Livingston v. City of Everett

751 P.2d 1199, 50 Wash. App. 655
CourtCourt of Appeals of Washington
DecidedFebruary 22, 1988
Docket19098-9-I
StatusPublished
Cited by26 cases

This text of 751 P.2d 1199 (Livingston v. City of Everett) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Livingston v. City of Everett, 751 P.2d 1199, 50 Wash. App. 655 (Wash. Ct. App. 1988).

Opinions

Williams, J.

Mitzi Livingston, individually and as guardian ad litem for her 4-year-old son James Anthony, brought this action against the City of Everett and Alfred McFarlen to recover damages for injuries suffered by Anthony when he was bitten by McFarlen's dogs. McFarlen was not served and has not appeared. The City counterclaimed for contribution against Livingston, individually, contending that she did not adequately supervise her son. The trial court granted Everett's motion for summary judgment dismissing the complaint and denied Livingston's motion for summary judgment dismissing the counterclaim. Livingston appeals both orders.

[657]*657The facts as developed on the summary judgment motion are that in April 1984, McFarlen and his three doberman pinschers moved into the Everett, Washington, apartment of his girl friend, Tina Tiff. Thereafter, the following contacts about the dogs were made with the Everett Animal Control Department, an agency of the City of Everett:

1. April 19 — complaint to the Department about McFarlen's dogs running loose in the neighborhood. An animal control officer went to the area, but did not see any dogs.

2. April 23 — report to the Department that one of Mc-Farlen's dogs bit the apartment maintenance man. An animal control officer investigated the report and told Tiff not to let the dogs run loose.

3. April 23 — complaint by the manager of the apartment to the Director about McFarlen's dogs, no action taken.

4. April 24 — two complaints by a neighbor and a tenant of the apartment to the Department about McFarlen's dogs running loose in the neighborhood, no action taken.

5. April or the first part of May — report by a tenant of the apartment to the Department that one of McFarlen's dogs had lunged at her young nephew, no action taken.

6. May 10 — complaint to the Department by a neighbor about McFarlen's dogs running loose in the neighborhood. Animal control officers investigated and seized the three dogs.

7. May 11 — the three dogs released to McFarlen.

On June 4, Tiff invited Livingston and her three children, ages 3, 4 and 6, into her apartment and showed them into a bedroom. Shortly thereafter, Livingston, who was unaware that two of the dogs were in the apartment, sent the children into the living room. Less than 1 minute later, the dogs knocked down James Anthony, biting and scratching him on the arms and head. The Department was called and an officer came and seized one of the dogs, with the other dog being taken the following day. Subsequently, both dogs were destroyed by the Department.

Livingston contends that the City was negligent in that "the Director either failed to discharge or did negligently [658]*658discharge a duty to protect the public from vicious animals causing injury to James Anthony and Mitzi Livingston." Complaint, in part. The City contends it is protected from the claim by the "public duty doctrine."

As a general proposition, the City is liable for the tortious conduct of its officers "to the same extent as if they were a private person or corporation". RCW 4.96.010. An exception is the "public duty doctrine," which provides:

"... generally that for one to recover from a municipal corporation in tort it must be shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one)." J & B Dev. Co. v. King Cy., 100 Wn.2d 299, 303, 669 P.2d 468, 41 A.L.R.4th 86 (1983) (citing 18 E. McQuillin, Municipal Corporations § 53.04b, at 127 (3d ed. 1977).

Bailey v. Forks, 108 Wn.2d 262, 265, 737 P.2d 1257 (1987).

An exception to this doctrine is:

where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect (failure to enforce), Campbell v. Bellevue, [85 Wn.2d 1, 530 P.2d 234 (1975)] at 12-13; Mason v. Bitton, [85 Wn.2d 321, 534 P.2d 1360 (1975)] at 326-27;. . .

Bailey, at 268.

The Everett Municipal Code declares that it is the public policy of the City to enforce animal control measures for the protection of human health and safety and to prevent injury to property and cruelty to animal life. The code provides that it is unlawful to permit any animal to become at large, that any animal may be impounded and held when in violation of the code and that

Any impounded animal shall be released to the owner or his authorized representative upon payment of impoundment, care and license fees if, in the judgment of the animal control officer in charge, such animal is not dangerous or unhealthy.

[659]*659Everett Municipal Code 6.04.140(E)(1).

At this juncture, the facts supplied by Ms. Livingston satisfy the three requirements of the failure to enforce exception to the "public duty doctrine.” First, the Animal Control Department is a governmental agency of the City with a duty to enforce statutory requirements, including not releasing dangerous animals. Like the government employees in Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975) and Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975), the animal control officers had a duty to exercise their discretion when confronted with a situation which posed a danger to particular persons or a class of persons. Second, the Department had reason to believe that at least one of the dogs was dangerous. Third, the child came within the class the ordinance was intended to protect. See Bailey, at 269-70; Campbell, at 13; Mason, at 325-26; Wright v. Brown, 167 Conn. 464, 356 A.2d 176, 179 (1975).

In connection with this third requirement, the rule stated in Bailey v. Forks, supra, which involved an officer releasing a drunk person to drive on the public highway, is that:

When statutes intend to insure the safety of the public highways, a governmental officer's knowledge of an actual violation creates a duty of care to all persons and property who come within the ambit of the risk created by the officer's negligent conduct. See Mason v. Bitton, 85 Wn.2d 321, 325-26, 534 P.2d 1360 (1975).

Bailey, at 270.

The same is true in this case, as persons in the apartment come within the ambit of the risk created by the release of the dogs. This observation also applies:

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Livingston v. City of Everett
751 P.2d 1199 (Court of Appeals of Washington, 1988)

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Bluebook (online)
751 P.2d 1199, 50 Wash. App. 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-city-of-everett-washctapp-1988.