Oliver v. Cook
| Decision Date | 14 June 2016 |
| Docket Number | No. 47645–2–II,47645–2–II |
| Parties | Steven J. Oliver, an individual, Appellant, v. Henry W. Cook and “Jane Doe” Cook, husband and wife and their marital community comprised thereof; and Eugene L. Mero and “Jane Doe” Mero, husband and wife, and their marital community comprised thereof; Lynn A. O'Conner and “John Doe” O'Conner, husband and wife, and their marital community comprised thereof; City of Chehalis, a political subdivision of the State of Washington; Grays Harbor County, a political subdivision of the State of Washington, Respondents. |
| Court | Washington Court of Appeals |
Monte Bersante, Rebecca Marie Larson, Davies Pearson, PC, 920 Fawcett Avenue, P.O. Box 1657, Tacoma, WA, 98401–1657, for Appellants.
Guy M. Bogdanovich, Law Lyman Daniel Kamerrer et al., P.O. Box 11880, Olympia, WA, 98508–1880, Elizabeth Ann Jensen, Attorney at Law, 505 Broadway, Unit 801, Tacoma, WA, 98402–3997, for Respondents.
Michael E. Tardif, Freimund Jackson Tardif & Benedict Garra, 711 Capitol Way S., Ste. 602, Olympia, WA, 98501–1236, for Other Parties.
Worswick
, J.
Steven Oliver appeals the summary judgment dismissal of his action against Grays Harbor County and Eugene Mero for damages suffered from a dog bite. He argues that a former policy contained in the Grays Harbor Sheriff's Department Policies and Procedures manual created a duty that satisfied the failure to enforce exception to the public duty doctrine and that genuine issues of material fact exist regarding whether Mero breached a duty to him under a premises liability theory. Because the failure to enforce exception cannot be supported by an entity's failure to enforce a nonlegislative departmental policy, we affirm the summary judgment dismissal of Grays Harbor County. However, because genuine issues of material fact remain regarding Oliver's premises liability claim, we reverse the summary judgment dismissal of Mero and we remand for further proceedings.
FACTS
¶ 2 Steven Oliver operated an automobile shop that was located on Eugene Mero's property in Grays Harbor County. In exchange for using Mero's property, Oliver performed repair and maintenance work for Mero.
¶ 3 Henry Cook was Mero's friend. Cook owned a dog named “Scrappy,” an eight-year-old male pit bull mix. Clerk's Papers (CP) at 43. Mero knew Scrappy could be aggressive; Scrappy often barked at passing strangers, and Mero avoided approaching vehicles when he knew Scrappy was in them.
¶ 4 On August 23, 2010, Cook arrived at the Mero property driving Mero's flatbed truck. Cook and Mero then left the property together in a different vehicle, leaving Scrappy inside the cab of Mero's truck with the window partially down.
¶ 5 Soon thereafter, Oliver arrived at the Mero property. As Oliver walked past the passenger side of the flatbed truck, Scrappy lunged out of the passenger window and bit Oliver in the face, ripping off a significant portion of his nose.
¶ 6 Prior to his attack on Oliver, Scrappy had a history of aggressive and violent behavior. In 2004, Scrappy attacked a Dachshund owned by one of Cook's neighbors in Grays Harbor County. The attack, which occurred on the neighbor's property, tore off the Dachshund's toenail and left it with numerous puncture wounds
. The Grays Harbor County Sheriff's Department investigated the attack and issued Cook a Potentially Dangerous Dog Notification.
¶ 7 In 2007, Scrappy was involved in another incident in Grays Harbor County that required a response from the sheriff's department. Scrappy aggressively chased a seven-year-old boy who was visiting one of Cook's neighbors. The boy was able to reach the neighbor's residence without being bitten or otherwise injured. The sheriff's department issued Cook a second Potentially Dangerous Dog Notification.1
¶ 8 Oliver brought suit in Thurston County Superior Court to recover damages for the injuries sustained in the 2010 attack, alleging defendants' negligence caused his injuries.2 Grays Harbor County filed a motion for summary judgment, seeking dismissal of all claims, arguing that it was immune from liability under the public duty doctrine. In response, Oliver argued that the Grays Harbor County Sheriff Department's Policies and Procedures, which created a more restrictive standard within the county for issuing a Dangerous Dog Notification than state law did, exposed the County to liability under the failure to enforce exception to the public duty doctrine.
