Finch v. Thurston County

This opinion was filed for record
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SUSAN L. CA L N
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
BRYENT AND PATRICIA FINCH, a )
marital community, ) No. 91761-2
)
Petitioners, )
)
v. ) EnBanc
)
THURSTON COUNTY; THURSTON )
COUNTY SHERIFF'S OFFICE; ROD )
DITRICH AND JANE DOE DITRICH, )
individually and as husband and wife and the )
marital community comprised thereof, ) Filed OC! 1 3 2il16
)
Respondents. )
_________________ )
GONZALEZ, J.--A police dog bit a police officer during a nighttime
search for a burglary suspect in an abandoned building. Dog owners are
usually strictly liable for dog bite damages. RCW 16.08.040. In other
words, if strict liability applies, the injured person does not have to prove
that the owner was negligent or aware that the dog posed a threat. If strict
liability applies in this case, it appears the only issue for the jury would be
the amount of damages. However, there is a statutory exception to strict
Finch v. Thurston County, et. a!., No. 91761-2
liability for dog bites caused by the "lawful application of a police dog."
RCW 16.08.040(2).
This case asks us to decide whether the police dog was lawfully
applied under the statute, thereby exempting the county from strict liability.
We hold that the specially trained police dog was lawfully applied because
he was performing a job duty under the control of a dog handler when the
injury occurred. Therefore, we find the county is not subject to strict
liability. We affirm.
BACKGROUND
On November 14, 2010, Bryent Finch, a Tumwater police offtcer,
responded to a call to investigate a possible burglary in progress at the old
Olympia Brewery. After surveying the scene, Finch requested a "K-9" unit
to help search the brewery. Deputy Rod Ditrich of the Thurston County
Sheriff's Office responded with his police dog, Rex. 1
The officers decided that Finch would assist Ditrich and Rex search
the brewery. The building was dark inside except for the officers'
flashlights. Finch, Ditrich, and Rex entered the building, and Ditrich loudly
announced their presence. When no one responded, Ditrich commanded
1
The Thurston County Sheriffs Office and the Tumwater Police Department are parties
to an interlocal cooperation agreement to assist each other in law enforcement operations
when requested.
2
Finch v. Thurston County, et. al., No. 91761-2
Rex to search the building. Rex, unleashed, ran ahead of the officers,
tracking the scent of the suspect in and out of rooms.
The officers followed Rex into a dark room where the suspect was
hiding. Ditrich called Rex back to him, saying "here, here, here." Clerk's
Papers (CP) at 287. At this point, both parties largely agree that Finch saw
the suspect, that Finch shouted at him to show his hands, and that Rex bit
Finch as Rex returned to Ditrich. Ditrich had to physically pull Rex off of
Finch before taking the suspect into custody. Finch drove himself to the
hospital, where he underwent surgery for his injuries.
Finch sued Thurston County and others on June 6, 2012 for his
injuries, alleging negligence, outrage, and strict liability under RCW
16.08.040. The next day, Substitute House Bill2191, 62d Leg., Reg. Sess.
(Wash. 20 12) came into effect, exempting "the lawful application of a police
dog" from strict liability under RCW 16.08.040. LAWS OF 2012, ch. 94, §
1(2). On cross motions for partial summary judgment, the trial court
dismissed Finch's statutory strict liability claim. The trial court concluded
that the bite occurred during a "lawful application of a police dog,"
exempting the county from strict liability under RCW 16.08.040(2) because
the police dog was used "to aid an officer in searching an area." Verbatim
3
Finch v. Thurston County, et. al., No. 91761-2
Report of Proceedings at 14-15. Finch voluntarily dismissed his remaining
claims for negligence and outrage.
Finch appealed the dismissal of his strict liability claim, arguing that
Rex's bite was not a lawful application of a police dog. The Court of
Appeals affirmed and held that the legislature had abolished strict liability
claims for injuries resulting from lawfully used police dogs. Finch v.
Thurston County, No. 45792-0-II, slip op. at 1-2, http://www.courts.wa.gov/
opinions/pdf/D2%2045792-0-II%20%20Unpublished %200pinion.pdf. We
granted review. 184 Wn.2d 1001, 357 P.3d 666 (2015).
ANALYSIS
Finch argues that Thurston County is strictly liable for his dog bite
injury because Rex's bite was not a "lawful application of a police dog"
within the meaning ofRCW 16.08.040(2). We disagree. Because Rex was
being used by a law enforcement agency, was specially trained for law
enforcement work, and was under the control of a dog handler when the bite
occurred, Rex was lawfully applied for purposes of the strict liability
exemption.
4
Finch v. Thurston County, et. al., No. 91761-2
In 1941, the legislature enacted a statute, now codified as RCW
16.08.040, making a dog owner strictly liable for injuries caused by her
dog. 2 LAws OF 1941, ch. 77 § 1. The statute states:
The owner of any dog which shall bite any person while such person
is in or on a public place or lawfully in or on a private place including
the property of the owner of such dog, shall be liable for such
damages as may be suffered by the person bitten, regardless of the
former viciousness of such dog or the owner's knowledge of such
viciOusness.
RCW 16.08.040(1). In 2012, the legislature amended the statute, carving
out an exemption from strict liability for police dogs. 3 LAWS OF 2012, ch.
94, § 1 (adding subsection (2)). Under the exemption, strict liability "does
not apply to the lawful application of a police dog, as defined in RCW
4.24.410." RCW 16.08.040(2). RCW 4.24.410 defines a police dog as "a
dog used by a law enforcement agency specially trained for law enforcement
work and under the control of a dog handler." RCW 4.24.410(1)(a).
