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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE BRIAN BESAW, individually, and CARMEN BESAW, individually and the marital community composed thereof, Appellants.

v. PIERCE COUNTY, a county corporation, Respondent. Verellen, A.C.J. —When a plain does not establish thatthe county failed No. 72362-6-1

UNPUBLISHED OPINION FILED: November 10, 2014


### iffalleging damages resulting from a dog bite

o enforce animal control ordinances 

### designating that dog as potentially dangerous and requiring proper enclosure ofthe 

### dog, noliabilityextends to thecounty under thepublic duty doctrine. Here, therecord shows that the county lacked a sufficientbasis to designate the dog as a potentially 

### dangerous animal under theapplicable ordinances. And evenifitdid, theundisputed facts establish that the county's failure to enforce these ordinances did notproximately
cause the injuries; rather, the owner's negligence in allowing the dog toescape a 

### properenclosure resulted intheplaintiffbeing bitten. Accordingly, weaffirmthetrial court's grant ofsummaryjudgmentanddismissal oftheclaims against PierceCounty.No. 72362-6-1/2

FACTS 

### On July 5, 2011, Brian Besaw was bitten by a white pitbull owned by his neighbors, the Johnsons. Besaw went to the Johnsons' home to offerto lend his 

### lawn mower to them after Kristy Johnson asked to borrow it. Besaw was aware that 

### the Johnsons owned two pitbulls, a brown one and a white one, and assumed they were in the house at the time because they were not out in the yard and the gate was open. According to Besaw, ifthe dogs were inside, the Johnsons would leave the gate open. When he knocked on the door, a friend ofthe Johnsons answered the door and came outside. Besaw told him they could use his mower, and the friend 

### went back inside the house to find Kristy. When he opened the doorto go back inside, the white pit bullcame out, jumped on Besaw, and bit him on the wrist. Besaw drove to the emergency room and was treated for a laceration on his arm, which healed within three weeks. The next day, Besaw reported the incident to Pierce CountyAnimal Control (Animal Control). Animal Control officers made unsuccessful attempts to contact the Johnsons and serve on them a declaration of a potentially dangerous animal. The dogs had been reported running loose inthe neighborhood. On September20, 2011, an Animal Control officer contacted Calvin Johnson at his home. Johnson put the dogs in his truck and told the officer he was taking the dogs away and was moving in two weeks. Afterthat, no one had further contact with the Johnsons. On August 26, 2011, Besaw sued the Johnsons and Pierce County for damages resulting from the dog bite. He claimed that the county was negligent in its supervision and control ofdangerous and potentially dangerous animals and failed toNo. 72362-6-1/3 

### enforce ordinances regarding control of such animals. Pierce County movedfor summaryjudgment and soughtdismissal ofthe claims, contending that underthe public duty doctrine, it owed no duty to Besaw at the time he was bitten, and that 

### Besawfailed to establish that itbreached a duty that proximately caused the claimed 

### harm. The trial court granted Pierce County's motion forsummaryjudgmentand dismissed the claims against it withprejudice. Besaw appeals. ANALYSIS 

### Besaw contends that the trial court erred bydismissing his claims on summary judgment because there were disputed issues of material fact on whetherthe county failed to enforce animal control ordinances governing potentially dangerous dogs, an exception to the public duty doctrine thatwould create a legal duty to Besaw from the county. We disagree. On this record, Besaw fails to show that Pierce County had sufficient notice that this particular pit bull had engaged inconductto warrant designating itas a potentially dangerous animal underthe applicable animal control ordinances. And even if it did, the undisputed facts establish that the county's failure to enforce the ordinance did not proximately cause Besaw's injuries. Accordingly, the trial court properly concluded as a matter of law that Pierce County was not liable for Besaw's injuries and dismissed the claims. Under the public duty doctrine, a government's obligation to the public is not a legal duty of care; instead, a government can be liable only for breaching a legal dutyNo. 72362-6-1/4 

### owedindividuallyto the plaintiff.1 Buta legal duty of care may be attributed to a government entityifone of the four exceptions apply: (1)the legislative exception, 