¶ 9 Former departmental policy 1753,3 in effect at the time of the 2004 and 2007 attacks, defined a “Dangerous Dog” as one that had been “previously found to be potentially dangerous , the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans or domestic animals.”4 CP at 108 (emphasis added). In contrast, the corresponding State statute defined a dangerous dog as “any dog that ... has been previously found to be potentially dangerous because of injury inflicted on a human , the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans.” RCW 16.08.070(2)(c)
(emphasis added).
¶ 10 Oliver argued that Cook's receiving a Potentially Dangerous Dog Notification after Scrappy's 2004 attack on the Dachshund, and then Scrappy later exhibiting aggressive behavior toward the seven-year-old boy in 2007, required the sheriff's department to declare Scrappy a dangerous dog under its own policies. Oliver conceded that Scrappy was not a dangerous dog under RCW 16.08.070
; however, he argued the County sheriff's department nonetheless breached its “statutory duty” created by its own departmental policies to declare Scrappy dangerous. CP at 99. Oliver argued that the sheriff department's failure to enforce its own more restrictive regulation triggered the failure to enforce exception to the public duty doctrine, consequently creating liability for the County. The County argued that the failure to enforce exception cannot be based upon an alleged violation of departmental policy but must be based on a duty that arises from a statute or ordinance.
¶ 11 The superior court granted the County's motion for summary judgment, finding that the departmental policies Oliver cited could not support a claim under the failure to enforce exception.
¶ 12 Mero also moved for summary judgment dismissal, arguing that he breached no duties to Oliver under either a premises liability theory or under the common law rules about dangerous animals. The superior court granted this motion, dismissing Oliver's claims against Mero.5 Oliver appeals both summary judgment orders.
ANALYSIS
¶ 13 Oliver appeals the superior court's orders of summary judgment dismissing both Grays Harbor County and Mero. We affirm the dismissal of Oliver's case against Grays Harbor County, but we reverse the dismissal of Oliver's case against Mero.
¶ 14 Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c)
; Babcock v. Mason County Fire Dist. No. 6 , 144 Wash.2d 774, 784, 30 P.3d 1261 (2001)
. We review summary judgment orders de novo. Torgerson v. One Lincoln Tower, LLC , 166 Wash.2d 510, 517, 210 P.3d 318 (2009). We also review the existence of a duty de novo. Washburn v. City of Federal Way , 178 Wash.2d 732, 753, 310 P.3d 1275 (2013).
¶ 15 A material fact is one on which the outcome of the litigation depends in whole or in part. Atherton Condo. Apartment–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co. , 115 Wash.2d 506, 516, 799 P.2d 250 (1990)
. All facts are considered in the light most favorable to the nonmoving party. Vallandigham v. Clover Park School Dist. No. 400 , 154 Wash.2d 16, 26, 109 P.3d 805 (2005)
(citing Atherton , 115 Wash.2d at 516, 799 P.2d 250 ). The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton , 115 Wash.2d at 516, 799 P.2d 250. “If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute.” Atherton , 115 Wash.2d at 516, 799 P.2d 250. If the nonmoving party fails to do so, summary judgment is proper. Vallandigham , 154 Wash.2d at 26, 109 P.3d 805.
¶ 16 A government is not liable for negligence unless it breached a duty of care. Gorman v. Pierce County , 176 Wash.App. 63, 75, 307 P.3d 795 (2013)
. Under the public duty doctrine, a party must show that the government breached a duty it owed to the injured person as an individual rather than an obligation it owed to the public at large. King v. Hutson , 97 Wash.App. 590, 594, 987 P.2d 655 (1999). If the public duty doctrine applies, the government is determined to owe no duty to the particular plaintiff. Taylor v. Stevens County , 111 Wash.2d 159, 163, 759 P.2d 447 (1988).
¶ 17 There are four exceptions to the public duty doctrine. Babcock , 144 Wash.2d at 786, 30 P.3d 1261
. However, this case involves only one: the failure to enforce exception. Babcock , 144 Wash.2d at 786, 30 P.3d 1261. For this exception to apply, the governmental entity responsible for enforcing a statutory requirement must possess actual knowledge of a statutory violation and fail to take corrective action despite a statutory duty to do so, and the plaintiff must be within the class the legislature intended to protect. King , 97 Wash.App. at 594, 987 P.2d 655
. The plaintiff has the burden to establish each element of the failure to enforce exception, and we construe the exception narrowly. Gorman , 176 Wash.App. at 77, 307 P.3d 795.
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