Unfortunately, neither statute defines the "lawful application of a
police dog." Both parties argue the statute's meaning is plain on its face. If
2
Our State waived its sovereign immunity in 1961 and extended that waiver to local
governments in 1967. LAWS OF 1961, ch. 136, § 1; LAWS OF 1967, ch. 164, § 1.
3
This amendment became effective on June 7, 2012, one day after Finch filed his
complaint against Thurston County. Finch initially argued to both the trial court and the
Court of Appeals that the police dog exception applied prospectively and therefore did
not apply to his case. See CP at 321-27; Finch, slip op. at 4. The Court of Appeals
rejected this argument, and Finch did not seek review of that determination in his petition
of review to this court. For the purposes of this opinion, we assume without deciding that
the amendment applies to this case.
5
Finch v. Thurston County, et. al., No. 91761-2
a "statute's meaning is plain on its face, then the court must give effect to its
plain meaning as an expression of what the Legislature intended." State v.
JM, 144 Wn.2d 472, 480, 28 P.3d 720 (2001) (citing State v. Chapman,
140 Wn.2d 436, 450, 998 P.2d 282 (2000)). The court determines plain
meaning "from the ordinary meaning of the language used in the context of
the entire statute in which the particular provision is found, related statutory
provisions, and the statutory scheme as a whole." Bostain v. Food Express,
Inc., 159 Wn.2d 700,708, 159 P.3d 846 (2007) (citing State v. Jacobs, 154
Wn.2d 596, 600, 115 P.3d 281 (2005)).
To detem1ine the plain meaning of an undefined term, we may also
look to the dictionary. Estate ofHas elwood v. Bremerton Ice Arena, Inc.,
166 Wn.2d 489, 498, 210 P.3d 308 (2009) (citing Garrison v. Wash. State
Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976)). "Application" has a
number of definitions, including "employment as a means: specific use."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 105 (2002). "Lawful"
' ' '
is defined as "allowed or permitted by law." WEBSTER's, supra, at 1279.
We find these definitions illuminating. Together, they define ''lawful
application" of a police dog as the (1) employment or specific use of a police
dog (2) as allowed by law.
6
Finch v. Thurston County, et. a!., No. 91761-2
State regulations have defined the specific uses that police dogs may
be trained to carry out. Police dogs may be trained to assist in general patrol
and investigations, tracking and trailing persons, building and vehicle
searches, and drug and bomb detection. See WAC 139-05-915(4). Police
dogs may also be trained "solely for self-protection and assistance in hostile
or potentially hostile situations." WAC 139-05-915(4)( d). Thus, when a
police dog is on duty and used for a purpose consistent with its training and
certification, the police dog has been lawfully applied within the meaning of
RCW 16.08.040(2) and strict liability will not apply .
. Finch argues that there is an "application" of a police dog under RCW
15.08.040(2) only when the handler orders the dog to bite someone. Pet. for
Review at 15. This reading, however, does not take into account the myriad
of situations police dogs are trained for, including training to bite in certain
circumstances without a direct order. For example, police dogs are trained
in "master protection"-to protect their handlers in the event that the handler
is attacked or injured-and will bite the assailant without a command to do
so. See WAC 139-05-915(4)(a)(xii), (d); see also CP at 148. But under
Finch's interpretation, municipalities would be strictly liable for any dog bite
made without a command. Neither the plain language nor the legislative
7
Finch v. Thurston County, et. al., No. 91761-2
history of the exemption supports this narrow interpretation. We decline to
adoptit. 4
In this case, the trained police dog, Rex, was on duty and was
dispatched to the scene to be used for a specific purpose: to perform a
building search for a suspect. At this point, Rex had been lawfully applied
for this particular situation. Although Rex bit someone who was not a
"suspect" while he was lawfully applied, the county is not strictly liable for
those injuries. As the Court of Appeals correctly stated below, "[t]he fact
that Finch was mistakenly bitten by Rex does not convert a lawful use of
Rex to an tmlawful use." Finch, slip op. at 6. State action does not become
unlawful merely because it was predicated on a mistake. See generally
ROGERJ. TRAYNOR, THE RIDDLE OF HARMLESS ERROR3, 9 (1970).
Accordingly, we hold that the use of Rex was a lawful application of a
police dog and that tmder RCW 16.08.040(2), Thurston County is exempt
from strict liability for the injuries to Finch. 5 Our decision is bolstered by a
4
The dissent seems to believe a properly trained canine officer faced with an armed
attacker threatening its handler will not intervene tmtil the attacker uses the weapon. But
"[ d]etached reflection cannot be demanded in the presence of an uplifted knife,"
regardless of species. Brown v. United States, 256 U.S. 335,343,41 S. Ct. 501,65 L.
Ed. 961 (1921). Thankfully, the canine officer, like any other, might well act to protect
the officer before she is stabbed or shot.
5
The approach advocated by the dissent would require us to ask a jury whether a
defendant is subject to strict liability by deciding some predicate factual question. But
whether strict liability applies to a category of activity is a question oflaw for the
8
Finch v. Thurston Coun(y, et. al., No. 91761-2
recent decision of a federal court concluding the exception applied when the
police dog and police handler "me[]t the requirements to be classified as a
'police dog' and 'dog handler,' respectively." Germain v. City of Seattle,
2016 WL 3017704, at *5 (W.D. Wash. May 25, 2016).
Finch suggests that exempting municipalities from strict liability in
instances such as this one would eliminate a remedy for "innocent" dog bite
victims. Pet. for Review at 13-14, 20. We find this argument unpersuasive.
