                                                                                                                         CQURT   OF
                                                                                                                                    APPEALS
                                                                                                                              DIVISION II
                                                                                                                      ZDIS           24
                                                                                                                                           8: 34
                                                                                                                      STS
    IN THE COURT OF APPEALS OF THE STATE OF                                                                             O\       I        IGTO
                                                                                                   WASHING
                                                      DIVISION II

BRYENT FINCH                and     PATRICIA FINCH,                 a                     No. 45792 -0 -II
marital community,


                                            Appellants,


           v.

                                                                                    UNPUBLISHED OPINION
THURSTON                   COUNTY,              THURSTON
 COUNTY               SHERIFF' S            OFFICE,       ROD
DITRICH           ANI)       JANE        DOE      DITRICH,
INDIVIDUALLY AND AS HUSBAND AND
 WIFE AND THE MARITAL COMMUNITY
 COMPRISED THEREOF,


                                            Respondents.




         SUTTON, J. —         Officer Bryent Finch' and Patricia Finch appeal the superior court' s order


granting   partial    summary judgment          dismissing their        strict   liability claim2 against Thurston County,

the Thurston County Sheriffs Office, and Rod and Jane Doe Ditrich for injuries suffered when a
                                                                                     3
police   dog     bit Finch    during    a search    for   a   robbery     suspect.       We hold that ( 1)       the legislature




1 We refer to Officer Bryent Finch individually as Finch. We intend no disrespect.

2 The Finches voluntarily dismissed their claims of negligence and intentional infliction of
emotional       distress   after                       leaving
                                   the superior court' s ruling,                   only their   strict   liability   claim.   Thus,

our opinion addresses only their strict liability claim.

3 RCW 4. 24.410 grants immunity from any civil action to police dog handlers who use the dog in
the line of     duty in    good    faith.   The Finches' arguments relate solely to their strict liability claim
against Thurston County; they do not argue that Ditrich' s use of the dog was in bad faith. Under
RCW 4. 24. 410, Rod           and    Jane Doe Ditrich         are   immune from any        civil   liability   in this   case.       We

refer to the remaining two respondents, Thurston County and Thurston County Sheriff' s Office,
collectively     as   Thurston     County.
No. 45792 -0 -II




abolished strict liability claims for injuries resulting from lawfully used police dogs and ( 2) the

superior court properly dismissed the Finches' strict liability claim because the Finches failed to

show a genuine issue of material fact as to an unlawful use of Rex, the police dog. We affirm.

                                                             FACTS


                                               I. OFFICER FINCH' S INJURY


           On November 14, 2010, Finch, a Tumwater police officer, was dispatched to investigate

an   in-progress       burglary   at an abandoned          brewery    at   approximately 7: 00 PM.         Thurston County

Deputy Rod Ditrich and K -9 Rex also responded to the scene after Finch requested assistance.

Rex was not leashed.


           Finch   and    Ditrich    entered   the   building   to    search   for the   burglary     suspect.   The building

interior   was    very dark.      After Ditrich announced their presence three times without receiving a

response     from the      suspect,   Ditrich    commanded        Rex to       search.    Rex located a scent and began


tracking the suspect through the building. Dietrich and Finch followed the dog.

           When Ditrich saw that Rex was tracking directly to the suspect ahead of them, Ditrich

called   to the    dog   to   come   back to him      by   shouting, "[ hjere, here, here."           Clerk' s Papers ( CP) at


287. Finch, who had been following behind Ditrich, interpreted Ditrich' s shouting as telling him

where the suspect was located and Finch came up to Ditrich' s side. As Finch approached Ditrich,

he too     saw   the   suspect and shouted at        the   person     to   show   his hands.      According to Ditrich, Rex

believed that Finch was a threat to Ditrich and responded by biting Finch' s right testicle and right

inner thigh. Ditrich          commanded        Rex to   release   Finch from the         dog' s   bite. Ditrich then detained


the suspect and Finch drove            himself to the hospital. Finch underwent surgery that night and the


urologist removed one -quarter of Finch' s right testicle.




                                                                  2
No. 45792 -0 -II



                            II. LEGISLATURE' S AMENDMENT TO RCW 16. 08. 040.


           In 1941, the Washington Legislature enacted RCW 16. 08. 040, making a dog owner strictly

liable for injuries   caused    by   his   or   her   dog.   LAws OF 1941,    ch.   77, §   1. 4 In 2012, the legislature

amended      RCW 16. 08. 040 to        prohibit strict       liability   claims   for injuries   caused   by "   the lawful


application of a police      dog."    Codified in RCW 16. 08. 040( 2). The amendment, part of Substitute


House Bill (SHB) 2191, became effective on June 7, 2012.

                                                       III. PROCEDURE


           The Finches sued Thurston County for negligence, intentional infliction of emotional

distress,   and strict   liability   under      RCW 16. 08. 040.     They filed their complaint on June 6, 2012,

one   day   before the   amendment         to former RCW 16. 08. 040 became            effective.   Both parties moved


for summary judgment on the strict liability claim. The superior court granted Thurston County' s

motion, denied the Finches' motion, and dismissed the Finch' s strict liability claim because RCW

16. 08. 040( 2)   prohibits strict    liability for     injuries resulting from      lawfully    used police     dogs.   The


Finches appeal.




4
    That   statute remains unchanged            today, but is   now codified as     RCW 16. 08. 040( 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 of the former viciousness of such dog
or the owner' s knowledge of such viciousness.


