Gorman v. Pierce County
307 P.3d 795
Wash. Ct. App.2013Background
- Neighbors' pit bull Betty (and puppy Tank) had multiple prior aggressive incidents and complaints; Pierce County animal control received several reports in 2006–2007 but never classified Betty as a "potentially dangerous dog."
- Pierce County code (former PCC 6.07.010(A)) allowed the county to "may find and declare" a dog potentially dangerous but also used "shall classify potentially dangerous dogs" language; classification would trigger confinement/seizure requirements.
- On Aug. 21, 2007 Betty and Tank entered Sue Gorman’s house through an open sliding door and severely mauled Gorman and her dog; Gorman required hospitalization and the dogs were later euthanized.
- Gorman sued the dog owners (strict liability) and Pierce County (negligent failure to act/enforce); dog owners admitted liability; Pierce County defended under the public duty doctrine and raised comparative fault.
- The trial court denied Pierce County’s CR 50 motion on public duty grounds, allowed limited evidence about prior complaints after Pierce County "opened the door," and submitted the case to a jury which found all defendants liable and apportioned fault (Pierce County 42%, owners 52%, others remainder; Gorman 1%).
- On appeal the court considered whether the failure-to-enforce exception to the public duty doctrine applied, whether jury instructions and evidentiary rulings were proper, and whether plaintiff preserved and proved issues like contributory negligence and the emergency doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of public duty doctrine / failure-to-enforce exception | Gorman: county had a mandatory duty under PCC 6.07.010(A) to apply the classification process and thus the failure-to-enforce exception applies | Pierce County: ordinance was discretionary; public duty doctrine bars individual liability | Court: failure-to-enforce exception applies — ordinance imposed a duty to at least apply the classification process when presented with apparently valid reports, so county owed plaintiff an enforceable duty |
| Jury instructions on county duty | Gorman: instructions were proper summaries of claims and statutory duties | Pierce County: instruction 5 misstated county’s legal duty (overbroad) | Court: instructions read as a whole correctly stated law; no reversible error |
| Admission of prior complaints about other dogs | Gorman: prior-complaint evidence showed county knew of dangerousness; admissible after county opened the door | Pierce County: evidence irrelevant and unfairly prejudicial | Court: evidence became admissible after Pierce County’s cross-examination opened the door; limiting questioning avoided unfair prejudice |
| Renewal of Gorman’s JMOL re duty (contributory fault) | Gorman: as a matter of law she owed no duty to close her sliding door; JMOL should be granted | Evans-Hubbard / court: argument not raised in original CR 50(a), so new theory in CR 50(b) waived | Court: Gorman failed to preserve new legal theory in renewed motion; argument waived |
| Emergency doctrine instruction | Gorman: jury should have been instructed on emergency doctrine | Pierce County: omission proper | Court: Gorman did not properly propose instruction per CR 51(d); claim not preserved |
| Sufficiency of evidence for contributory negligence | Gorman: insufficient evidence that her conduct breached duty or proximately caused injury | Defendants: evidence supported jury inference that leaving door open and attempting to rescue dog were negligent | Court: substantial evidence supports jury’s finding that Gorman breached duty and that conduct proximately caused injuries |
Key Cases Cited
- Schmidt v. Coogan, 162 Wn.2d 488 (review of CR 50 motion standard)
- Osborn v. Mason County, 157 Wn.2d 18 (government negligence duty requires legal duty)
- Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774 (public duty doctrine and its exceptions)
- Bailey v. Town of Forks, 108 Wn.2d 262 (failure-to-enforce exception elements)
- Atherton Condo. Apt.-Owners Ass’n v. Blume Dev. Co., 115 Wn.2d 506 (construction of exceptions narrowly)
- Livingston v. City of Everett, 50 Wn. App. 655 (failure-to-enforce applied where officer released impounded dogs without required determination)
- Pierce v. Yakima County, 161 Wn. App. 791 (example where ‘‘shall’’/discretion language did not create mandatory enforcement duty)