WhiJe RCW 16.08.040(2) carves out an exemption from a strict liability
statute, the exemption does not mean the police department or municipality
is immune from suit in every instance a police dog bites someone. 6 The
unavailability of a strict liability claim does not preclude plaintiffs from
pursuing other causes of actions against municipalities, such as negligence,
civil rights violations, or assault, along with or in lieu of a strict liability
legislature or the. court to decide, not a jury. 16 DAVID DEWOLF & KELLER ALLEN,
WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 3.3, at 130 (4th ed. 2013) (citing
Langan v. Valicopters, Inc., 88 Wn.2d 884,567 P.3d 218 (1977)). We can find no case
that left it to a jury to decide whether strict liability should apply categorically. The
legislature is presumed to know the preexisting law, and if it had intended to depart from
this general rule, it would have said so. See Wynn v. Earin, 163 Wn.2d 361,371, 181
P.3d 806 (2008) (citing Price v. Kitsap Transit, 125 Wn.2d 456,463, 886 P.2d 556(1994)).
6
The legislature has granted ill11l1unity to police dog handlers, but did not extend that
immunity to local police departments or municipalities who own the police dogs. "Any
dog handler who uses a police dog in the line of duty in good faith is immune from civil
action for damages arising out of such use of the police dog or accelerant detection dog."
RCW 4.24.41 0(2). This immunity for dog handlers, however, would not apply to
situations where police officer used a police dog in bad faith.
9
Finch v. Thurston County, et. a!., No. 91761-2
claim. 7 Arnold v. Laird, 94 Wn.2d 867, 870-71, 621 P.2d 138 (1980) (citing
Ulmer v. Ford Motor Co., 75 Wn.2d 522, 531, 452 P.2d 729 (1969)). "[A]
negligence cause of action arises where there is ineffective control of an
animal in a situation where it would reasonably be expected that injury could
occur, and injury does proximately result from the negligence." Id. at 871.
Additionally, there could be situations where municipalities were negligent
in adequately training or certifying a police dog for use in the field. Thus, a
remedy may be available for plaintiffs for their injuries even if strict liability
is not available. 8
CONCLUSION
We hold that Thurston County is not subject to strict liability, as the
deployment of Rex was a "lawful application of a police dog" under RCW
16.08.040(2). The police dog, Rex, was on duty performing his job duties
under the control of a dog handler and was therefore lawfully applied when
the injury to Finch occurred. Accordingly, we affirm.
7
Because Finch voluntarily dismissed his claim of negligence against the county, his
recovery may be limited to his workers' compensation coverage.
8
We are not faced today with a case where the "application" of a police dog violated the
Fourth Amendment to the United States Constitution. We leave for another day whether
such an.· encounter could possibly be a "lawful application" of a police dog under RCW
16.08.040(2).
10
Finch v. Thurston County, et. al., No. 91761-2
WE CONCUR:
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7 (/
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II
Finch v. Thurston County, et al.
No. 91761-2
MADSEN, C.J. (dissenting)-The majority holds that because the police dog here
was on duty, the strict liability imposed for dog bites under RCW 16.08.040(1) does not
apply. This holding ignores the plain language of the exemption found in RCW
16.08.040(2) (discussed infra). The majority also sees no need to involve a fact finder in
making determinations under the strict liability dog bite statute and its statutory
exception, observing that the "category of activity" to which strict liability is to be
applied "is a question of law for the legislature or the court to decide." Majority at 8 n.S.
Here, the legislature has so determined in RCW 16.08.040 by imposing strict liability on
dog owners when their dogs bite others, and by further providing a narrow exception to
such liability. The question here is whether the exception applies, and that determination
necessarily turns on the facts of the case. As explained herein, some facts essential to
that determination are in dispute. Resolving such disputes is the proper role of a fact
finder, see State v. Holbrook, 66 Wn.2d 278, 279, 401 P.2d 971 (1965) (the function and
province of the jury is to weigh the evidence, determine credibility, and decide disputed
questions of fact), and as discussed herein, the presence of such disputed facts renders the
trial court's grant of summary judgment improper. Accordingly, I dissent.
No. 91761-2
(Madsen, C.J., dissenting)
Discussion
This case was dismissed on summary judgment. But, when the facts as alleged by
Tumwater Police Officer Bryent Finch are taken as true, as they must be, it is clear that
the police dog that attacked and bit Officer Finch was out of his handler's control, that
the dog failed to obey his handler's recall command, and that the dog was not being
lawfully applied by law enforcement when it attacked Officer Finch. As discussed
below, the dog bite statute, RCW 16.08.040, imposes strict liability on the owner of any
dog, including a police department, when a dog bites any person. The sole exception,
which must be construed narrowly, as all exceptions are unless otherwise provided,
applies to a police dog only when the animal is "lawfully applied." The dispute here is
whether the dog that attacked and bit Officer Finch was being "lawfully applied" when it
bit Officer Finch.
Facts
On November 14, 2010, at 7 p.m., Officer Finch responded to a call regarding a
possible burglary in progress at the shuttered Olympia Brewery in Tumwater,
Washington. 1 When Officer Finch arrived on the scene, he contacted a security guard at
the brewery. The security guard told Officer Finch that a window had been broken in the
large brewery building and it was unclear if anyone was still inside. Officer Finch then
requested that a police dog (a police "K-9" unit) be brought to the scene. Clerk's Papers
(CP) at 281.
