This opinion was filed for record at 

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# h**~Yeijv~** C(E'rk**~** SUSAN L. CA L N SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON
BRYENT AND PATRICIA FINCH, a marital community, Petitioners,
v. ) 

### ) ) ) ) ) ) 

### THURSTON COUNTY; THURSTON ) COUNTY SHERIFF'S OFFICE; ROD ) DITRICH AND JANE DOE DITRICH, ) individually and as husband and wife and the ) marital community comprised thereof, ) Respondents. ) )



# _________________) No. 91761-2

EnBanc

Filed 

### OC! 13 2il16

GONZALEZ, 

### J.--A police dog bit a police officer during a nighttime search for a burglary suspect in an abandoned building. Dog owners are usually strictly liable for dog bite damages. RCW 16.08.040. In other words, ifstrict liability applies, the injured person does nothave to prove that the owner was negligent or aware that the dog posed a threat. If

### strict liability applies in this case, it appears the only issue for thejury would be the amount ofdamages. However, there is a statutory exception to strictFinch v. Thurston County, et. a!., No. 91761-2 

### liability for dog bites caused by the "lawful application ofa police dog." RCW 16.08.040(2). This case asks us to decide whether the police dog was lawfully applied under the statute, thereby exempting the county from strict liability. We holdthatthe specially trained police dog was lawfully applied because he was performing ajob duty under the control ofa dog handler when the injury occurred. Therefore, we find the county is not subjectto strict liability. We affirm. BACKGROUND 

### OnNovember 14, 2010, BryentFinch, a Tumwater police offtcer, responded to a call to investigate a possible burglary in progress at the old OlympiaBrewery. After surveying the scene, Finchrequested a "K-9" unit to help search the brewery. Deputy Rod Ditrich ofthe Thurston County Sheriff's Office responded with his police dog, Rex. 1 

### The officers decidedthatFinch would assist Ditrich and Rex search thebrewery. The building was dark inside except for the officers' flashlights. Finch, Ditrich, and Rex entered the building, and Ditrich loudly announced their presence. When no one responded, Ditrich commanded

1The Thurston County Sheriffs Office and the Tumwater Police Department are parties to an interlocal cooperation agreement to assist each other in law enforcement operations when requested.
2Finch v. Thurston County, et. al., No. 91761-2 

### Rex to search thebuilding. Rex, unleashed, ran ahead ofthe officers, tracking the scent ofthe suspect in and out ofrooms. The officers followed Rex into a darkroom where the suspect was hiding. Ditrich called Rex backto him, saying "here, here, here." Clerk's Papers (CP) at 287. At this point, bothparties largely agree that Finch saw the suspect, that Finch shouted at him to show his hands, and that Rex bit Finch as Rex returnedto Ditrich. Ditrich had to physicallypull Rex offof Finch beforetaking the suspect into custody. Finch drove himselfto the hospital, where he underwent surgery for his injuries. Finch sued Thurston County and others on June 6, 2012 for his injuries, alleging negligence, outrage, and strict liabilityunderRCW 16.08.040. The next day, Substitute House Bill2191, 62d Leg., Reg. Sess. (Wash. 2012) came into effect, exempting "thelawful application ofa police dog" from strict liabilityunder RCW 16.08.040. LAWS OF 

### 2012, ch. 94, 

### § 1

(2). On cross motions for partial summaryjudgment, the trial court dismissedFinch's statutory strict liability claim. The trial court concluded that thebite occurred during a "lawful application ofa police dog," exempting the county from strict liabilityunder RCW 16.08.040(2) because thepolice dog was used "to aid an officer in searching an area." Verbatim

3Finch v. Thurston County, et. al., No. 91761-2 

### Report ofProceedings at 14-15. Finch voluntarily dismissed his remaining claims for negligence and outrage. Finch appealedthe dismissal ofhis strict liability claim, arguing that Rex's bite was not a lawful application ofa police dog. The Court of Appeals affirmed and held that the legislature had abolished strict liability claims for injuries resulting from lawfullyusedpolice dogs. 

### Finch v. Thurston County, No. 45792-0-II, slip op. at 1-2, http://www.courts.wa.gov/ opinions/pdf/D2%2045792-0-II%20%20Unpublished%200pinion.pdf. We granted review. 184 Wn.2d 1001, 357 P.3d 666 (2015). ANALYSIS 

### Finch argues that Thurston Countyis strictly liable for his dog bite injurybecause Rex's bite was not a "lawful application ofa police dog" within the meaning ofRCW 16.08.040(2). We disagree. Because Rex was being used by a law enforcement agency, was specially trained for law enforcement work, and was underthe control ofa dog handler when the bite occurred, Rex was lawfully applied for purposes ofthe strict liability exemption.

4Finch v. Thurston County, et. al., No. 91761-2 

### In 1941, the legislature enacted a statute, now codified as RCW 16.08.040, making a dog owner strictly liable for injuries causedbyher dog.2 

### LAws OF 

### 1941, ch. 77 

### § 1. The statute states: The owner ofany dog which shall bite anyperson while suchperson is in oron apublic place orlawfully in or on a private place including theproperty ofthe owner ofsuch dog, shall be liable for such damages as maybe sufferedbythe personbitten, regardless ofthe former viciousness ofsuch dog orthe owner's knowledge ofsuch viciOusness. RCW 16.08.040(1). In 2012, the legislature amended the statute, carving out an exemption from strict liabilityfor police dogs. 3 

