Finch v. Thurston County

González, J.

¶1 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 liability for dog bites caused by the “lawful application of a police dog.” RCW 16.08.040(2).

¶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

¶3 On November 14, 2010, Bryent Finch, a Tumwater police officer, 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

¶4 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 Rex to search the building. Rex, unleashed, ran ahead of the officers, tracking the scent of the suspect in and out of rooms.

¶5 The officers followed Rex into a dark room where the suspect was hiding. Ditrich called Rex back to him, saying, “[H]ere, 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.

¶6 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 Bill 2191, 62d Leg., Reg. Sess. (Wash. 2012) 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 Report of Proceedings at 14-15. Finch voluntarily dismissed his remaining claims for negligence and outrage.

¶7 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 (Wash. Ct. App. Mar. 24, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2045792-0-II%20%20Unpublished%20Opinion.pdf. We granted review. 184 Wn.2d 1001, 357 P.3d 666 (2015).

Analysis

¶8 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 of RCW 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.

¶9 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).

¶10 Unfortunately, neither statute defines the “lawful application of a police dog.” Both parties argue the statute’s meaning is plain on its face. If a “statute’s meaning is plain on its face, then courts must give effect to its plain meaning as an expression of what the Legislature intended.” State v. J.M., 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)).

¶11 To determine the plain meaning of an undefined term, we may also look to the dictionary. Estate of Haselwood 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.” Id. 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.

¶12 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.

¶13 Finch argues that there is an “application” of a police dog under RCW 16.08.040(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 “[m] aster 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. 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 history of the exemption supports this narrow interpretation. We decline to adopt it.⁴

¶14 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, “The fact that Finch was mistakenly bitten by Rex does not convert a lawful use of Rex to an unlawful use.” Finch, slip op. at 6. State action does not become unlawful merely because it was predicated on a mistake. See generally Roger J. Traynor, The Riddle of Harmless Error 3, 9 (1970). Accordingly, we hold that the use of Rex was a lawful application of a police dog and that under RCW 16.08.040(2), Thurston County is exempt from strict liability for the injuries to Finch.⁵ Our decision is bolstered by a recent decision of a federal court concluding the exception applied when a 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, 2016 U.S. Dist. LEXIS 69433, at *12 (W.D. Wash. May 25, 2016).

¶15 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. While 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 action against municipalities, such as negligence, civil rights violations, or assault, along with or in lieu of a strict liability 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

¶16 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.

Fairhurst, Stephens, Gordon McCloud, and Yu, JJ., concur.

1 The Thurston County Sheriff’s Office and the Tumwater Police Department are parties to an interlocal cooperation agreement to assist each other in law enforcement operations when requested.

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.

4 The dissent seems to believe a properly trained canine officer faced with an armed attacker threatening its handler will not intervene until 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 of law for the 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 855, 567 P.2d 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 immunity 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 4.24.410(2). This immunity for dog handlers, however, would not apply to situations where a police officer used a police dog in bad faith.

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).