Thursday, June 15, 2017
County Might Be Liable for Killing of Woman by Dogs
Justice Collins Says That Under the Facts Pled, Governmental Immunity Would Fall, Citing Mandatory Duty to Impound Dogs Who Are Stray, Unlicensed or Running at Large
By a MetNews Staff Writer
The County of Los Angeles faces possible liability, under a Court of Appeal decision yesterday, for the wrongful death of a woman who was attacked, while taking a morning stroll, by four pit bulls who had jumped over a fence.
Alex Jackson, owner of the dogs—who were guarding his marijuana operation—was sentenced in 2014 to five years to life in prison for second degree murder.
Yesterday’s decision reverses a judgment of dismissal that was entered after Los Angeles Superior Court Judge Mel Red Recana sustained demurrers without leave to amend based on governmental immunity. It also affirms the judgment to the extent Recana barred two causes of action which the plaintiffs—the husband and daughter of the deceased—indicated on appeal they did not wish to pursue.
The unpublished opinion instructs that the trial court overrule the demurrers to causes of action for causes of action for negligence, public nuisance, and wrongful death, and allow the plaintiffs to amend the complaint to allege compliance with the government claims statute or set forth why noncompliance should be excused.
Exception to Immunity
Writing for Div. Four of this district’s Court of Appeal, Justice Audrey Collins said that Government Code §815.6 sets forth an exception to government immunity “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury.” It imposes liability “for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
The jurist noted that the County Code §10.12.090 says the director of the Department of Animal Care and Control “shall capture and take into custody” unlicensed or stray dogs or dogs “running at large.” The word “shall,” she noted, rendered the duty “mandatory.”
Taking as true the allegations of the complaint, demurrers should not have been sustained, she said, because it was averred that the department failed to carry out its mandatory duty.
The department had cited Jackson for having dogs that were unlicensed, and he admitted that they were strays.
“The dogs therefore fell within at least one of several categories of dogs that ‘shall’ be impounded,” Collins wrote, “and there was no discretionary action necessary.”
Allegations of Complaint
The complaint alleged that the county had actual knowledge that packs of pits bulls had in the past escaped from Jackson’s property and attacked people, as well as their pets and livestock. At Jackson’s trial, evidence was adduced that seven altercations involving his dogs were reported to department in the 18 months preceding the May 9, 2013 attack on Pamela Devitt, 63.
She died on the way to the hospital from loss of blood. There were 150 to 200 puncture marks and one of her arms was severed.
The attack took place in Littlerock, an unincorporated area north of the San Gabriel Mountains.
A letter from “Concerned employees” who worked in the department’s animal shelter in Lancaster had written to higher-ups in the department management and to the Board of Supervisors, prior to the attack on Devitt, telling of the situation in Littlerock. They alleged that the department was failing to “enforce proper processes and procedures that would have resulted in the dogs being impounded, and to properly respond to complaints from the public over several months seeking protection from dogs running at large from the Jackson property and attacking people and livestock in the…area.”
Notwithstanding that letter, the county did not act to impound the dogs.
(Marcia Mayeda, director of the department at that time, has retained her position.)
The county argued on appeal that the ordinance is “not designed to protect against the risk of mauling death.” Rather, it insisted, it was in the nature of a licensing law, as evidenced by the “de minimis monetary penalty for maintaining unlicensed dogs” and because the ordinance “does not otherwise evidence an intent to prevent the public from physical harm.”
“The apparent object to be achieved by LACC section 10.12.090 is to ensure the capture of dogs that do not meet certain criteria, and have those dogs sequestered. The requirement that stray dogs, unlicensed dogs, and dogs running at large be captured and taken into custody suggests that the purpose of the ordinance was to capture dogs that lacked responsible ownership, and contain them in a space away from the public. The removal of certain dogs from public areas was not an “incidental benefit resulting from a procedural licensure provision,” as defendants argue. If that were the case, licensed dogs running at large, licensed sick dogs, or licensed injured dogs—all of which are subject to capture under LACC section 10.12.090—would not be included in the statute. Rather, the main thrust of LACC section 10.12.090 makes clear that dogs not meeting certain criteria are to be separated from the public and contained within a shelter.”
“The director shall place animals taken into custody in the county animal shelters or appropriate facilities.”].)
The case is Devitt v. Los Angeles County Department of Animal Care and Control, B270577.
The Devitts were represented by William E. Wegner of Davies Wegner Law Corp., Olesia Levine and Eric Levine of The Levine Firm, and Jeffrey I. Ehrlich. Deputy County Counsel Diane C. Reagan was joined by Justin Reade Sarno and Jill Williams Carpenter of Rothans & Dumont in presenting arguments for the county.
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