### LAWS OF 

### 2012, ch. 94, 

### § 1 (adding subsection (2)). Under the exemption, strict liability "does not applyto the lawful application ofa police dog, as defined in RCW 4.24.410." RCW 16.08.040(2). RCW 4.24.410 defines a police dog as "a dog used by a law enforcement agency speciallytrained for law enforcement work and underthe control ofa dog handler." RCW4.24.410(1)(a). Unfortunately, neither statute defines the "lawful application ofa police dog." Bothparties argue the statute's meaning is plain on its face. If

2 Our Statewaived its sovereignimmunityin 1961 and extended that waiver to local governments in 1967. LAWS OF 1961, ch. 136, § 1; LAWS OF 1967, ch. 164, § 1. 3This amendmentbecame effective onJune 7, 2012, one day after Finch filed his complaint against Thurston County. Finchinitially argued to boththe trial court and the Court ofAppeals that thepolice dog exception applied prospectively and therefore did not applyto his case. See CP at 321-27; Finch, slip op. at 4. The Court ofAppeals rejectedthis argument, and Finch did not seekreview ofthat determination inhis petition ofreview to this court. Forthe purposes ofthis opinion, we assume without deciding that the amendment applies to this case. 5Finch v. Thurston County, et. al., No. 91761-2



### a "statute's meaning is plain on its face, then the court must give effectto its plain meaning as an expression ofwhatthe Legislature intended." 

### State v. JM, 144 Wn.2d 472, 480, 28 P.3d 720 (2001) (citing 

### State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000)). The court determines plain meaning "from the ordinary meaning ofthe language used in the context of the entire statute in whichthe particular provision is found, related statutory provisions, and the statutory scheme as a whole." 

### Bostain v. FoodExpress, Inc., 159 Wn.2d 700,708, 159 P.3d 846 (2007) (citing 

### State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). To detem1ine the plain meaning ofan undefined term, we may also lookto the dictionary. 

### Estate of Haselwoodv. BremertonIceArena, Inc., 166 Wn.2d 489, 498, 210 P.3d 308 (2009) (citing 

### Garrison v. Wash. State NursingBd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976)). "Application" has a number ofdefinitions, including "employment as a means: specific use." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 105 (2002). "Lawful" ' ' ' 

### is defined as "allowed orpermittedby law." WEBSTER's, 

### supra, at 1279. We find these definitions illuminating. Together, they define ''lawful application" ofa police dog as the (1) employment or specificuse ofa police dog (2) as allowed by law.

6Finch v. Thurston County, et. a!., No. 91761-2 

### State regulations have defined the specific uses that police dogs may be trained to carry out. Police dogs may be trained to assist in general patrol and investigations, tracking and trailing persons, building and vehicle searches, and drug and bomb detection. See 

### WAC 139-05-915(4). Police dogs may also be trained "solely for self-protection and assistance in hostile
or potentially hostile situations." WAC 139-05-915(4)(d). Thus, when a police dog is on duty and used for a purpose consistent with its training and certification, the police dog has been lawfully applied within the meaning of RCW 16.08.040(2) and strict liability will not apply
.

.Finch argues that there is an "application" ofa police dog under RCW 15.08.040(2) only when the handler orders the dog to bite someone. Pet. for Review at 15. This reading, however, does not take into account the myriad ofsituations police dogs are trained for, including training to bite in certain circumstances without a direct order. For example, police dogs are trained in "masterprotection"-toprotect their handlers in the event that the handler is attacked or injured-andwill bite the assailant without a command to do
so. See 

### WAC 139-05-915(4)(a)(xii), (d); see also 

### CP at 148. Butunder Finch's interpretation, municipalities would be strictly liable for any dog bite made without a command. Neitherthe plain language nor the legislative

7Finch v. Thurston County, et. al., No. 91761-2 

### history ofthe exemption supports this narrow interpretation. We decline to adoptit.4 

### In this case, the trained police dog, Rex, was on duty and was dispatched to the scene to be used for a specific purpose: to perform a building search for a suspect. At thispoint, Rex hadbeen lawfully applied for this particular situation. Although Rexbit someone who was not a "suspect" while he was lawfully applied, the county is not strictlyliable for those injuries. As the Court ofAppeals correctly statedbelow, "[t]he fact that Finchwas mistakenlybitten byRex does not convert a lawful use of Rex to an tmlawful use." 

### Finch, slip op. at 6. State action does not become unlawful merelybecause it was predicated on a mistake. 

### See generally ROGERJ. TRAYNOR, THERIDDLE OF HARMLESS ERROR3, 

### 9 (1970). Accordingly, wehold that the use ofRex was a lawful application ofa police dog andthattmder RCW 16.08.040(2), Thurston County is exempt from strict liability for the injuries to Finch. 5 

### Our decision is bolsteredby a

4The dissent seems to believe a properlytrained canine officer faced with an armed attackerthreatening its handler will notintervene tmtil the attackeruses the weapon. But "[d]etachedreflection cannotbe demandedin the presence ofan upliftedknife," regardless ofspecies. Brown v. UnitedStates, 256 U.S. 335,343,41 S. Ct. 501,65 L. Ed. 961 (1921). Thankfully, the canine officer, like any other, might well act to protect the officerbefore she is stabbed or shot. 5The approach advocated bythe dissent would require us to ask ajurywhether a defendantis subjectto strictliabilityby deciding somepredicate factual question. But whether strict liability applies to a category ofactivityis a question oflaw for the

