² and (2) ...