FILED 

### COURT OF APPEALS DIVISION II 

### 2015 JAN 21 

### AM 9: 05

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II HAROLD RATH, Appellant/ Cross - Respondent,

v. GRAYS HARBOR COUNTY, a municipal corporation and political subdivision of the State ofWashington, Respondent/ Cross - Appellant. No. 45076 - 3 -II

UNPUBLISHED OPINION

LEE, J. — Harold Rath appeals the judgment entered in favor of Grays Harbor County 

### following ajury trial on his claim that the County was liable for injuries suffered when he was bitten by a police dog during his arrest. The County cross - appeals the trial court' s order denying its motion for summary judgment arguing that the trial court erred by denying its motion for 

### summaryjudgmentwhenthe legislature abolished Rath's cause ofaction before trial. Because the legislature may abolish a statutorily created cause of action at any time, Rath no longer had a causeNo. 45076 - 3 -II

of action when the legislature' s amendment became effective. Therefore, Rath' s appeal is moot. 

### Accordingly,we dismiss Rath's appeal.1 FACTS 

### On August 4, 2009, Grays Harbor County Sheriff's Deputy Kevin Schrader was on patrol 

### when he observed apickup truck creating a large cloud ofdust. Schrader initiated atraffic stop of 

### the truck. After attempting to hit Schrader's patrol vehicle,the driver ofthe truck sped down the road. Schrader identified Rath as the truck driver. Ultimately, Rath drove down a dirt road, swam

across a river, and escaped. Schrader identified the truck as stolen. A 12 -gauge shotgun was found in the truck. And, 

### atthe time,there was a felony arrest warrant authorizing Rath' s arrest on first degree kidnapping. Rath spent the next fewweeks evading law enforcement in orderto prevent being arrested. On August 19, 2009, the Grays Harbor Sheriff s Office received information that Rath was in a trailer at a recreational park (RV) park in Hoquiam. Deputy Robert Crawford responded to 

### the RV parkwith another deputy. Crawford was a K - 9 handler and had his patrol canine, Gizmo,
with him. 

### Although the responding deputies repeatedly ordered Rath to surrender, Rath did not
exit the trailer. Crawford deployed Gizmo to effectuate Rath' s arrest. 

### Rath immediately began striking and fighting Gizmo, buthewas quicklysubdued and successfully arrested. Rath sustained numerous injuries and was transported for medical care after his arrest.



### 1 The County states that we do not need to consider its cross - appeal ifthe court's judgment is affirmed. Because we dismiss Rath' s appeal as moot, the trial court' s order remains unchanged and we do not address the County' s cross - appeal. 2No. 45076 - 3 -II On March 23, 2012, Rath filed a civil complaint for strict liability damages underthe strict 

### liability dog bite statute, RCW 16.08.040. Atthe time Rath filed the civil complaint,former RCW 16. 08. 040 ( 1941) was in effect and stated, in relevant part: 

### The owner ofany dog which shall bite any person while such person is in or on a. public place or lawfully in or on aprivate place including the property ofthe owner 

### of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless ofthe former viciousness ofsuch dog or the owner' s knowledge of such viciousness. On June 7, 2012, the legislature added section (2) to RCW 16. 08. 040 which reads: " This section does not apply to the lawful application of a police 

### dog, as defined in RCW 4.24.410." LAws OF 2012, ch. 94, § 1.

In December 2012, the parties filed cross motions for summary judgment. Rath argued 

### that the strict liability dog bite statute applied to police dogs owned by the County and there was no genuine issue of material fact. Therefore, he was entitled tojudgment as a matter of law. The 

### County moved for summaryjudgment arguing ( 1) the 2012 legislative amendments to the strict liability 

### dog bite statute — which specifically excluded "the lawful application ofa police dog" — 

### terminated Rath's cause ofaction; and (2) Rath was not lawfully in the trailer atthe time Gizmo bit him. The trial court denied both motions for summaryjudgment. 

### After thejury entered a verdict finding that Rath was not lawfully in the trailer, the trial court enteredjudgment forthe County and dismissed.Rath's claims with prejudice. Rath appeals, and the County cross appeals.

3No. 45076 - 3 -II
ANALYSIS 

### Rath argues thatthe trial court erred by denying his motion for summaryjudgment and by 

### improperly instructing thejury onthedefinition oflawfully. The County arguesthatthetrial court 

### erred by denying its motion for summary judgment because the 2012 amendment to the strict liability dog bite statute eliminated Rath's cause ofaction. Because the legislature has abolished Rath's cause ofaction, Rath has no remaining cause ofaction and his current appeal is moot. On March 23, 2012, Rath filed his civil complaint under former RCW 16.08.040. But, on June 7, 2012, Laws of 2012, ch. 94, § 1 amended RCW 16.08.040 by adding a section that read: 

### This section does not apply to the lawful application of a police dog, as defined in RCW 4.24.410." A plaintiff has no vested right in a tort action until final judgment has been entered in his or herfavor. Hansen v. West Coast Wholesale Drug Co., 47 Wn.2d 825, 827, 289 P.2d 718 ( 1955). Where atort action can be broughtonly byvirtue ofastatute, there can be no vested righttherein,
and the Legislature may take away the right at any time.' Hansen, 47 Wn.2d at 827 ( quoting Robinson v. McHugh, 158 Wash. 157, 164, 291 P. 330 ( 1930), aff'd, 160 Wash. 703, 295 P. 921 1931)); Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wn.2d 584, 587, 478 P.2d 232 ( 1970). Here, Rath' s claim was under former RCW 16. 08. 040. Because Rath' s claim was derived solely from a statute, he had no vested interest in the claim unless ajudgment was entered in his favor. There was nojudgment entered in Rath' s favor atthe time the statute was amended; therefore, any 

### claimthat Rath may have had under former RCW 16.08.040 was abolished by the legislature.

4No. 45076 - 3 -II Once an appellant has been divested ofhis or her cause ofaction,the appeal becomes moot. Hansen, 47 Wn.2d at 827. Because the legislature divested Rath of his claim under former RCW 16. 08.040 when Laws of 2012, ch. 94, § 1 became effective, Rath' s appeal is moot. We dismiss Rath' s appeal as moot. 

### A majority of the panel having decided that this opinion will not be printed in the Washington Appellate reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

5