1
Another Tumwater police officer, identified only as "Officer Hollinger," also responded to the
scene. CP at 118, 281.
2
No. 91761-2
(Madsen, C.J., dissenting)
Deputy Rod Ditrich of the Thurston County Sheriffs Office responded to the call
with his police dog, Rex. 2 The officers decided that Officer Finch, Deputy Ditrich, and
Rex would search the building's interior while the security guard and Officer Hollinger
remained outside. When Officer Finch and Deputy Ditrich entered the building, Deputy
Ditrich loudly announced three times, '"This is the Sherriffs Office, this building is
going to be searched by a Police K9, announce your presence, give up or you will be
bit!"' CP at 287. The officers received no response and began their search of the
building.
It was dark outside when the search began, and there was no electricity or lighting
in the building. The building was dark inside except for the officers' flashlights. The
officers had to maneuver around hazards including large holes in the floor where beer
vats had been removed. Officer Finch used his flashlight intermittently to avoid
"backlighting" Deputy Ditrich and giving away his position to a potential suspect. CP at
120. During the search, the police dog was not on a leash and was running in and out of
rooms and between the two officers.
When Rex detected the suspect's scent, he ran to a room at the front entryway of
the building. Rex entered the room first, followed by Deputy Ditrich, and then Officer
Finch. Upon entering the room, Deputy Ditrich moved to the right and Officer Finch
2
The Thurston County Sheriffs Office provides assistance in law enforcement operations
reciprocally to the Tumwater Police Department and other city police departments in the
0 lympia area pursuant to an interlocal cooperation agreement. See CP at 162-69.
3
No. 91761-2
(Madsen, C.J., dissenting)
moved to his left, away from Deputy Ditrich. Due to the darkness, Officer Finch could
not see the police dog.
Shortly after entering the room, Officer Finch heard Deputy Ditrich say "'here,
here, here."' CP at 122. Officer Finch interpreted these words as indicating that Deputy
Ditrich had located the suspect and was signaling the suspect's location to Officer Finch.
But Deputy Ditrich was actually commanding Rex to return to him. Upon hearing
Deputy Ditrich's command, Officer Finch noticed the suspect trying to hide in the far
northeast corner of the room. Officer Finch loudly commanded the suspect, '"Hands,
show me your hands!"' CP at 282. This occurred as Rex was complying with Deputy
Ditrich's return command, but the dog suddenly attacked Officer Finch, biting him in the
groin and piercing his right testicle.
Officer Finch fell to the ground screaming as the dog continued to bite him. I-Ie
repeatedly yelled for Deputy Ditrich to remove the dog. Deputy Ditrich ordered the
suspect not to move, and he then had to physically pull the dog off of Officer Finch.·
Officer Finch described the difficulty that Deputy Ditrich was having regaining control of
the dog, stating, "It seemed like it took Deputy Ditrich at least one minute to get 'Rex' to
release his bite on me." CP at 282. After Deputy Ditrich regained control of Rex and led
the dog away from Officer Finch, he then took the suspect into custody.
Officer Finch was bleeding from his scrotum and knew his injuries were "bad,"
but did not know the full extent of the damage to his testicles. CP at 283. He determined
that he could get to the hospital emergency room faster by driving himself in his patrol
4
No. 91761-2
(Madsen, C.J ., dissenting)
car rather than by waiting for an ambulance. When he arrived at the Providence St. Peter
Hospital emergency room in Olympia, a urologist examined his injuries and determined
that he should be treated at Harborview Medical Center in Seattle. An ambulance
transported Officer Finch to Harborview, and the urologist there determined that
immediate scrotal surgery was necessary. CP at 283. The surgery revealed that the dog
bite had ruptured Officer Finch's right testicle, requiring removal of one quarter of that
damaged organ. Following the surgery, the urologist informed Officer Finch that while
the remaining partial testicle could still produce testosterone, it would no longer produce
sperm, and that during convalescence if the blood supply to the partial testicle proved
insufficient or the organ was otherwise not viable, it would have to be removed.
Officer Finch filed a complaint on Jtme 6, 2012 for personal injuries, asserting claims
against Thurston County (County) and others 3 for negligence, outrage, and strict liability
under RCW 16.08.040. On cross motions for partial summary judgment, the trial court
dismissed Officer Finch's statutory strict liability claim. The trial court ruled that RCW
16.08.040(2), which provides that strict liability under the statute does not arise where an
injury results from the "lawful application of a police dog," precluded the claim.
Verbatim Report of Proceedings at 14-15. Officer Finch then voluntarily dismissed his
remaining claims for negligence and outrage and appealed the dismissal of his strict
liability claim. Division Two of the Court of Appeals affirmed in an unpublished
opinion. Finch v. Thurston County, noted at 186 Wn. App. 1035, review granted, 184
3
Original defendants included Thurston County, Thurston County Sheriffs Office, Rod Ditrich,
and Jane Doe Ditrich. CP at 336-37.
5
No. 91761-2
(Madsen, C.J., dissenting)
Wn.2d 1001, 357 P.3d 666 (2015). Officer Finch sought and was granted review in this
court on the single issue of "whether the dog bite injury to Officer Finch resulted from
the 'lawful application of a police dog' within the meaning ofRCW 16.08.040(2)." Pet.
for Review at 11.