8Finch v. Thurston Coun(y, et. al., No. 91761-2 

### recent decision ofa federal court concluding the exception applied when the police dog andpolice handler "me[]tthe requirements to be classified as a 'police dog' and 'dog handler,' respectively." Germain v. City of Seattle, 2016 WL 3017704, at *5 (W.D. Wash. May 25, 2016). Finch suggests that exempting municipalities from strict liability in instances such as this one would eliminate a remedy for "innocent" dog bite victims. Pet. for Review at 13-14, 20. We find this argument unpersuasive. WhiJe RCW 16.08.040(2) carves out an exemption from a strict liability statute, the exemption does not mean the police department or municipality is immune from suit in every instance a police dog bites someone. 6 

### The unavailability ofa strict liability claim does not preclude plaintiffs from pursuing other causes ofactions against municipalities, such as negligence, civil rights violations, or assault, along with or in lieu ofa strict liability
legislature or the. court to decide, not ajury. 16 DAVID DEWOLF & KELLER ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 3.3, at 130 (4th ed. 2013) (citing Langan v. Valicopters, Inc., 88 Wn.2d 884,567 P.3d 218 (1977)). We can find no case that left it to ajury to decide whether strict liability should apply categorically. The legislature is presumed to know the preexisting law, and ifit had intended to depart from this general rule, it would have said so. See Wynn v. Earin, 163 Wn.2d 361,371, 181 P.3d 806 (2008) (citing Price v. Kitsap Transit, 125 Wn.2d 456,463, 886 P.2d 556 (1994)). 6 The legislature has granted ill11l1unity to police dog handlers, but did not extend that immunity to local police departments or municipalities who ownthe police dogs. "Any dog handler who uses a police dog in the line ofduty in good faith is immune from civil action for damages arising out ofsuch use ofthe police dog or accelerant detection dog." RCW 4.24.410(2). This immunity for dog handlers, however, would not applyto situations where police officer used a police dog in bad faith.

9Finch v. Thurston County, et. a!., No. 91761-2 

### claim. 7 

### Arnoldv. Laird, 94 Wn.2d 867, 870-71, 621 P.2d 138 (1980) (citing 

### Ulmer v. FordMotor Co., 75 Wn.2d 522, 531, 452 P.2d 729 (1969)). "[A] negligence cause ofaction arises where there is ineffective control ofan animal in a situation where 

### it would reasonably be expected that injury could occur, and injury does proximately result from the negligence." 

### Id. at 871. Additionally, there could be situations where municipalities were negligent in adequately training or certifying a police dog for use in the field. Thus, a remedy may be available for plaintiffs for their injuries even ifstrict liability is not available.8
CONCLUSION 

### We hold that Thurston County is not subject to strict liability, as the deployment ofRex was a "lawful application ofa police dog" under RCW 16.08.040(2). The police dog, Rex, was on duty performing hisjobduties under the control ofa dog handler and was therefore lawfully applied when the injury to Finch occurred. Accordingly, we affirm.

7 Because Finch voluntarily dismissed his claim ofnegligence againstthe county, his recovery may be limited to his workers' compensation coverage. 8 We are not faced today with a case where the "application" ofa police dog violated the Fourth Amendment to the United States Constitution. We leave for another day whether such an.· encounter could possibly be a "lawful application" ofa police dog under RCW 16.08.040(2). 10Finch v. Thurston County, et. al., No. 91761-2



### WE CONCUR:

# .·~!AM~+.~

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II 7 (/Finch 

### v. Thurston County, etal.

No. 91761-2 MADSEN, C.J. (dissenting)-The majority holds that because the police dog here
was on duty, the strict liability imposed for dog bites under RCW 16.08.040(1) does not apply. This holding ignores the plain language ofthe exemption found in RCW 16.08.040(2) (discussed infra). The majority also sees no need to involve a fact finder in making determinations under the strict liability dog bite statute and its statutory exception, observing that the "category ofactivity" to which strict liability is to be applied "is a question oflaw for the legislature or the court to decide." Majority at 8 n.S. Here, the legislature has so determined in RCW 16.08.040 by imposing strict liability on dog owners when their dogs bite others, and by further providing a narrow exception to such liability. The question here is whether the exception applies, and that determination necessarily turns on the facts ofthe case. As explained herein, some facts essential to that determination are in dispute. Resolving such disputes is the proper role ofa fact finder, see State v. Holbrook, 66 Wn.2d 278, 279, 401 P.2d 971 (1965) (the function and province ofthejury is to weighthe evidence, determine credibility, and decide disputed questions offact), and as discussed herein, the presence ofsuch disputed facts renders the trial court's grant ofsummaryjudgment improper. Accordingly, I dissent.No. 91761-2 (Madsen, C.J., dissenting)
Discussion This case was dismissed on summaryjudgment. But, when the facts as alleged by Tumwater Police Officer BryentFinch are taken as true, as they must be, it is clear that the police dog that attacked and bit OfficerFinch was out ofhis handler's control, that the dog failed to obey his handler's recall command, and thatthe dog was notbeing lawfully applied by law enforcement when it attacked OfficerFinch. As discussed below, the dog bite statute, RCW 16.08.040, imposes strict liability on the owner ofany dog, including a police department, when a dog bites any person. The sole exception, which must be construed narrowly, as all exceptions are unless otherwise provided, applies to a police dog only when the animal is "lawfully applied." The dispute here is whether the dog that attacked and bit OfficerFinch was being "lawfully applied" when it bit OfficerFinch. Facts OnNovember 14, 2010, at 7 p.m., Officer Finchresponded to a call regarding a possible burglary in progress atthe shuttered Olympia Brewery in Tumwater, Washington. 1 When Officer Finch arrived on the scene, he contacted a security guard at the brewery. The security guard told OfficerFinch that a window had beenbroken in the large brewery building and it was unclear ifanyone was still inside. Officer Finch then requested that a police dog (a police 

