(dissenting).
I respectfully dissent and would affirm the district court. I do not find this case ripe for summary judgment. I suggest there are contested substantial fact issues. I would remand for further proceedings and leave both parties to the option of moving for summary judgment at a later date, if appropriate.
Perhaps, as to a criminal defendant, which respondent is not, the strict liability of the “dog bite” statute might not apply to police dogs as a matter of law. But I just find it difficult to believe that police dogs can willy-nilly attack and bite innocent bystanders, like respondent, at the scene of a crime and then everyone responsible for controlling the dogs gets absolved on the grounds of immunity. I suggest more discovery and perhaps even a trial on the facts are needed before it can be determined under what circumstances Chips bit respondent. Then you have the issue of why Police Officer Yates did not immediately call Chips off of respondent, but rather delayed calling Chips off and instead followed Hyatt. I suggest that the longer a trained attack dog has his teeth in a person’s arm, the more severe the damage can be. If Yates’s actions are found to be a malicious act, do you still have immunity, if you have immunity? Podruch v. State, Dept. of Pub. Safety, 674 N.W.2d 252, 254 (Minn.App.2004) (stating that the doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong).
I conclude summary judgment for the city is inappropriate at this stage.