While nearly 10,000 dog bites every year in the U.S. require emergency medical treatment, only a small percentage are fatal. According to DogBites.org, at least 31 people died in dog bite-related incidents last year.
In a recent wrongful death lawsuit before the Supreme Court of Appeals of West Virginia, the widow of an elderly man who died after he was viciously attacked by several dogs while walking near his home sued the county and the county’s dog warden alleging negligence in performing statutory duty. Specifically, the widow asserted the dog warden allowed the vicious dogs to remain at-large, resulting in wrongful death. The warden was sued both personally and in her individual capacity. Plaintiff sought compensatory as well as punitive damages, alleging the violations were willful, wanton and reckless. (It should be noted that while the homeowner where the dogs resided was acquitted of criminal wrongdoing, but the owner of the dogs pleaded guilty to nine misdemeanors, including involuntary manslaughter. All the dogs were euthanized.)
The county moved to dismiss the wrongful death dog bite lawsuit, citing the public duty doctrine.
The public duty doctrine, for those who may be unfamiliar, is distinct from sovereign immunity or official immunity. Not all states recognize it (Florida does), but where they do, the doctrine holds a public employee cannot be civilly liable for breaching a duty of care owed to the general public, rather than a particular individual. It’s based on the assertion that a public employee owes no duty of care to an individual member of the public.
The doctrine doesn’t fully insulate employees, who can still be found liable for ministerial duties. But there can’t be a cause of action for injuries sustained by an individual when the duty was to the community as a whole.
Decedent’s widow in this case asserted the special relationship exception. The court ultimately found plaintiff failed to produce sufficient evidence to establish there was a special relationship between the warden and decedent that would give rise to a duty of care.
Upon review by the state supreme court, the trial court’s ruling was reversed.
The court noted the public duty doctrine is restricted to liability for non-discretionary (i.e., ministerial) functions. It’s not based on immunity from existing liability, but rather on the absence of any duty of care to the individual in the first place. The special relationship exception, according to that state’s case law, applies to political subdivisions. In order to establish a special relationship, plaintiff needed to show:
- Assumption by local government entity (via promises or actions) of an affirmative duty to act on behalf of party who was injured;
- Knowledge by local government entity that inaction could lead to harm;
- Some form of direct contact between local government agents and injured party;
- That party’s justifiable reliance on local government entity’s affirmative undertaking.
Critical in this case was a 911 call plaintiff made to the dog warden to complain about the pit bulls prior to the incident. She later spoke directly with the warden, shared her belief the dogs were dangerous and explained her fear of them. The warden assured her the county would take care of it, records show. Other complaints about the dogs were also entered into evidence, as was a visit by the dog warden to the couple’s home a month prior to the attack to discuss the dogs.
The court ruled she met her burden, and therefore she can proceed with her dog bite lawsuit.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Bowden v. Monroe County Commission, May 18, 2017, Supreme Court of Appeals of West Virginia
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Florida DUI Ignition Interlock Bill Gets State House Committee Approval. April 26, 2017, Dog Bite Injury Lawyer Blog