### "K-9" unit) be brought to the scene. Clerk's Papers (CP) at 281.

1Another Tumwaterpolice officer, identified only as "Officer Hollinger," also responded to the scene. CP at 118, 281.
2No. 91761-2 (Madsen, C.J., dissenting) Deputy Rod Ditrich ofthe Thurston County Sheriffs Officeresponded to the call with his police dog, Rex. 2 The officers decided that OfficerFinch, Deputy Ditrich, and Rex would search thebuilding's interior while the security guard and Officer Hollinger remained outside. When OfficerFinch and Deputy Ditrich entered the building, Deputy Ditrich loudly announced three times, '"This is the Sherriffs Office, this building is going to be searchedby a Police K9, announce yourpresence, give up or you will be bit!"' CP at 287. The officers received no response and began their search ofthe building. Itwas dark outside whenthe search began, and there was no electricity or lighting in the building. The building was dark inside except for the officers' flashlights. The officers hadto maneuver around hazards including large holes in the floor where beer vats hadbeenremoved. OfficerFinchused his flashlight intermittently to avoid "backlighting"Deputy Ditrich and giving away his position to a potential suspect. CP at 120. Duringthe search, the police dog was not on a leash and was running in and out of
rooms and between the two officers. WhenRex detected the suspect's scent, he ran to a room at the front entryway of the building. Rex entered theroom first, followed by Deputy Ditrich, and then Officer Finch. Upon entering the room, Deputy Ditrich moved to the right and Officer Finch

2The Thurston County Sheriffs Office provides assistance in law enforcement operations reciprocally to the Tumwater Police Department and other city police departments in the 0lympia area pursuantto an interlocal cooperation agreement. See CP at 162-69. 3No. 91761-2 (Madsen, C.J., dissenting)
moved to his left, away from Deputy Ditrich. Due to the darkness, Officer Finch could not see the police dog. Shortly after entering the room, Officer Finch heard Deputy Ditrich say "'here, here, here."' CP at 122. Officer Finch interpreted these words as indicating that Deputy Ditrich had located the suspect and was signaling the suspect's location to Officer Finch. ButDeputy Ditrich was actually commanding Rex to return to him. Upon hearing Deputy Ditrich's command, Officer Finch noticed the suspect trying to hide in the far northeast corner ofthe room. Officer Finch loudly commanded the suspect, '"Hands, show me your hands!"' CP at 282. This occurred as Rex was complying with Deputy Ditrich's return command, butthe dog suddenly attacked Officer Finch, biting him in the groin and piercinghis right testicle. Officer Finch fell to the ground screaming as the dog continued tobite him. I-Ie repeatedly yelled for Deputy Ditrich to remove the dog. Deputy Ditrich ordered the suspect not to move, and he then had to physically pull the dog offofOfficer Finch.· OfficerFinch described the difficulty that Deputy Ditrich was having regaining control of the dog, stating, "It seemed like it took Deputy Ditrich at least one minute to get 'Rex' to release his bite on me." CP at 282. After Deputy Ditrich regained control ofRex and led the dog away from Officer Finch, he then took the suspect into custody. Officer Finch was bleeding from his scrotum and knew his injuries were "bad," but did not know the full extent ofthe damage to his testicles. CP at 283. He determined that he could get to the hospital emergencyroom faster by driving himselfin his patrol

4No. 91761-2 (Madsen, C.J., dissenting)

carrather thanbywaiting for an ambulance. Whenhe arrived atthe Providence St. Peter Hospital emergencyroom in Olympia, a urologist examinedhis injuries and determined that he shouldbetreated at Harborview Medical Centerin Seattle. An ambulance transported OfficerFinchto Harborview, and the urologist there determinedthat immediate scrotal surgery was necessary. CP at 283. The surgeryrevealed that the dog bite hadruptured OfficerFinch's right testicle, requiring removal ofone quarter ofthat damaged organ. Following the surgery, theurologist informed Officer Finch that while the remaining partial testicle could stillproduce testosterone, itwould no longerproduce sperm, and that during convalescence iftheblood supply to the partial testicle proved insufficient orthe organ was otherwise not viable, it wouldhave to be removed. OfficerFinchfiled a complaint on Jtme 6, 2012 for personal injuries, asserting claims against Thurston County (County) and others3 for negligence, outrage, and strict liability under RCW 16.08.040. On cross motions for partial summaryjudgment, the trial court dismissed OfficerFinch's statutory strict liability claim. The trial courtruledthatRCW 16.08.040(2), whichprovides that strict liabilityunderthe statute does not arise where an injuryresults from the "lawful application ofa police dog," precluded the claim. Verbatim Report ofProceedings at 14-15. Officer Finchthen voluntarily dismissed his remaining claims for negligence and outrage and appealed the dismissal ofhis strict liability claim. DivisionTwo ofthe Court ofAppeals affirmed in an unpublished opinion. Finch v. Thurston County, noted at 186 Wn. App. 1035, reviewgranted, 184