Standard of Review
When reviewing a motion for summary judgment, this court engages in the same
inquiry as the trial court: the motion can be granted only if the pleadings, affidavits,
depositions, and admissions on file demonstrate there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter oflaw. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008); CR 56(c). This court
must consider all the facts and reasonable inferences in the light most favorable to the
nonmoving party; the motion should be granted only if reasonable persons could reach
but one conclusion. Ranger Ins., 164 Wn.2d at 552.
Further, when construing a statute, as the court must do here, the court's goal is to
carry out the intent of the legislature. Seven Gables Corp. v. MGM!UA Ent'mt Co., 106
Wn.2d 1, 6, 721 P.2d 1 (1986). The court's interpretation must make the statute
purposeful and effective. !d. Undefined words in a statute must be given their plain and
ordinary meaning unless a contrary intent appears. Dennis v. Dep 't ofLabor & Indus.,
109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987). Definitions that are provided by the
6
No. 91761-2
(Madsen, C.J., dissenting)
legislature "become integral to the statutory scheme." Seven Gables Corp., 106 Wn.2d at
RCW 16.08.040
The primary issue before this court is whether the dog bite to Officer Finch falls
within the "lawful application of a police dog" exemption that the legislature added to the
strict liability dog bite statute in 2012. The issue is resolved by applying the plain
language of the strict liability dog bite statute, RCW 16.08.040. That statute provides in
full:
( 1) The owner of any dog which shall bite any person while such person is
in or on a public place or lawfully in or on a private place including the
property of the owner of such dog, shall be liable for such damages as may
be suffered by the person bitten, regardless ofthe former viciousness of
such dog or the owner's knowledge of such viciousness.
(2) This section does not apply to the lawful application of a police
dog, as defined in RCW 4.24.410.
See LAWS OF 2012, ch. 94, § 1 (effective June 7, 2012) (adding subsection (2)). RCW
4.24.410, which also provides immunity to a dog handler who uses a police dog in the
4
We recently explained the appropriate analysis in BAC Home Loans Servicing, LP v. Fulbright
as follows:
"[W]e strive to ascertain the intention of the legislature by first examining a
statute's plain meaning." G-P Gypsum Corp. v. Dep 't of Revenue, 169 Wn.2d
304, 309, 237 P.3d 256 (2010) (citing Dep't of Ecology v. Campbell & Gwinn,
LLC, 146 Wn.2d 1, 9-10,43 P.3d 4 (2002)). To glean the meaning of words in a
statute, we do not look at those words alone, but '"all [o:fJ the terms and
provisions of the act in relation to the subject of the legislation, the nature of the
act, [and] the general object to be accomplished and consequences that would
result from construing the particular statute in one way or another."' Burns v.
City ofSeattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007) (quoting State v. Krall,
125 Wn.2d 146,148,881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92
Wn.2d 128, 133, 594 P.2d 917 (1979))).
180 Wn.2d 754,766,328 P.3d 895 (2014) (emphasis added) (alterations in original).
7
No. 91761-2
(Madsen, C.J., dissenting)
line of duty in good faith, provides in relevant part here, '"Police dog' means a dog used
by a Ia"\ enforcement agency specially trained for law enforcement work and under the
control of a dog handler." RCW 4.24.410(1)(a) (emphasis added). Further, Washington
law requires a dog handler to keep his or her police dog under control at all times. See
WAC 139-05-915(5) ("It is the handler's responsibility to keep their canines under
control at all times.")
Relevant here, by its plain terms, subsection one imposes liability on the "owner"
of "any dog" that bites "any person" who is lawfully in a private place. RCW
5
16.08.040(1). Reading the subsection (2) exemption together with the definition section,
the exemption from liability is triggered when (1) a police dog is applied by its handler,
(2) such application is lawful, and (3) the handler is in control of the dog. See RCW
16.08.040(2); RCW 4.24.410(1)(a). Taken in the light most favorable to Officer Finch,
when the bite occurred, the dog was not being "applied" by its handler and the handler
was not in control of the dog, thus, the exemption does not apply.
First, there was no command to the dog at all regarding Officer Finch, thus, there
was no application of the dog by the handler. The County asserts, and the majority
agrees, that the "lawful application" was "the application of [police dog] Rex for the
' Because this strict liability statute by its terms applies broadly to all owners of any dog that
bites any person, we should construe the exemption narrowly. Cf Cerrillo v. Esparza, 158
Wn.2d 194,202, 142 P.3d !55 (2006) (noting "'[e]xemptions from remedial legislation'" are
"'narrowly construed'" (quoting Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 301,
996 P.2d 582 (2000))); W Ports Transp., Inc. v. Emp 't Sec. Dep 't, II 0 Wn. App. 440, 460, 41
P.3d 510 (2002) (where Washington's definition of covered employment is exceedingly broad,
its "exemptions must be read narrowly").
8
No. 91761-2
(Madsen, C.J., dissenting)
building search." Answer to Pet. for Review (Answer) at 10; see also majority at 4, 8.
But that is not the application at issue concerning the bite to Officer Finch. The County
admits that "[i]t is undisputed that Officer Finch was bitten after K-9 Rex was recalled by
Deputy Ditrich." Answer at 17 (emphasis added). The application of the dog-to search
the building for a burglary suspect-was over. The dog bit Officer Finch after being
recalled and while acting on its own without a command from the handler. Thus, as to
the dog bite at issue, there was no "application" of the dog within the meaning ofRCW
16.08.040(2).
