FILED
COURT OF APPEALS DIV
STATE OF WASHINGTON
2018 OCT 22 AM 10: 1 14
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KARY L. CALDWELL, )
) No. 78159-6-1
Appellant, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
GRAYS HARBOR COUNTY, a )
governmental entity; JENNIFER M. )
SMITH and JOHN DOE SMITH, )
individually and the martial community )
composed thereof; SHAWN M. SMITH )
and JOHN DOE SMITH, individually )
and the marital community composed )
thereof; JAMES THOMPSON and )
JANE DOE THOMPSON, individually )
and the marital community composed )
thereof, )
)
Defendants, )
)
and )
)
CITY OF HOQUIAM, )
)
Respondent. ) FILED: October 22, 2018
)
BECKER, J. — Appellant Kary Caldwell was attacked by a dog that had
been declared dangerous by the City of Hoquiam. She brought suit against
Hoquiam. This dispute was previously before this court in Caldwell v. City of
Hoquiam, 194 Wn. App. 209, 373 P.3d 271, review denied, 186 Wn.2d 1015
(2016). In this appeal, Caldwell argues that Hoquiam's duties under its animal
control ordinance were owed to her under the legislative intent exception to the
No. 78159-6-1/2
public duty doctrine. We need not decide whether the legislative intent exception
applies, because even if it does, the ordinance does not create a duty to act
before the dangerous dog declaration becomes final.
FACTS
Shawn Smith owned a large dog named Temper. On August 11, 2009,
the City of Hoquiam's animal control officer, Robert Hill, responded to a call that
Temper was viciously attacking another dog. Because this was not Temper's
first incident of attacking another dog, Hill informed Smith that Temper would be
declared a dangerous dog under Hoquiam's dangerous dog ordinance, Hoquiam
Municipal Code(HMC)3.40.080. Hill served Smith with a dangerous dog
declaration. He left without impounding Temper.
Once a dog has been declared dangerous, the owner is subject to five
requirements under HMC 3.40.080. These include maintaining a proper
enclosure for the dog, posting visible warning signs, obtaining a dangerous dog
license from the city, muzzling the dog whenever it is outside its enclosure, and
maintaining an insurance policy in the amount of $250,000. HMC 3.40.080(5).
Smith timely appealed the dangerous dog declaration to the Hoquiam
Municipal Court. See HMC 3.40.080(4). On September 1, 2009, the municipal
court affirmed the declaration that Temper was a dangerous dog and ordered
Smith to comply with the dangerous dog requirements within 10 days. According
to Officer Hill, Smith had until 5:00 p.m. on Friday, September 11, to comply.
The record indicates that Smith moved out of Hoquiam on or before
September 10. Officer Hill visited Smith's residence on September 14, 2009, his
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next working day after the expiration of the grace period. No one answered the
door. Hill left a notice. Two days later, Hill returned. Smith's landlord told Hill
that Smith had moved out and taken Temper with her.
Hill asked the landlord to tell Smith to contact him. Hill notified
neighboring Grays Harbor Animal Control and Aberdeen Animal Control, as an
advisory, that Smith was in violation of Hoquiam's dangerous dog ordinance.
According to Hill, he took no further action because he lacked "jurisdiction or
investigative powers to go outside the city limits."
On September 26, 2009, Kary Caldwell visited James Thompson at his
apartment in Kent. Thompson lived with Smith's daughter and was taking care of
Temper. Temper attacked Caldwell, fracturing her arm in 10 places.
Caldwell brought suit against Hoquiam, alleging that the city had a duty to
impound Temper immediately upon declaring it a dangerous dog. The trial court
granted partial summary judgment in favor of Caldwell solely on the question of
whether Hoquiam owed Caldwell a duty. The court held that Hoquiam owed
Caldwell a duty to impound Temper immediately on August 11 when Hill served
Smith with the dangerous dog declaration. A jury found that Hoquiam breached
that duty and awarded Caldwell $435,000.