3 Original defendants included Thurston County, Thurston County Sheriffs Office, Rod Ditrich, and JaneDoeDitrich. CP at 336-37. 5No. 91761-2 (Madsen, C.J., dissenting)
Wn.2d 1001, 357 P.3d 666 (2015). OfficerFinch sought and was grantedreview inthis court on the single issue of"whetherthe dog bite injuryto Officer Finchresulted from the 'lawful application ofa police dog' within the meaning ofRCW 16.08.040(2)." Pet. for Review at 11. Standard ofReview Whenreviewing a motion for summaryjudgment, this court engages in the same inquiry as the trial court: the motion can be granted only ifthe pleadings, affidavits, depositions, and admissions onfile demonstrate there is no genuine issue as to any material fact and the moving party is entitledtojudgment as a matter oflaw. RangerIns. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008); CR 56(c). This court must consider all the facts and reasonable inferences in the light most favorable to the nonmoving party; the motion should be granted onlyifreasonable persons could reach but one conclusion. RangerIns., 164 Wn.2d at 552. Further, when construing a statute, as the court must do here, the court's goal is to carry out the intent ofthe legislature. Seven Gables Corp. v. MGM!UA Ent'mt Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986). The court's interpretation must make the statute purposeful and effective. !d. Undefined words in a statute mustbe given theirplain and ordinary meaning unless a contrary intent appears. Dennis v. Dep 't of Labor & Indus., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987). Definitions that are providedbythe

6No. 91761-2 (Madsen, C.J., dissenting) legislature "become integral to the statutory scheme." Seven Gables Corp., 106 Wn.2d at

RCW 16.08.040 Theprimary issue before this court is whether the dogbite to OfficerFinch falls within the "lawful application ofa police dog" exemption thatthe legislature added to the strict liability dog bite statute in 2012. The issue is resolved by applying the plain language ofthe strict liability dog bite statute, RCW 16.08.040. That statuteprovides in full: (1) The owner ofany dog which shallbite any person while suchperson is in or on apublic place or lawfully in or on a privateplace including the property ofthe owner ofsuch dog, shall be liable for such damages as may be sufferedbythe person bitten, regardless ofthe former viciousness of such dog or the owner's knowledge ofsuch viciousness. (2) This section does not apply to the lawful application ofa police dog, as defined in RCW 4.24.410. See LAWS OF 2012, ch. 94, § 1 (effective June 7, 2012) (adding subsection (2)). RCW 4.24.410, which also provides immunity to a dog handler who uses a police dog in the

4 We recently explained the appropriate analysis inBACHome Loans Servicing, LP v. Fulbright as follows: "[W]e strive to ascertain the intention ofthe legislature by first examining a statute's plain meaning." G-P Gypsum Corp. v. Dep 't of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,43 P.3d 4 (2002)). To glean the meaning ofwords in a statute, we do not look at those words alone, but '""all [ o:fJ the terms and provisions ofthe act in relation to the subject ofthe legislation, the nature ofthe act, [and] the general objectto be accomplishedand consequences thatwould result from construing theparticularstatute in one way or another.""' Burns v. City of Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007) (quoting State v. Krall, 125 Wn.2d 146,148,881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92 Wn.2d 128, 133, 594 P.2d 917 (1979))). 180 Wn.2d 754,766,328 P.3d 895 (2014) (emphasis added) (alterations in original). 7No. 91761-2 (Madsen, C.J., dissenting)
line ofduty in good faith, provides in relevant parthere, '"Police dog' means a dog used by a Ia"\ enforcement agency specially trained for law enforcement work and under the control of a dog handler." RCW4.24.410(1)(a) (emphasis added). Further, Washington lawrequires a dog handler to keep his orher police dog under control at all times. See WAC 139-05-915(5) ("It is the handler's responsibility to keep their canines under control at all times.") Relevanthere, by its plainterms, subsection one imposes liability on the "owner" of"any dog" thatbites "anyperson" who is lawfully in a private place. RCW 16.08.040(1).5 Reading the subsection (2) exemption together withthe definition section, the exemption from liability is triggered when (1) a police dog is appliedby its handler, (2) such application is lawful, and (3) the handler is in control ofthe dog. See RCW 16.08.040(2); RCW 4.24.410(1)(a). Taken in the light most favorable to Officer Finch, when the bite occurred, the dog was notbeing "applied" by its handler and thehandler
was not in control ofthe dog, thus, the exemption does not apply. First, there was no command to the dog at all regarding OfficerFinch, thus, there
was no application ofthe dog bythe handler. The County asserts, and the majority agrees, that the "lawful application" was "the application of[police dog] Rex for the

' Because this strict liability statute by its terms applies broadly to all owners ofany dog that bites any person, we should construe the exemption narrowly. Cf Cerrillo v. Esparza, 158 Wn.2d 194,202, 142 P.3d !55 (2006) (noting "'[e]xemptions from remedial legislation'" are "'narrowly construed'" (quoting Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 301, 996 P.2d 582 (2000))); W Ports Transp., Inc. v. Emp 't Sec. Dep 't, II0 Wn. App. 440, 460, 41 P.3d 510 (2002) (where Washington's definition ofcovered employment is exceedingly broad, its "exemptions must be read narrowly").
8No. 91761-2 (Madsen, C.J., dissenting) building search." Answer to Pet. for Review (Answer) at 10; see also majority at 4, 8. Butthat is not the application at issue concerning the bite to Officer Finch. The County admits that "[i]t is undisputed that Officer Finch was bitten after K-9 Rex was recalled by Deputy Ditrich." Answer at 17 (emphasis added). The application ofthe dog-to search the building for a burglary suspect-was over. The dog bit Officer Finch after being recalled and while acting on its own without a command from the handler. Thus, as to the dog bite at issue, there was no "application" ofthe dog within the meaning ofRCW 16.08.040(2). Second, the dog was not in the "control of [the] handler." RCW 4.24.410(l)(a);
see Suppl. Br. ofResp't at 12 ("There is no dispute that Deputy Ditrich, having recalled Rex, did not intend for Rexto seize or bite anyone atthe time of[Officer] Finch's injury."). Afterbeing recalled from searching the building and locating the burglary suspect, the dog attacked OfficerFinch, without a directive from its handler. As noted, it is undisputed that no one intended for the dog to attack OfficerFinch. Thus, the dog acted on its own in attacking Officer Finch. Moreover, it took Deputy Ditrich "atleast
one minute" to get Rex to release his bite on Officer Finch and the handler ultimately had to physicallypull the dog offofOfficer Finch and remove him from Officer Finch's location. CP at 282. Accordingly, it simply cannotbe said that the dog was under the control ofits handler when it bit Officer Finch. Although the dog and handler were in the
same location, and although it was the handler's responsibility to remain in control ofthe dog at all times, see WAC 139-05-915(5), such control was clearly not maintained here,