Second, the dog was not in the "control of [the] handler." RCW 4.24.410(l)(a);
see Suppl. Br. ofResp't at 12 ("There is no dispute that Deputy Ditrich, having recalled
Rex, did not intend for Rex to seize or bite anyone at the time of [Officer] Finch's
injury."). After being recalled from searching the building and locating the burglary
suspect, the dog attacked Officer Finch, without a directive from its handler. As noted, it
is undisputed that no one intended for the dog to attack Officer Finch. Thus, the dog
acted on its own in attacking Officer Finch. Moreover, it took Deputy Ditrich "at least
one minute" to get Rex to release his bite on Officer Finch and the handler ultimately had
to physically pull the dog off of Officer Finch and remove him from Officer Finch's
location. CP at 282. Accordingly, it simply cannot be said that the dog was under the
control of its handler when it bit Officer Finch. Although the dog and handler were in the
same location, and although it was the handler's responsibility to remain in control of the
dog at all times, see WAC 139-05-915(5), such control was clearly not maintained here,
9
No. 91761-2
(Madsen, C.J., dissenting)
otherwise Officer Finch would not have been attacked. Accordingly, a jury could so find
and thereby determine that the exemption contained in RCW 16.08.040(2) does not
apply. 6
The majority holds that Rex "was lawfully applied" for purposes ofRCW
16.08.040(2)'s strict liability exemption because Rex (1) "was specially trained for law
enforcement work," (2) "was being used by a law enforcement agency," and (3) "was
under the control of a dog handler when the bite occurred." Majority at 4.7 But these are
questions for the jury. In my view, neither the majority's premise-that the handler was
in control of Rex when it bit Officer Finch-nor its conclusion based on that premise is
valid.
Further, the majority's view leads to absurd results. Under the majority's view, a
police dog deployed by its handler with a command to track and apprehend (fmd, bite and
hold) a fleeing felon, which then tracked through a public park mauling small children
along the way, would fall within the exception. I disagree. By its terms, the exemption
applies only to a "lawful application." In the given example, the lawful application is the
cmmnand to track, bite, and hold the fleeing felony suspect. There is no "application"
where the dog strays and engages in aggressive conduct not ordered by the handler.
6 Where there is no application, the inquiry regarding the lawfulness of such application does not
anse.
7
The majority cites Germain v. City ofSeattle, 2016 WL 3017704 (W.D. Wash. May 25, 2016),
as bolstering its view, but that case is distinguishable. See majority at 8. There, the police dog
handler employed his police dog to apprehend a suspect who was attempting to flee. The federal
district court held that the RCW 16.08.040(2) exemption applied and dismissed the defendant
arrestee's RCW 16.08.040 strict liability claim against the city of Seattle. That is not the
circumstance here.
10
No. 91761-2
(Madsen, C.J., dissenting)
Further, while the dog is attacking the children, the handler is not in control of the dog
and, thus, there is no lawful application as to the action in question-the attack on the
children. Similarly here, the attack on Officer Finch was beyond the scope of the
handler's directive and the handler was not in control of Rex when Rex attacked Officer
Finch. Under such circumstances, a jury could conclude that the exemption does not
apply.
The majority reasons that as long as a police dog is employed in a specific use for
which the dog was trained, it is necessarily '"lawful[ly] appli[ed],"' thereby triggering the
exemption. Majority at 6. As explained above, I disagree that such initial deployment of
a police dog necessarily immunizes any and all of the dog's conduct thereafter. The
majority notes the specific uses that police dogs may be trained to carry out to include
patrol and investigation, tracking, searches, and specific substance detection. See id.(citing to WAC 139-05-915(4)). Notably lacking from that list is the undirected attack of
a police officer. Further, the regulation on which the majority relies expressly requires
that a dog handler keep his dog under control at all times. See WAC 139-05-915(5).
The majority also notes that police dogs are trained to protect their handlers; thus,
"in the event that the handler is attacked or injured[, the dog] will bite the assailant
without a command to do so." Majority at 7 (citing WAC 139-05-915(4)(a)(xii), (d)).
But there is no evidence that the handler was "attacked or injured." Thus, it cannot be
said that the dog here acted consistent with its training. And in any event, this is for the
jury to decide.
11
No. 91761-2
(Madsen, C.J., dissenting)
The majority asserts that the "parties largely agree" about the circumstances
surrounding Officer Finch's injury. Majority at 3. In fact, the parties disagree about
particulars surrounding the dog bite, particularly where Officer Finch was and what he
was doing when the dog bit him. The County asserted at oral argument that a police dog
is trained to bite without a command when the dog perceives a threat to the handler. 8
That assertion overstates the record. Notably, the County argued in its briefing that
police dogs are trained to respond when the handler is assaulted. See Answer at 12
("[W]here an officer is assaulted, police dogs are trained to attack and bite the
assailant."); Suppl. Br. ofResp'ts at 9 ("[W]hen a canine handler is assaulted, police dogs
are trained to protect the handler by attacking and biting the assailant.") The evidence the
County points to regarding a police dog's training to protect its handler concerns
certification tests for the handler and dog. In such tests, a decoy "assault[ s]" the handler
(after approaching and conversing with the handler for a while) in order to test the dog's
protective response. CP at 148. There is no test noted for any perceived threat to the
handler other than a physical assault. See id.In the present case, there is no such physical assault on the police dog's handler,
Deputy Ditrich. In my view, in the absence of such assault, the threshold requirement for
a "perceived threat" to the handler (based on the County's evidence concerning police
'The County asserted at oral argument that police dogs are trained to bite in three circumstances:
(I) pursuant to a bite and hold command when searching for or pursuing a :fleeing suspect, (2)
when a suspect attacks the police dog, and (3) when the police dog "perceives" a threat to the
handler. See Wash. Supreme Court oral argument, Finch v. Thurston County, No. 91761-2
(Jan. 19, 2016), at 25 min., 15 sec. to 25 min., 50 sec., audio recording by TVW, Washington
State's Public Affairs Network, http://www.tvw.org.
