McCain v. City of Jasper (In re Gilland)

274 So. 3d 976
CourtSupreme Court of Alabama
DecidedSeptember 28, 2018
Docket1170642
StatusPublished

This text of 274 So. 3d 976 (McCain v. City of Jasper (In re Gilland)) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCain v. City of Jasper (In re Gilland), 274 So. 3d 976 (Ala. 2018).

Opinion

BRYAN, Justice.

Teresa Gilland petitions this Court for a writ of mandamus directing the Walker Circuit Court ("the trial court") to grant her motion to dismiss the claims filed against her by Diane K. McCain on the basis of State-agent immunity. For the reasons set forth herein, we grant the petition and issue the writ.

Facts and Procedural History

On May 29, 2015, McCain, a resident of Jasper, was attacked and bitten by a German Shepherd dog owned by her neighbor, Robert Barton. On January 4, 2017, McCain sued Barton; the City of Jasper ("the City"); Sonny Posey, then mayor of the City; Joe Matthews, director of the City's Public Works Department; Russell Smallwood, superintendent of the City's Street Department; and Gilland, an animal-control officer employed by the City. McCain's complaint set forth the following factual allegations:

"11. Barton is a former police officer of the City of Jasper and was the owner of a German Shepherd dog (hereinafter 'the Dog') that attacked [McCain] and her pet on the date complained of herein.
"12. Barton regularly kept [the Dog] outside tied to the back patio of his home, unmuzzled, and without a kennel or perimeter fence to prevent his escape.
"13. The chain used by Barton, however, was inadequate to keep the [D]og tethered and secured. The Dog would frequently escape running unleashed and unattended throughout the streets terrorizing the neighborhood.
"14. At all times pertinent, McCain lived on the same street as Barton and was Barton's next door neighbor.
"15. For years McCain and her neighbors would call the City of Jasper and complain about [the Dog] running wild through the streets terrorizing and frightening them by attempting to attack them and their pets.
"16. McCain and her neighbors lived in constant fear of [the Dog], making it nearly impossible for them to safely leave their homes and enjoy being outside without having to be on a constant lookout for the Dog.
"17. When the Dog was loose, McCain and her neighbors would call the City of Jasper for help. The City would come out and capture the [D]og, only to release and return the [D]og to Barton.
"18. On occasion, the [D]og attempted to bite the animal control worker, when she turned her back on the [D]og nipping her on the hand.
"19. The [D]og also attacked McCain's [other] neighbor, on two occasions. On *979the second occasion the [D]og jumped on the neighbor's back, clawing and scratching her while trying to maul and attack her neighbor's dog.
"20. Barton was aware [the Dog] was known to frequently escape, run-at-large, and terrorize his neighbors.
"21. Barton was told by Animal Control that he had to keep [the Dog] tethered and secure or it will hurt someone.
"22. Yet Barton failed to heed their warnings and failed to take sufficient action to contain and confine [the Dog] or protect McCain and her neighbors from being hurt by the [D]og.
"23. For at least two years, McCain repeatedly called the City of Jasper and reported [the Dog] had escaped and was terrorizing her, her neighbors, and their pets.
"24. McCain lived in constant fear of [the Dog], for her own safety and that of her beloved pet dog named Skipper.
"25. McCain could no longer enjoy going outside and taking walks with Skipper without being filled with intense fear at the first sight of [the Dog] charging after her and Skipper, causing her to race back inside for safety.
"26. One occasion while McCain was walking her dog, Skipper, in her back yard, [the Dog] pounced on Skipper, biting him until he bled before letting go.
"27. McCain reported the incident to the City of Jasper and was told that until [the Dog] bit a person they would do nothing to help.
"28. During the spring of 2015, after [the Dog] had escaped several times, Theresa Gilland, the City of Jasper Animal Control Officer, responded to the area and captured the [D]og.
"29. After capturing the [D]og, Gilland's supervisor, Russell Smallwood, told Gilland not to impound [the Dog] because they had no space at the shelter for biting and dangerous dogs.
"30. Gilland told Smallwood that the dog needed to be taken in and put down because it was dangerous and vicious and was going to hurt someone.
"31. Despite this warning by Gilland, Smallwood insisted that Gilland release the Dog.
"32. Having no authority to disobey Smallwood's demand, Gilland released the Dog.
"33. Even though Gilland appeared afraid of [the Dog], she informed McCain that she was instructed to turn the Dog loose and there was nothing she could do to help.
"34. Shortly afterwards, on May 29, 2015, while walking Skipper on a leash in her own front yard, [the Dog] had escaped again and came barreling onto McCain's property charging at her and her dog Skipper. [The Dog] viciously attacked Skipper, biting and shaking him with its powerful and deadly jaws.
"35. As McCain watched and listened to her pet and companion scream and yelp from this vicious attack, McCain pulled the leash with all her might to free Skipper from the grip of [the Dog's] mashing teeth when suddenly [the Dog] turned and attacked her.
"36. The Dog's teeth sunk into the flesh of McCain's upper arm. The Dog bit and thrashed McCain like [a] rag doll and forcing her to the ground and into a drainage ditch.
"37. McCain was in excruciating pain as she watched [the Dog] rip and tear the flesh from her arm.
"38. Despite being in shock from this vicious attack, McCain was somehow able to reach into her pocket with her other arm and spray [the Dog] with mace.
*980"39. After what seemed like an eternity, [the Dog] let go of McCain's threshed and ragged [sic] and ran-off.
"40. As McCain lay there trying to comfort her whimpering and dying pet and companion, she herself screamed and cried in agony and pain until being overcome and losing consciousness.
"41. Upon being revived, McCain found herself being transported by ambulance first to Walker Baptist Hospital and then to the UAB Trauma Center. She knew that her dog was dead, although no one told her.
"42. As a result of the Dog's attack, McCain ... remained hospitalized for weeks and underwent multiple reconstructive surgeries and physical therapy to repair the extensive injuries to her arm.
"43. McCain is permanently scarred, disfigured, and still suffers from pain due to the damage which serves as a constant reminder of the horror she experienced.
"44. As for McCain's pet and companion, Skipper, [the Dog] killed Skipper as a result of this brutal attack, adding unmeasurably to the suffering and misery inflicted upon ...

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Bluebook (online)
274 So. 3d 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccain-v-city-of-jasper-in-re-gilland-ala-2018.