9No. 91761-2 (Madsen, C.J., dissenting)
otherwise OfficerFinchwould nothavebeen attacked. Accordingly, ajurycould so find andthereby determine thatthe exemptioncontainedinRCW 16.08.040(2) does not apply. 6Themajorityholds that Rex "was lawfully applied" for purposes ofRCW 16.08.040(2)'s strict liability exemptionbecauseRex (1) "was speciallytrained for law enforcement work," (2) "was being usedby a law enforcement agency," and (3) "was underthe control ofa dog handler whenthe bite occurred." Majority at 4.7 Butthese are questions for thejury. Inmyview, neither the majority's premise-thatthe handler was in control ofRex whenitbit OfficerFinch-norits conclusionbased onthatpremise is valid. Further, the majority's view leads to absurd results. Underthe majority's view, a police dog deployed byits handler with a commandto track and apprehend (fmd, bite and hold) a fleeing felon, whichthen tracked through a public parkmauling small children along the way, would fall within the exception. I disagree. Byits terms, the exemption applies onlyto a "lawful application." Inthe given example, the lawful application is the cmmnandto track, bite, andholdthe fleeing felony suspect. There is no "application" where the dog strays and engages in aggressive conductnot orderedbythe handler.

6Where thereis no application, the inquiryregarding the lawfulness ofsuch application does not anse. 7 Themajority cites Germain v. City of Seattle, 2016 WL 3017704 (W.D. Wash. May25, 2016), as bolsteringits view, but that case is distinguishable. See majority at 8. There, thepolice dog handler employedhis police dog to apprehend a suspect who was attempting to flee. The federal district courtheld that the RCW 16.08.040(2) exemption applied and dismissed the defendant arrestee's RCW 16.08.040 strict liability claim against the cityofSeattle. That is notthe circumstancehere. 10No. 91761-2 (Madsen, C.J., dissenting) Further, while the dog is attacking the children, the handler is not in control ofthe dog and, thus, there is no lawful application as to the action in question-the attack on the children. Similarly here, the attack on Officer Finch was beyond the scope ofthe handler's directive and the handler was not in control ofRex when Rex attacked Officer Finch. Under such circumstances, ajury could conclude that the exemption does not apply. The majority reasons that as long as apolice dog is employed in a specific use for which the dog was trained, it is necessarily '"lawful[ly] appli[ed],"' thereby triggering the exemption. Majority at 6. As explained above, I disagree that such initial deployment of
a police dog necessarily immunizes any and all ofthe dog's conduct thereafter. The majority notes the specific uses that police dogs may betrained to carry outto include patrol and investigation, tracking, searches, and specific substance detection. See id. (citing to WAC 139-05-915(4)). Notably lacking from that list is the undirected attack of
apolice officer. Further, the regulation on which the majority relies expressly requires that a dog handler keep his dog under control at all times. See WAC 139-05-915(5). The majority also notes thatpolice dogs are trained to protect their handlers; thus, "in the event that the handler is attacked or injured[, the dog] will bite the assailant without a command to do so." Majority at 7 (citing WAC 139-05-915(4)(a)(xii), (d)). Butthere is no evidence that the handlerwas "attacked or injured." Thus, it cannotbe said that the dog here acted consistent with its training. And in any event, this is for the jury to decide.

11No. 91761-2 (Madsen, C.J., dissenting)
The majority asserts thatthe "parties largely agree" about the circumstances surrounding OfficerFinch's injury. Majority at 3. In fact, the parties disagree about particulars surrounding the dogbite, particularly where OfficerFinchwas and whathe
was doing when the dog bithim. The County asserted at oral argumentthat a police dog is trained to bite without a commandwhen the dogperceives a threat to the handler. 8 That assertion overstates therecord. Notably, the County argued in its briefingthat police dogs are trained to respond when the handler is assaulted. See Answer at 12 ("[W]here an officer is assaulted, police dogs are trained to attack and bite the assailant."); Suppl. Br. ofResp'ts at 9 ("[W]hen a canine handler is assaulted, police dogs
are trained to protectthe handler by attacking and biting the assailant.") The evidence the County points to regarding a police dog's training to protect its handler concerns certificationtests for the handler and dog. In suchtests, a decoy "assault[s]"the handler (after approaching and conversing with the handler for a while) in orderto test the dog's protectiveresponse. CP at 148. There is no test noted for anyperceivedthreatto the handler otherthan a physical assault. See id. In thepresent case, there is no suchphysical assault onthe police dog's handler, Deputy Ditrich. Inmy view, inthe absence ofsuch assault, the threshold requirement for
a "perceivedthreat" to the handler (based on the County's evidence concerningpolice 'The County asserted at oral argument that police dogs are trained to bite in three circumstances: (I)pursuantto abite and hold command when searching for orpursuing a :fleeing suspect, (2) when a suspect attacks the police dog, and (3) when the police dog "perceives" athreat to the handler. See Wash. Supreme Court oral argument, Finch v. Thurston County, No. 91761-2 (Jan. 19, 2016), at 25 min., 15 sec. to 25 min., 50 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. 12No. 91761-2 (Madsen, C.J., dissenting) dog training) is not met. On thatbasis, the police dog here was not acting in accordance with its training. Accordingly, ajury could fmd that there was no application ofthe dog (per its training) sufficient to trigger the RCW 16.08.040(2)'s statutory exemption. Even ifthis court accepts the County's assertion at oral argumentthat the dog is trained to respond to aperceivedthreatto the handler (i.e., something short ofan actual physical assault ofthe handler), summaryjudgment for the County would still be improper because the parties' different versions ofOfficer Finch's conduct at the time of the bite raises a material fact dispute about whether there was athreat to the handler. Deputy Ditrich's "K-9 Usage Report" states thatwhen Deputy Ditrich recalled the police dog with the command '"here, here, here,"' "OfficerFinch quickly came up to me and as he reached my location (just as K9 Rex was returning to me), he saw the suspect ... and began shouting 'Showme your hands, Show me your hands!'" CP at 287. "K9 Rextook
someone approaching mefrom behindrapidly andshouting, as a threat to me and immediately made contact with [i.e., bit] Officer Finch." 

