Making the government or its employees pay for a dog attack is certainly possible but definitely not easy. The common law and the existing dog bite statutes impose liability primarily on the owner of the attacking dog. To hold anyone else legally liable for a mauling, one needs legal grounds and strong evidence; to make a claim against a governmental entity or employee, one also must satisfy the requirements of the applicable governmental tort claims act. Proving that a government or its employees are liable is very difficult and the services of an attorney are absolutely required.
Legal grounds for liability of the government
The strongest legal ground for governmental liability would be a specific law requiring the governmental unit or employee to take an action which would have prevented the victim's injury from happening. Unfortunately, there are few such laws in the United States and, in jurisdictions where such a law exists, courts usually exonerate the governmental defendants by holding that the law only seems to create a mandatory duty but doesn't really do so.
In the absence of a law creating a mandatory duty, the plaintiff has to prove that the state's governmental tort statute imposes liability on some other ground. The grounds differ from state to state. Sometimes negligence is actionable, and sometimes it is not. The creation or failure to correct a dangerous condition of public property usually is a proper ground for suit, but it does not always apply to dog attacks.
Special defenses and procedures
If the victim's attorney can pinpoint a viable ground for liability, there are two major hurdles to a governmental liability case which do not exist in other cases. The first is that the governmental tort statute will set forth special defenses that other defendants do not have. An example is the recreational activity defense, which says that the government is shielded from liability for dangerous conditions existing on recreational property like dog parks or bicycle paths. The second hurdle is that the governmental tort statute will require the claimant to obey special procedural rules, such as a very short statute of limitations and the submission of a timely written claim to the correct governmental agent.
The claim requirement has resulted in many cases being lost. Generally, one must notify the proper agency of the possibility of a claim as early as 90 days after it arises (to know the exact amount of time, an attorney has to review the governmental tort procedure in the jurisdiction). If and when the claim is denied, there is a certain, limited amount of time to file suit in court. Again, an attorney must review the law to determine this date. Note that the laws which permit minors to file their claims after reaching adulthood do not apply to claims against governmental defendants.
Example of a winning case: Cooney v. Parlier Unified School District
Here is an example of a successful dog mauling case against several governmental agencies. In Krystal Cooney v. Parlier Unified School Dist., County of Fresno, City of Parlier, et al., Attorney Kenneth M. Phillips proved that a pack of vicious, wild dogs had been living on the premises of a high school as a result of actions taken by the district's employees, and that the district, city and county were aware of the condition for 10 years. The governmental defendants filed demurrers, a motion for judgment on the pleadings, and a motion for summary judgment, all of which were won by Mr. Phillips' client. Within three hours of winning the summary judgment hearing, Mr. Phillips got the defendants to agree to a settlement.
So in order to make a case "stick" against a governmental agency, the plaintiff needs the facts, legal grounds, a properly drafted complaint, and evidence such as deposition testimony or at least declarations that will enable the victim to win a summary judgment motion.
The strategy to follow when the government is a possible defendant
That's the law, so now let's consider the strategy. If one sees a clear path to obtaining compensation from an insurance company, such as the homeowner policy of the dog owner, there is no need to add additional defendants, let alone governmental agencies or employees. In fact, doing so is a bad tactic because -
- It spreads out the defense costs among another a number of defendants, while increasing the cost to the plaintiff.
- The workload for the plaintiff and his attorney is multiplied.
- At trial, the plaintiff might find that he has unwittingly created the basis for a number of defenses and adverse strategies along the lines such as apportionment of damages.
- Simple matters like entering into a settlement are complicated by things like good faith settlement motions.
- Giving a jury a choice of defendants is a bad tactic because it makes their job harder. It also makes the trial longer.
The best procedure to follow at the beginning of a case that could involve governmental defendants is for an attorney to evaluate the claim from a monetary recovery standpoint. Then then one must consider whether there is a direct legal path to a defendant with sufficient insurance coverage. If so, one should stop there; do not add other defendants without a very good reason to do so.
If it appears necessary or prudent to add other defendants, the attorney should do a memorandum of law first, and begin marshaling the evidence or at least preparing a detailed plan for investigation and/or discovery. Lawyers who are considering adding a governmental defendant should consider contacting Attorney Kenneth M. Phillips for special templates and a consultation.