### (2) the failure to enforce exception, (3) the rescue doctrine, and (4) the special 

### relationship exception.2 Whether a governmententity owes a legal dutyto the plaintiffunderthe public duty doctrine is a question of law, reviewed de novo.3 Besaw contends that Pierce County's actions fell withinthe failure to enforce 

### exception to the public duty doctrine and thereby created a legal duty to him. Under 

### the failure to enforce exception, the government's obligation to the general public becomes a legal duty to the plaintiffwhen (1) government agents who are 

### responsible for enforcing statutory requirements actually know of a statutory violation, (2) the government agents have a statutory duty to take corrective action but fail to 

### do so, and (3) the plaintiffsare within the class the statute intended to protect.4 The plaintiffbears the burden ofestablishing each element of this exception, and the court mustconstrue the exception narrowly.5 Besaw argues that there were disputed issues offact about whether Pierce 

### County knew thatthe animal ordinances were being violated. Underthe relevant ordinances ineffect at the time, a "potentially dangerous animal" is defined as one which

1 Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001). 2 \± at 786. 

### 3Gorman v. Pierce County, 176 Wn. App. 63, 75, 307 P.3d 795 (2013), review denied. 179 Wn.2d 1010, 316 P.3d 496 (2014). 

### 4Baileyv. Town of Forks. 108 Wn.2d 262, 268, 737 P.2d 1257 (1987). 5Gorman, 176 Wn. App. at 77.No. 72362-6-1/5 when unprovoked: (a) inflicts bites on a human, domestic animal or livestock either on public or private property, or (b) chases or approaches a person upon the streets, side-walks, or any public grounds or private property in a menacing fashion or apparent attitude ofattack, or (c) any animal with a known propensity, tendency, or disposition to attack unprovoked orto cause injury or otherwise threaten the safety of humans, domestic animal, or livestock on any 

### public or private property.[6] Animal Control could declare an animal potentially dangerous ifthere is probable

cause to believe the animal falls within this definition. Such a determination must be based upon: 1. The written complaint of a citizen who is willing to testify thatthe animal has acted in a manner which causes it to fall within the definition ofSection 6.02.010 X; or 2. Animal bite reports filed with the County or the County's designees;

or 3. Actions ofthe animal witnessed by any animal control officer or law enforcement officer; or 4. Other substantial evidence.[7] 

### Once such a designation is made, the animal is subjectto permitting, fees, and the 

### requirements ofproperenclosure.8 Besaw contends that Pierce County was aware that the Johnsons' dogs were 

### subjectto these ordinances but failed to take action to designate them as such and

ensure their containment. He points to several complaints about the dogs dating 

### back to 2008 that necessitated a potentially dangerous designation and the county's failure to take corrective action. Pierce County responds that none ofthese

6PCC 6.02.010(X). 7PCC 6.07.010(A). 8 PCC 6.07.020.No. 72362-6-1/6 complaints specifically identified the white pit bullthat bit Besaw or identified conduct thatfell within the definition of "potentially dangerous." The record shows that there

was only one bite complaint involving the Johnsons' dogs in June 2011. According to the incident report, a neighbor reported that his adult daughter had been bitten by the Johnsons' dog, but did not specifythat itwas the white dog. The record further shows that the alleged victim refused to cooperate with the investigating Animal Control officer and therefore did not provide Animal Control with a sufficient basis to 

### designate itas a potentiallydangerous animal under the ordinance.9 The only other incident ofaggressive behaviortoward a human cited by Besaw involved a brown 

### dogowned by a Mr. Russo, whomoved before the Besaw biteincident.10 The remaining incidents cited by Besaw did not demonstrate a propensity to attack 

### unprovoked or to cause injury butwere largely reports of the dogs running loose. At 

### most, they involved chasing and "scaring" other animals but did notinvolve biting or actual attacks on animals. Thus, on this record, Besaw failed to establish sufficient 