### !d. (emphasis added). Officer Finch describes events differently, contending that at the relevant time he spoke in a "commandingvoice but [he] wasn'tyelling or ... screaming." CP at 124. More importantly, Officer Finch contends that as he ordered the suspect, he was "stationary" and not moving, standing some "eightto ten feet" to the left ofDeputy Ditrich and parallel to Deputy Ditrich as Officer Finch commanded the suspect. CP at 123. "Atno time prior to being bit did I approach Deputy Ditrich giving 'Rex' a reason to think he needed to protecthis handler." CP at 282. "Atno time, did I get between

13No. 91761-2 (Madsen, C.J., dissenting)
'Rex' and Deputy Ditrich, nor did I position myselfbetween 'Rex' and the suspect. When I got attacked, I was standing still with my duty weapon [at the]lowready. 

### Id. "[P]riorto getting attacked by 'Rex,' DeputyDitrich, the suspect and I were [standing] in
a triangle shape." 

### Id. The only evidence cited by the County concerning a police dog's training addressing protection ofits handler indicates that the dog is trained to respond to a physical assault ofthe handler. Here, there is no physical assault on the handler. Even if this court accepts the County's position at oral argument thatthepolice dog inthis instance was responding to a perceivedthreatto its handler (short ofa physical assault), summaryjudgmentwas not appropriate becausethe parties offer vastly different versions ofOfficerFinch's conduct leading up to the bite incident. Either way, thetrial court's grant ofsummaryjudgmentto the County was error.9 Further, in granting the County's summaryjudgmentmotion and denying Officer Finch's summaryjudgmentmotion, the trial court explained thebasis ofits ruling concerning the exemption question as follows: Withregard to the argument on the lawful application ofa police dog, the Court does find that where apolice dog is being used in a situation such as

9 The majority chides the dissent for "believ[ing] aproperly trained canine officer faced with an armed attacker threatening its handler will not intervene until the attacker uses the weapon," and applauds any police dog that in such circumstance would "act to protect [its handler] before [the handler] is stabbed or shot." Majority at 7 n.4. The majority misconstrues the dissent's discussion, which focuses on the evidence available in the record concerning police dog training addressing handler protection. More to the point, whether the police dog here was "faced with an armed attacker threatening its handler" is a disputed material fact question, as discussed above.

14No. 91761-2 (Madsen, C.J., dissenting)
this where the police dog is being used to aid an officer in searching an area, that's one thing, as opposedto having a police dog who normally goes home at nightwith their handler, getting out ofthe backyard and biting the neighbor. That in no way was the dog working at thatpoint. RP at 14-15. It is apparent thatthe trial courtbelieved that so long as the dog is "working," thatis, any time the dog is on duty and "aid[ing]" an officer, the exemption applies. 10 

### /d. But such a broad application ofthe exemption ignores theprerequisites for triggering the exemption andthe parameters ofthat exemption, as discussed above. The majority also notes that the RCW 16.08.040(2) exemption negates strict liability imposed by RCW 16.08.040(1) butotherwise does not confer immunity on the county as owner ofthe police dog, thereby leaving otherremedies available to plaintiffs. Butthe fact that otherremedies may be available to a person attacked by a police dog is irrelevant to the present inquiry, which concerns the particulartriggers andparameters of the statutory exemption from strict liability for dog bites under RCW 16.08.040. Legislative Intent Althoughthis case turns onthe plain language ofRCW 16.08.040(2), as discussed above, the record includes comments at a senate hearingby the bill's legislative sponsor

10 The majority agrees with the trial court that the exemption applies whenever an on duty police dog has been deployed. The majority concludes that the police dog here was "lawfully applied" because it "was on duty performing [its]job duties under the control ofa dog handler." Majority at I0. But, as discussed, while the dog was indeed on duty, the undirected biting ofanother officer is not one ofthe dog'sjob duties, and whether the dog was under the handler's control at the time ofthe bite is disputed. Notably, the majority acknowledges that a police dog being "under the control ofa dog handler" is one ofthe prerequisites for application ofthe exemption. Majority at 5. But the majority merely assumes that this requirement is met, repeating throughout the opinion that the dog was "under the control ofa dog handler," while ignoring that this is a disputed factual issue. See majority at 2, 4, 10. As discussed herein, ajury could find otherwise. 