Hoquiam appealed. This court reversed. We concluded there is no duty
under the Hoquiam ordinance to enforce a dangerous dog declaration upon
service by immediately impounding the dog. Caldwell, 194 Wn. App. at 221.
On remand, Caldwell moved for summary judgment on the alternative
theory that "the City of Hoquiam Municipal Code demonstrates a clear legislative
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intent to identify, protect and compensate human beings who come into contact
with dangerous dogs, including the plaintiff Kary Caldwell." The trial 'court denied
Caldwell's motion.
Caldwell appealed the denial directly to the Washington Supreme Court
under RAP 4.2. The court concluded that there were no remaining legal claims
to be decided and then transferred the appeal to this court.
ANALYSIS
In Washington, government entities are liable for their tortious conduct to
the same extent as a private person or corporation. RCW 4.92.090; RCW
4.96.010; Washburn v. City of Federal Way, 178 Wn.2d 732, 753, 310 P.3d 1275
(2013). Consequently, a plaintiff claiming that a municipality has acted
negligently may recover after proving the existence of a duty, a breach thereof, a
resulting injury, and proximate causation between the breach and the resulting
injury. Washburn, 178 Wn.2d at 753.
The question in this appeal is whether Caldwell established that Hoquiam
owed her a duty. Whether a duty exists is a question of law which this court
reviews de novo. Caldwell, 194 Wn. App. at 214.
Unlike private persons, governments are tasked with duties that are not
legal duties within the meaning of tort law, such as governing, passing laws, or
holding elections. Washburn, 178 Wn.2d at 753. For this reason, when the
defendant in a negligence action is a governmental entity, "a plaintiff must show
the duty breached was owed to him or her in particular, and was not the breach
of an obligation owed to the public in general, i.e., a duty owed to all is a duty
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owed to none." Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871,
878, 288 P.3d 328 (2012). This is known as the public duty doctrine.
There are several exceptions to the public duty doctrine. Bailey v. Town
of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257, 753 P.2d 523(1987). Though
they are referred to as exceptions, they are simply shorthand for ways in which a
governmental entity may owe a duty to the plaintiff. Washburn, 178 Wn.2d at
753.
Caldwell argues that Hoquiam owed her a duty under the legislative intent
exception. The legislative intent exception to the public duty doctrine "allows a
plaintiff to claim that a governmental entity owes him or her a legal duty where a
legislative enactment'evidences a clear legislative intent to identify and protect a
particular and circumscribed class of persons." Washburn, 178 Wn.2d at 754,
quoting Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988).
Washington first recognized the legislative intent exception in Halvorson v.
Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978). The plaintiff, the widow of a
man who died in a Seattle hotel fire, was allowed to proceed against the city on
the theory that a declaration of purpose in the city housing code gave rise to a
particular duty owed to residents of the dilapidated hotels. Halvorson, 89 Wn.2d
at 677. While most codes are enacted merely for purposes of public safety or for
the general welfare, the Seattle housing code was "an ordinance enacted for the
benefit of a specifically identified group of persons as well as, and in addition to,
the general public." Halvorson, 89 Wn.2d at 677.
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No. 78159-6-1/6
The Washington Supreme Court revisited the legislative intent exception
in Washburn, 178 Wn.2d at 754. Under RCW 10.14.010 police officers have a
duty to serve antiharassment orders. Washburn, 178 Wn.2d at 755-56. The
plaintiffs in Washburn alleged that an officer's negligent service of an
antiharassment order resulted in a woman's death at the hands of her abusive
boyfriend. Washburn, 178 Wn.2d at 738-40. The court found that the
legislature's declaration of purpose established an intent to protect a particular
class of persons suffering harassment at the hands of others, satisfying the
requirements of the legislative intent exception. Washburn, 178 Wn.2d at 755-
56. The court held that under the legislative intent exception, "if the City's
discharge of this duty to act, service of the order, constituted 'culpable neglect,'
[the City] bears liability in tort." Washburn, 178 Wn.2d at 757, quoting Halvorson,
89 Wn.2d at 678.
Citing Washburn, Caldwell contends that HMC 3.40.080 manifests a clear
legislative intent to protect her. She argues Hoquiam owes a duty to her as an
individual under the ordinance and Hoquiam was required to exercise reasonable
care when carrying out the duties created by the ordinance. But she fails to
identify a duty created by the ordinance that Hoquiam failed to carry out.