12
No. 91761-2
(Madsen, C.J., dissenting)
dog training) is not met. On that basis, the police dog here was not acting in accordance
with its training. Accordingly, a jury could fmd that there was no application of the dog
(per its training) sufficient to trigger the RCW 16.08.040(2)'s statutory exemption.
Even if this court accepts the County's assertion at oral argument that the dog is
trained to respond to a perceived threat to the handler (i.e., something short of an actual
physical assault of the handler), summary judgment for the County would still be
improper because the parties' different versions of Officer Finch's conduct at the time of
the bite raises a material fact dispute about whether there was a threat to the handler.
Deputy Ditrich's "K-9 Usage Report" states that when Deputy Ditrich recalled the police
dog with the command '"here, here, here,"' "Officer Finch quickly came up to me and as
he reached my location (just as K9 Rex was returning to me), he saw the suspect ... and
began shouting 'Show me your hands, Show me your hands!'" CP at 287. "K9 Rex took
someone approaching me from behind rapidly and shouting, as a threat to me and
immediately made contact with [i.e., bit] Officer Finch." !d. (emphasis added).
Officer Finch describes events differently, contending that at the relevant time he
spoke in a "commanding voice but [he] wasn't yelling or ... screaming." CP at 124.
More importantly, Officer Finch contends that as he ordered the suspect, he was
"stationary" and not moving, standing some "eight to ten feet" to the left of Deputy
Ditrich and parallel to Deputy Ditrich as Officer Finch commanded the suspect. CP at
123. "At no time prior to being bit did I approach Deputy Ditrich giving 'Rex' a reason
to think he needed to protect his handler." CP at 282. "At no time, did I get between
13
No. 91761-2
(Madsen, C.J., dissenting)
'Rex' and Deputy Ditrich, nor did I position myself between 'Rex' and the suspect.
When I got attacked, I was standing still with my duty weapon [at the]low ready. Id."[P]rior to getting attacked by 'Rex,' Deputy Ditrich, the suspect and I were [standing] in
a triangle shape." Id.The only evidence cited by the County concerning a police dog's training
addressing protection of its handler indicates that the dog is trained to respond to a
physical assault of the handler. Here, there is no physical assault on the handler. Even if
this court accepts the County's position at oral argument that the police dog in this
instance was responding to a perceived threat to its handler (short of a physical assault),
summary judgment was not appropriate because the parties offer vastly different versions
of Officer Finch's conduct leading up to the bite incident. Either way, the trial court's
grant of summary judgment to the County was error. 9
Further, in granting the County's summary judgment motion and denying Officer
Finch's summary judgment motion, the trial court explained the basis of its ruling
concerning the exemption question as follows:
With regard to the argument on the lawful application of a police dog, the
Court does find that where a police dog is being used in a situation such as
9
The majority chides the dissent for "believ[ing] a properly trained canine officer faced with an
armed attacker threatening its handler will not intervene until the attacker uses the weapon," and
applauds any police dog that in such circumstance would "act to protect [its handler] before [the
handler] is stabbed or shot." Majority at 7 n.4. The majority misconstrues the dissent's
discussion, which focuses on the evidence available in the record concerning police dog training
addressing handler protection. More to the point, whether the police dog here was "faced with
an armed attacker threatening its handler" is a disputed material fact question, as discussed
above.
14
No. 91761-2
(Madsen, C.J., dissenting)
this where the police dog is being used to aid an officer in searching an
area, that's one thing, as opposed to having a police dog who normally goes
home at night with their handler, getting out of the back yard and biting the
neighbor. That in no way was the dog working at that point.
RP at 14-15. It is apparent that the trial court believed that so long as the dog is
"working," that is, any time the dog is on duty and "aid[ing]" an officer, the exemption
10
applies. /d. But such a broad application of the exemption ignores the prerequisites for
triggering the exemption and the parameters of that exemption, as discussed above.
The majority also notes that the RCW 16.08.040(2) exemption negates strict
liability imposed by RCW 16.08.040(1) but otherwise does not confer immunity on the
county as owner of the police dog, thereby leaving other remedies available to plaintiffs.
But the fact that other remedies may be available to a person attacked by a police dog is
irrelevant to the present inquiry, which concerns the particular triggers and parameters of
the statutory exemption from strict liability for dog bites under RCW 16.08.040.
Legislative Intent
Although this case turns on the plain language ofRCW 16.08.040(2), as discussed
above, the record includes comments at a senate hearing by the bill's legislative sponsor
10
The majority agrees with the trial court that the exemption applies whenever an on duty police
dog has been deployed. The majority concludes that the police dog here was "lawfully applied"
because it "was on duty performing [its] job duties under the control of a dog handler." Majority
at I 0. But, as discussed, while the dog was indeed on duty, the undirected biting of another
officer is not one of the dog's job duties, and whether the dog was under the handler's control at
the time of the bite is disputed. Notably, the majority acknowledges that a police dog being
"under the control of a dog handler" is one of the prerequisites for application of the exemption.
Majority at 5. But the majority merely assumes that this requirement is met, repeating
throughout the opinion that the dog was "under the control of a dog handler," while ignoring that
this is a disputed factual issue. See majority at 2, 4, 10. As discussed herein, a jury could find
otherwise.
