Fevered Tail-Wagging and Lolling of Tongues

A bill its author says will help open more dog parks around the state by protecting cities and counties from liability for any “injury or death suffered by any person or pet” occurring at those parks won unanimous approval April 3 by the Assembly Judiciary Committee.

The bipartisan agreement on the measure might stem from its subject matter. Who but the crabbiest of curmudgeons could oppose expanding opportunities for bonding among four-legged and two-legged friends? And who would saddle cash-strapped localities with greater liability exposure?

Or perhaps such rare agreement between Republicans and Democrats results from the bill being unnecessary.

“Non-controversial,” as the Judiciary Committee analysis politely puts it.

“Existing law already makes the owner of a dog liable for damages suffered by any person bitten or attacked by a dog in a public place, even where the owner had no knowledge prior to the bite or attack that the dog was vicious,” Page 2 of the committee analysis says, quoting Civil Code Section 3342.

Local governments are also already immune from liability under the long-standing California Tort Claims Act.

“A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person,” reads Government Code Section 815.

But by expressly stating that existing law also applies to dog parks, AB 265 would provide local government officials with less fear of liability exposure, counters Assemblyman Mike Gatto, the Burbank Democrat carrying the legislation, which was suggested by city councilmembers in two of the cities Gatto represents.

Here’s the fear, as laid out by Gatto and supporters of his bill, which include the Humane Society and the California State Association of Counties:

A dog at a dog park bites or attacks another dog or a person at the dog park.  The victim sues the owner of the ill-tempered dog but fails to recover any damages. Next they “turn to the host city or county looking for additional remuneration.”

If the litigant succeeds — in the face of the long-standing California Tort Claims Act — then “limited public resources” will be spent on damages that should have been paid by the owner of the offending pooch, Gatto contends.

Indeed, “one of the largest barriers to small cities and counties from being able to afford dog parks” is liability costs, Gatto concludes.

From Page 3 of the committee analysis:

“The committee is not aware of any instances in which a local public entity in California has been sued for an injury caused by a dog in a dog park. The many letters in support of this bill – most from local public entities and their respective associations – vigorously maintain that a public entity would be liable, even though none cite any example of such a lawsuit ever arising.”

Gatto says in a press release touting his  bill that the state passed similar liability-limiting legislation in 1999 for skateboarding parks.

“State lawmakers reasoned that more recreation opportunities were needed but that skateboarding is inherently dangerous and should be done at the users’ risk and without massive liability for cities and their taxpayers,” Gatto says in his press release, accurately summarizing the rationale behind the earlier legislation.

However, as the committee observes with what’s hopefully a bit of dry humor, “skateboarding, unlike taking a dog to a dog park, has certain inherent danger” and “may not be an entirely apt comparison to this bill.”

Finally, the committee says the following:

“A Judicial Council report that was required by the earlier skateboard park legislation concluded that the number of local governments that created skateboard parks increased greatly after the 1999 legislation was enacted.  “Whether the legislation was the cause of this increase is uncertain but this fact may suggest that providing express immunity from liability – even if such immunity is already provided by the general governmental immunity statute – will give local public entities additional comfort and certainty to establish dog parks that provide an important service for dogs and their owners.”

And who wants to stand in the way of dogs and their owners?

Particularly when their champion is the chair of the  Appropriations Committee, the lower house’s most powerful committee that determines the fate of its most important legislation.

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