Before addressing whether a government entity owed a duty created by
statute or ordinance to the public as a whole or to a particular individual, the
alleged duty must first be identified, i.e., what did the statute or ordinance require
the government entity to do? The legislative intent exception, along with the
other exceptions to the public duty doctrine, are merely focusing tools for
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determining whether an existing duty is owed solely to the public or if it is also
owed to an individual. Washburn, 178 Wn.2d at 753. The exceptions do not
create a duty to act independent of an underlying statutory or common law duty.
For instance, in Halvorson and Washburn, the duties to act were rooted,
respectively, in the failure to enforce the building code and negligence in carrying
out the statutory obligation to serve an antiharassment order. Halvorson, 89
Wn.2d at 677; Washburn, 178 Wn.2d at 756. The existence of a duty must be
established before we can determine whether that duty was owed to a particular
plaintiff.
In the first appeal, this court determined that Hoquiam owed no duty under
state or common law. Caldwell, 194 Wn. App. at 222-23. Therefore, Caldwell
must establish that Hoquiam owed her a duty under the municipal code.
Caldwell, 194 Wn. App. at 223.
Caldwell contends Hoquiam's duty was to ensure that Smith was
complying with the five requirements of HMC 3.40.080(5), such as obtaining
insurance and building a fenced enclosure for Temper. She argues that this duty
arose at some point between when Officer Hill served the declaration on August
11 and when Smith timely appealed several days later.
The ordinance states that a dangerous dog declaration is final upon
service unless timely appealed:
A declaration that a dog is dangerous shall be final unless appealed
by the owner or person in control of the dog within ten days of
service.
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No. 78159-6-1/8
HMC 3.40.080(4). From this sentence, Caldwell reasons that the declaration
was effectively final when served and could be immediately enforced until Smith
filed her appeal. This court rejected this argument in the first appeal.
HMC 3.40.080(4) provides that "[a] declaration that a dog is
dangerous shall be final unless appealed by the owner or person in
control of the dog within ten days of service." Thus, a fair reading
of this provision is that the declaration cannot be final during the 10
days following service. To read this provision otherwise requires
that we conclude that the declaration becomes "final" for the 10 day
period following service and prior to a possible appeal. This we
decline to do.
Caldwell, 194 Wn. App. at 220.
This court's conclusion that the declaration was not final remains the law
of this case. "In its most common form, the law of the case doctrine stands for
the proposition that once there is an appellate holding enunciating a principle of
law, that holding will be followed in subsequent stages of the same litigation."
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844(2005). "It is also the rule
that questions determined on appeal, or which might have been determined had
they been presented, will not again be considered on a subsequent appeal if
there is no substantial change in the evidence at a second determination of the
cause." Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196
(1988), quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965).
The application of the doctrine is discretionary under RAP 2.5(c)(2). We see no
reason to depart from this court's reasoning in the first appeal.
Accordingly, Caldwell's argument about the legislative intent exception is
foreclosed by this court's decision in the first appeal. Absent a final declaration,
Smith was not required to comply with HMC 3.40.080(5), and Hoquiam had no
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No. 78159-6-1/9
duty to enforce the ordinance. Because Hoquiam did not have a duty to enforce
the ordinance under the facts of this case, we do not reach the question whether
the obligations created by the ordinance are owed to Caldwell as an individual
under the legislative intent exception. The trial court properly denied Caldwell's
motion for summary judgment.
Affirmed.
WE CONCUR:
6441 cle _ w
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