15
No. 91761-2
(Madsen, C.J ., dissenting)
regarding the amendment's purpose. The sponsor indicated that the purpose of the
amendment is to avoid frivolous lawsuits by arrestees. At the Febmary 21, 2012 hearing
before the Senate Judiciary Connnittee, the bill's sponsor, Representative Ann Rivers,
identified the concern that this portion of the proposed legislation addressed as "the
cottage industry that's popping up where criminals can sit in jail ... and write frivolous
lawsuits against municipalities ... because dogs, police dogs, are ... doing the job that
we ask [it] to do." CP at 197. It is clear that the dog here was not "doing the job that we
ask them to do" when it bit Officer Finch. It is also clear that the legislature intended the
exemption to apply only when the dog is being applied by a handler and is under the
control of the handler.
Moreover, the amendment was part of a larger bill that imposed civil penalties on
persons who kill or injure police dogs. See LAWS OF 2012, ch. 94, §§ 1-2 (Substitute
H.B. 2191, 62d Leg., Reg. Sess. (Wash. 2012)). The bill was prompted by two incidents
in the sponsor's legislative district in which police dogs were stabbed to death by persons
attempting to "evade arrest." CP at 175, 180 (comments by Representative Ann Rivers at
the January 18,2012 hearing before the House Public Safety and Preparedness
Committee). The "heart of the bill" was shifting a portion of the suhstantial expense of
acquiring and training a police dog (some $40,000) to the perpetrator responsible for the
law enforcement agency's loss of the dog. CP at 176, 202-03. Clearly, the legislation
addresses issues arising from the contact of police dogs with arrestees. Considering this
16
No. 91761-2
(Madsen, C.J ., dissenting)
history, it is obvious that Officer Finch's case does not concern the type of claim that the
amendment was intended to preclude.
Finally, requiring a more exacting construction of "lawful application" than the
majority or the courts below employed comports with the policy considerations
underlying this case. I acknowledge that police dogs provide "proven benefits for
effective law enforcement." Robinette v. Barnes, 854 F.2d 909, 914 (6th Cir. 1988); see
also id. at 914 n.6 (noting police dogs are "well-known" for their ability to track and
apprehend criminals, detect drugs, and locate missing persons and lost articles). Courts
have aclmowledged that police dogs function as the handling officer's tool and
"'weapon."' Andrade v. City ofBurlingame, 847 F. Supp. 760,764 (N.D. Cal. 1994)
(police dog is "one 'weapon' in [the handler's] arsenal"); Weekly v. City ofMesa, 181
Ariz. App. 159, 165, 888 P.2d 1346 (1994) ("no difference between a police officer
directing a dog to attack a person" and the officer "directing a blow at a person with a
baton"); see also CP at 183-85 (testimony before house committee describing police dogs
as important tools used by officers and "an extension of the officer").
But police dogs can also be "threatening" and "dangerous." Robinette, 854 F.2d at
913 (aclmowledging that police dog can be a dangerous law enforcement tool: "The
dogs' ability to aid law enforcement would be minimal if they did not possess this
trait"). 11 And the use of police dogs has on occasion caused serious injury and even
11
Cf. State v. Hoeldt, 139 Wn. App. 225, 230, 160 P.3d 55 (2007) ("Because a dog is an
instmment that can be used to cause death or substantial bodily hann, we hold that a dog can be a
"deadly weapon" under RCW 9A.04.11 0(6).").
17
No. 91761-2
(Madsen, C.J., dissenting)
death. See, e.g., Watkins v. City of Oakland, 145 F.3d 1087, 1090-91 (9th Cir. 1998)
(victim of police dog attack sustained severe lacerations, fractures, and tendon damage
necessitating two skin graft surgeries); Robinette, 854 F.2d at 911 (victim of police dog
attack killed when bitten on the neck). The fact that police dogs (i.e., thinking weapons)
can, on occasion, make mistakes is an unfortunate reality. See Robinette, 854 F.2d at 912(police dog acted "consistent with its training" and yet accidentally killed suspect); see
also Andrade, 847 F. Supp. at 762 (police dog attacked two children during traffic stop,
biting the girls' heads and causing injuries and psychological trauma). Law enforcement
agencies' decision to utilize such tools must be balanced against the risk to the public of
unintended attacks. The legislature has balanced such risks by requiring exacting and
limiting conditions to trigger the exemption at issue here. In my view, the courts below
and the majority's approach too broadly apply RCW 16.08.040(2)'s exemption any time
a trained police dog is on duty. That is not what the plain language of the statute
requires.
Conclusion
RCW 16.08.040(2) provides an exemption from RCW 16.08.040(1)'s strict
liability for dog bite injuries where the bite results from a "lawful application of a police
dog." Here, taking the facts in the light most favorable to Officer Finch, the police dog
bite to Officer Finch occurred when the dog was not under the handler's control and
when the dog strayed from the handler's directives. In my view, under such facts, the
bite does not fall within the "lawful application of a police dog" necessary to trigger the
18
No. 91761-2
(Madsen, C.J., dissenting)
exemption. The disputed facts concerning the circumstances surrounding the dog bite
raise a fact question on this issue foreclosing summary judgment. The trial court and
Court of Appeals erred in determining otherwise. The court should reverse the trial
court's summary judgment dismissal of Officer Finch's strict liability claim and remand
for further proceedings.
For these reasons, I dissent.
19
No. 91761-2
(Madsen, C.J., dissenting)
20