### facts, much less disputed facts, showing that Pierce County was aware that its 

### ordinances were being violated and failed to enforce them. The trial court therefore 

### properly concluded that as a matter oflaw, Besawfailed to establish that the failure to enforce exception to the public duty doctrine applied here. But even ifthere were an issue offact aboutwhether Pierce County had 

### information that the dog's behavior fell within the definition of"potentially dangerous" 

### 9See Clerk's Papers at 78 (incident report stating, "Victim is 36 [years old] and did not want to even report this incident."); Clerk's Papers at 275-76 (officer 

### personally spokewith the alleged victim on the phone and she refused tocooperate). 10 Clerk'sPapers at 77 (incident report stating "brown pitbull charged [victim] after her barking and lunging at her").No. 72362-6-1/7 

### and failed to enforce the applicable ordinances, summaryjudgmentwas still proper. As the trial court concluded, Besaw cannot establish that this alleged failure ofthe county to act proximately caused his injuries. IfPierce County did infact designate the dog as potentially dangerous, at most, the county could have required the 

### Johnsons to obtain permits, pay fees, and properly enclose the dog. A "proper enclosure" requires thatthe animal "be confined indoors or in a securely enclosed 

### and locked pen orstructure."11 When Besaw approached Johnson's property the day ofthe dog bite, the white pit bullwas in fact confined indoors as required bythe ordinance. Butdespite the properenclosure inside the house, the dog escaped due to Johnson's negligence, not the county's, resulting in injury to Besaw. Accordingly, on this record, Besaw fails to establish that Pierce County's breach ofthe claimed duty owed to him proximately caused his injuries. The trial court properly granted summaryjudgment and dismissed the claims. The cases upon which Besaw relies are distinguishable and do not require a different result. In Gorman v. Pierce County, the court held that the failure to enforce exception to the public duty doctrine applied in a dog bite case where, as here, the plaintiffalleged that the county was liable for failing to classify the biting dog as a 

### potentiallydangerous dog underthe applicable ordinances.12 But in Gorman, Pierce County apparently conceded the first elementofthe failure to enforce exception, that itactually knew ofthe statutory violation, as evidenced by several complaints of



### 11 PCC 6.02.010(Z). 12176Wn. App. 63, 77, 307 P.3d 795 (2013), review denied, 179 Wn.2d 1010, 316 P.3d 496 (2014).No. 72362-6-1/8 

### aggressive behaviorexhibited by the same dog who bit the plaintiff.13 The evidence 

### showed that the dog had aggressively confronted a neighbor, preventing the 

### neighbor and their son from leaving their home, confronted the plaintiffafter chasing her dogs inthe house and bit her clothing, requiring her to use a stick to fend off the 

### dog and retreat inside her home, and chased a child on rollerblades.14 On appeal, Pierce County onlycontested the second element of the failure to enforce exception, 

### that it had no duty to take corrective action, arguing that it had discretion to classify 

### an animal as potentially dangerous.15 The courtdisagreed, concluding that the ordinance in effect at the time created a mandatory duty to classify a dog as potentially dangerous upon any valid report of a dangerous dog.16 Buthere, Besaw has failed to establish a factual basis forthe firstelement, thatthe county actually knew of a statutory violation, rendering unnecessary an inquiry into this second element. The Gorman holding therefore has no application here. In Livingston v. City of Everett, the court also found that the failure to enforce 

### exception applied in a dog bite case, but it is likewise distinguishable.17 Unlikehere, in Livingston, there was evidence that established that the city actually knew ofthe statutory violations. The evidence there showed that there were at least two prior

13]d 14 Id at 70-71. 15 Id, at 77. 16 Id at 81. 1750Wn. App. 655, 751 P.2d 1199(1998).No. 72362-6-1/9 

### complaints thatthe same dog that attacked the plaintiffs had bitten another person and lunged at a young child.18 Because Besaw failed to show that Pierce County breached a duty owed to him and proximately caused his injuries, summaryjudgmentwas proper. We affirm.

WE CONCUR: 

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18 Id. at 657.