Making the government or its employees pay for a dog attack is certainly possible but definitely not easy. The common law and the existing dog bite statutes impose liability primarily on the owner of the attacking dog. To hold anyone else legally liable for a mauling, one needs legal grounds and strong evidence; to make a claim against a governmental entity or employee, one also must satisfy the requirements of the applicable governmental tort claims act. Proving that a government or its employees are liable is very difficult and the services of an attorney are absolutely required.
Legal grounds for liability of the government
The strongest legal ground for governmental liability would be a specific law requiring the governmental unit or employee to take an action which would have prevented the victim’s injury from happening. Unfortunately, there are few such laws in the United States and, in jurisdictions where such a law exists, courts usually exonerate the governmental defendants by holding that the law only seems to create a mandatory duty but doesn’t really do so. For example, the California Court of Appeal pointed out that an ordinance which said the animal control department “shall” capture vicious dogs implicitly gave the department the discretion to decide whether a dog were vicious enough to require capture, and therefore the ordinance did not establish a mandatory duty unless there was proof that the department made such a determination. (County of Los Angeles v. Superior Court (Faten) (filed September 5, 2012, certified for publication on Sept. 20) 2012 DJDAR 13264; see discussion of the Faten case at Dowling Aaron, “Shall” is not always mandatory language (accessed 10/12/2020).)
In the absence of a law creating a mandatory duty, the plaintiff has to prove that the state’s governmental tort statute imposes liability on some other ground. The grounds differ from state to state. Sometimes negligence is actionable, and sometimes it is not. The creation or failure to correct a dangerous condition of public property usually is a proper ground for suit, but it does not always apply to dog attacks.
In the next section are two examples of winning claims against government entities: Cooney v. Parlier Unified School District, and Lowe v. Smallwood, Knox County and White. Both cases have something in common, namely that government officials clearly knew about the vicious dogs and that those officials then did something (or failed to do something) that created the danger which caused the injuries or death.
Example of a winning case: Cooney v. Parlier Unified School District
Here is an example of a successful dog mauling case against several governmental agencies. In Krystal Cooney v. Parlier Unified School Dist., County of Fresno, City of Parlier, et al., Attorney Kenneth M. Phillips proved that a pack of vicious, wild dogs had been living on the premises of a high school as a result of actions taken by the district’s employees, and that the district, city and county were aware of the condition for 10 years. The governmental defendants filed demurrers, a motion for judgment on the pleadings, and a motion for summary judgment, all of which were won by Mr. Phillips’ client. Within three hours of winning the summary judgment hearing, Mr. Phillips got the defendants to agree to a settlement.
So in order to make a case “stick” against a governmental agency, the plaintiff needs the facts, legal grounds, a properly drafted complaint, and evidence such as deposition testimony or at least declarations that will enable the victim to win a summary judgment motion.
Example of a winning case: Lowe v. Smallwood, Knox County and White
In James Randy Lowe, Jr., etc., v. Charles Smallwood, Knox County, Tennesse, and Priscilla White, Attorneys Kenneth M. Phillips and Wayne A. Ritchie II proved that the animal control department of Knox County should be held liable for the horrific fatal mauling of Jennifer Lowe on November 12, 2007 in Knoxville, Tennesee. The animal control department had taken the attacking pit bulls into custody based on verifiable information that they were vicious, but then released the dogs to Charles Smallwood, their owner. After that, the department learned that the dogs continued to go at large and continued to threaten the safety of people, but took no further action against Smallwood until they killed Ms. Lowe. These facts showed that the department clearly breached its duty to the public, on which basis it was held responsible for her death.
Special defenses and procedures
If the victim’s attorney can pinpoint a viable ground for liability, there are two major hurdles to a governmental liability case which do not exist in other cases. The first is that the governmental tort statute will set forth special defenses that other defendants do not have. An example is the recreational activity defense, which says that the government is shielded from liability for dangerous conditions existing on recreational property like dog parks or bicycle paths. The second hurdle is that the governmental tort statute will require the claimant to obey special procedural rules, such as a very short statute of limitations and the submission of a timely written claim to the correct governmental agent.
The claim requirement has resulted in many cases being lost. Generally, one must notify the proper agency of the possibility of a claim as early as 90 days after it arises (to know the exact amount of time, an attorney has to review the governmental tort procedure in the jurisdiction). If and when the claim is denied, there is a certain, limited amount of time to file suit in court. Again, an attorney must review the law to determine this date. Note that the laws which permit minors to file their claims after reaching adulthood do not apply to claims against governmental defendants.
The strategy to follow when the government is a possible defendant
The victim’s lawyer should first determine whether there is an insured, non-governmental defendant. An example would be the owner of the attacking dog, insured by homeowners insurance in an adequate amount. If a fair, adequate amount of compensation can be paid by such a defendant, consider leaving out the governmental defendant for the following reasons:
- The presence of multiple defendants spreads out the defense costs while increasing the victim’s costs.
- The workload for the plaintiff and his attorney is multiplied.
- At trial, the plaintiff might find that he unwittingly created the basis for a number of defenses and adverse strategies such as apportionment of damages.
- Simple matters like entering into a settlement are complicated by things like good faith settlement motions.
- Giving a jury a choice of defendants is a bad tactic because it makes their job harder and makes the trial longer.
If it appears necessary or prudent to add a governmental defendant, the attorney should do a memorandum of law and begin marshaling the evidence from the beginning of the case, rather than waiting until later. Lawyers should consider contacting Attorney Kenneth M. Phillips for special templates and a consultation.