Dog Attack Victim Sues San Diego Dept. Of Animal Services

Nancy Matthews, a veterinarian, is suing the San Diego Department of Animal Services for injuries suffered during an attack by two boxer dogs more than a year ago. She has filed an amendment to the lawsuit she filed last November, according to the North County Times. Matthews said she spent six days in the hospital after the attack, which left her with bites and scars over most of her body.

The civil lawsuit alleges that county animal officials knew the dogs had previously bitten two people and didn’t take appropriate action to prevent them from attacking again. After the original filing the county’s counsel requested a dismissal of the lawsuit arguing that the department was not negligent or legally responsible for the dog’ actions. The court ruled in favor of the county and gave Matthews an opportunity to amend her lawsuit.

County counsel George Brewster has stated, even before seeing the amended lawsuit, that he plans to ask the court once again to dismiss the Matthews lawsuit.

There is not way that Matthews is going to prevail in this lawsuit. It will have taken some clever drafting of the amended lawsuit by her attorney to get by Brewster’s next request of the court to dismiss this lawsuit. Even if she does get by the county’s motion to dismiss the complaint, she’ll have tough time proving her case. If she fails, she will be subject to paying the county’s costs of defending itself.

For someone to be liable for this dog attack, they must either be an owner of the dogs (strict liability) or a keeper of the dogs with knowledge of the dogs’ dangerous propensities yet did not do enough to protect Matthews (negligence).

Since the animal control department is not an owner or keeper of the dogs, the only chance of establishing the department’s liability is that it had a mandatory duty to impose death or restrictions on the dogs and that their failure to carry out that duty was the legal cause of Matthews injures.

If the judge were to decide that the department had a mandatory duty to conduct a hearing which would have for sure resulted in the imposition of restrictions on the dogs’ owner as a condition of keeping the dogs AND that the dogs’ owner would have complied with those restrictions and that as a result of compliance with those restrictions Matthews would not have been attacked, then Matthews would have stated enough facts for her lawsuit to go forward. She would then have to carry her burden of proof on all of these issues before she would be successful in obtaining a recovery from the department.

For those of us who are constantly representing dog attack victims, this is a very interesting case. We’ll be watching to see how Matthews’ attorney overcomes the significant legal hurtles to holding the county liable for Matthews’ injuries. I do not think she can or should win.

Besides, government employees are immune from claims of liability for the consequences of their discretionary acts, where they are given discretion. Gov Code 820.2. The entity which is responsible for that employee is also immune from such a suit. Gov Code 815.2. This includes the “failure to enforce an enactment”. Gov Code 821. The only way out would be if the public entity had a mandatory duty, imposed by the legislation creating the duty, to act in a particular way unless the public entity “exercised reasonable diligence to discharge the duty”. Gov Code 815.6.

A situation similar to this “you should have removed this dangerous dog from the community” argument is the “this bad guy should have been arrested and jailed” argument. Gov Code section 846 says “Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody”.

Matthews’ has a better chance of the dogs’ owner winning the lottery and then paying her an appropriate sum for her injuries.

So why would Matthews and her attorney file a lawsuit with so little chance of winning? Maybe he and Matthews feel that by bring this lawsuit and all of us reading and writing about it, attention will be drawn to the problem and their will be stricter enforcement by animal control and/or the county will pass stricter laws concern aggressive dogs.