### 15No. 91761-2 (Madsen, C.J., dissenting) regarding the amendment's purpose. The sponsorindicatedthat the purpose ofthe amendment is to avoid frivolous lawsuits by arrestees. At the Febmary 21, 2012 hearing beforethe Senate Judiciary Connnittee, the bill's sponsor, Representative AnnRivers, identifiedthe concernthat this portion ofthe proposedlegislation addressed as "the cottage industrythat's poppingup where criminals can sitinjail
... and write frivolous lawsuits against municipalities
... because dogs, police dogs, are ... doing thejobthat
we ask [it] to do." CP at 197. Itis clear that the dog here was not "doing thejobthat we ask themto do" whenitbit OfficerFinch. Itis also clearthat the legislature intendedthe exemptionto apply only whenthe dog is being appliedby a handler and is underthe control ofthehandler. Moreover, the amendment waspart ofa largerbill that imposed civil penalties on persons who kill orinjure police dogs. See LAWS OF 2012, ch. 94, §§ 1-2 (Substitute H.B. 2191, 62dLeg., Reg. Sess. (Wash. 2012)). The bill was promptedbytwo incidents inthe sponsor's legislative district inwhichpolice dogs were stabbedto deathbypersons attempting to "evade arrest." CP at 175, 180 (comments byRepresentative AnnRivers at the January 18,2012 hearing before the House Public Safety andPreparedness Committee). The "heart ofthe bill" was shifting a portion ofthe suhstantial expense of acquiring andtraining a police dog (some $40,000) to the perpetratorresponsible for the law enforcement agency's loss ofthe dog. CP at 176, 202-03. Clearly, the legislation addresses issues arising from the contact ofpolice dogs with arrestees. Considering this

16No. 91761-2 (Madsen, C.J., dissenting) history, it is obvious that Officer Finch's case does not concern the type ofclaim that the amendment was intended to preclude. Finally, requiring a more exacting construction of"lawful application" thanthe majority or the courts below employed comports with the policy considerations underlying this case. I acknowledge thatpolice dogs provide "provenbenefits for effective law enforcement." Robinette v. Barnes, 854 F.2d 909, 914 (6th Cir. 1988); see also id. at 914 n.6 (noting police dogs are "well-known" for their ability to track and apprehend criminals, detect drugs, and locate missing persons and lost articles). Courts have aclmowledged thatpolice dogs function as the handling officer's tool and "'weapon."' Andrade v. City of Burlingame, 847 F. Supp. 760,764 (N.D. Cal. 1994) (police dog is "one 'weapon' in [the handler's] arsenal"); Weekly v. City of Mesa, 181 Ariz. App. 159, 165, 888 P.2d 1346 (1994) ("no difference between apolice officer directing a dog to attack aperson" and the officer "directing ablow at apersonwith a baton"); see also CP at 183-85 (testimonybefore house committee describing police dogs
as important tools used by officers and "anextension ofthe officer"). Butpolice dogs can also be "threatening" and "dangerous." Robinette, 854 F.2d at 913 (aclmowledging thatpolice dog canbe a dangerous law enforcement tool: "The dogs' abilityto aid law enforcement wouldbe minimal ifthey didnot possess this trait"). 11 Andthe use ofpolice dogs has on occasion caused serious injury and even

11 Cf. State v. Hoeldt, 139 Wn. App. 225, 230, 160 P.3d 55 (2007) ("Because a dog is an instmment that canbe used to cause death or substantial bodilyhann, weholdthat a dog canbe a "deadlyweapon" under RCW 9A.04.110(6)."). 17No. 91761-2 (Madsen, C.J., dissenting)
death. See, e.g., Watkins v. City of Oakland, 145 F.3d 1087, 1090-91 (9th Cir. 1998) (victim ofpolice dog attack sustained severe lacerations, fractures, and tendon damage necessitating two skin graft surgeries); Robinette, 854 F.2d at 911 (victim ofpolice dog attack killed when bitten onthe neck). The fact thatpolice dogs (i.e., thinking weapons) can, on occasion, make mistakes is an unfortunate reality. See Robinette, 854 F.2d at 912 (police dog acted "consistentwith its training" and yet accidentally killed suspect); see alsoAndrade, 847 F. Supp. at 762 (police dog attacked two children during traffic stop, biting the girls' heads and causing injuries and psychological trauma). Law enforcement agencies' decision to utilize such tools mustbe balanced against the riskto the public of unintended attacks. The legislature has balanced suchrisks by requiring exacting and limiting conditions to trigger the exemption at issue here. In my view, the courts below and the majority's approach too broadly apply RCW 16.08.040(2)'s exemption any time
a trained police dog is on duty. That is not what the plain language ofthe statute requires. Conclusion RCW 16.08.040(2) provides an exemption from RCW 16.08.040(1)'s strict liability for dog bite injuries where the bite results from a "lawful application ofa police dog." Here, taking the facts inthe light most favorable to OfficerFinch, the police dog bite to Officer Finch occurred when the dog was not under the handler's control and when the dog strayed from the handler's directives. In my view, under such facts, the bite does not fall within the "lawful application ofa police dog" necessary to trigger the

18No. 91761-2 (Madsen, C.J., dissenting) exemption. The disputed facts concerning the circumstances surrounding the dog bite raise a fact question onthis issue foreclosing summaryjudgment. The trial court and Court ofAppeals erred in determining otherwise. The court should reverse the trial court's summaryjudgment dismissal ofOfficer Finch's strict liability claim and remand for further proceedings. Forthese reasons, I dissent.

19No. 91761-2 (Madsen, C.J., dissenting)

20