                                                                3
No. 45792 -0 -II



                                                         ANALYSIS


          We review summary judgment orders de novo. Durland v. San Juan County, 182 Wn.2d

55, 69, 340 P. 3d 191 ( 2014).        Summary judgment is appropriate only if there is no genuine issue

of material fact in the pleadings, affidavits, and depositions on file, and the moving party is entitled

to judgment as     a matter of     law. CR 56( c).         We review a trial court' s statutory interpretations de

novo.    Ass 'n of Wash. Spirits      and      Wine Distribs.        v.   Wash. State Liquor Control Bd.,          Wn.2d


     340 P. 3d 849, 853 ( 2015).


          The Finches   argue      that ( 1)        RCW 16. 08. 040( 2) does not bar their strict liability claim

because the amendment applies prospectively and they filed their complaint the day before the

amendment' s     effective    date;    and (    2)    alternatively, even if RCW 16. 08. 040( 2) were to apply

                                                                          the lawful                             dog.   We
retroactively, Finch' s injuries       were not caused           by                    application of a police




disagree.


I. THE LEGISLATURE ABOLISHED STRICT LIABILITY FOR INJURIES RESULTING FROM THE LAWFUL
                                                     USE OF A POLICE DOG


          The legislature may abolish an accrued cause of action that does not affect a substantive or

vested right.   1000 Va. Ltd. P' ship          v.   Vertecs   Corp.,      158 Wn.2d 566, 586, 146 P. 3d 423 ( 2006). A


cause of action that exists solely " by virtue of a statute" is not a vested right.5 Ballard Square
Condo. Owners Ass 'n         v.   Dynasty      Constr. Co., 158 Wn.2d 603, 617, 146 P. 3d 914 ( 2006).                  The


legislature can abolish a statutory cause of action even if a plaintiff' s lawsuit is pending, but it




5
    An   accrued cause of     action   is    a vested right      only if it "' springs from a contract or from the
principles of   the   common       law. "'     1000 Va. Ltd. P 'ship, 158 Wn.2d at 587 ( quoting Robinson v.
McHugh, 158 Wash. 157, 163, 291 P. 330 ( 1930)).



                                                                 4
No. 45792 -0 -II




cannot do so after a trial court enters final judgment. Ballard Square, 158 Wn.2d at 618; Wash.

State Farm Bureau Fed' n v. Gregoire, 162 Wn.2d 284, 304, 174 P. 3d 1142 (2007).


             We review the plain language of former and amended versions of RCW 16. 08. 040 to


determine their plain meaning and give effect to the legislature' s intent. Pac. Marine Ins. Co. v.

Dep' t      of Revenue, 181 Wn.              App.    730, 737, 329 P. 3d 101 ( 2014).                     If a statute is unambiguous, we


apply the plain language and our inquiry goes no further. Bowie v. Dep' t ofRevenue, 171 Wn.2d

1, 11, 248 P. 3d 504 ( 2011).                  Before the 2012 amendment, former RCW 16. 08. 040( 1) stated that


    t] he   owner of      any   dog    which shall         bite any      person ...          shall be liable for such damages as may

be   suffered      by the person       bitten." LAWS           of     1941,       ch.   77, § 1.    Amended RCW 16. 08. 040 prohibits


strict      liability   claims against        the   owner of a         lawfully used             police   dog,   stating: " This section does

                                                                                                                                    6
                                                                                   dog,           defined in RCW 4. 24. 410. "          RCW
not    apply to the lawful              application         of a police                     as




16. 08. 040( 2).         The language in both the former and amended versions of RCW 16. 08. 040 is plain

and unambiguous.                The Finches had no vested interest in their claim because the superior court

had    not yet entered          final judgment.              Thus, the legislature abolished the Finches' strict liability

claim against Thurston County when it amended RCW 16. 08. 040, effective June 7, 2012.




6
    RCW 4. 24. 410( 1)(          a)   defines       a "[   p] olice    dog"       as "   a dog used by a law enforcement agency
specially trained           for law          enforcement       work          and under        the      dog handler." RCW
                                                                                                    control      of   a

4. 24. 410( 1)(     c)   defines      a "[    d] og handler"          as "   a law enforcement officer who has successfully
completed training as prescribed by the Washington state criminal justice training commission in
police  dog handling." RCW 4. 24. 410( 2) provides that "[ a] ny 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        dog or accelerant detection dog." The Finches cite this good faith immunity provision
      police

as further evidence of legislative intent to subject municipalities to strict liability claims for police
dog bite injuries, but that immunity applies to negligence claims, not strict liability claims.

                                                                              5
No. 45792 -0 -II



                                              II. LAWFUL USE OF A POLICE DOG


          The Finches argue that the County does not qualify for strict liability immunity under RCW

16. 08. 040( 2) because the           County     cannot prove        that Rex    was   lawfully   used as a police   dog. 7 But

the Finches present no facts to support this argument. There is no dispute that Finch and Ditrich


were    searching for          a   burglary   suspect when           Ditrich deployed Rex.          The fact that Finch was


mistakenly bitten         by   Rex does       not convert a     lawful       use of   Rex to   an unlawful use.   The Finches


present no facts to create a genuine issue of material fact as to the unlawful use of a police dog.

          Because     no   Washington          appellate court        has defined the " lawful application of a police


dog,"   the Finches rely on            federal    cases   to interpret RCW 16. 08. 040( 2).            If we were to rely on

federal   cases,    Thurston        County     cites   Miller   v.   Clark     County, 8 the only published Ninth Circuit

case on this issue, which limited strict liability for police dog bite injuries to only those injuries

caused by use of a police dog that violates the Fourth Amendment. We decline to rely on federal

cases   to interpret RCW 16. 08. 040( 2).               We do not reach the issue of defining " lawful application

of a police dog" because the Finches did not present any facts to create a genuine issue of material

fact as to the unlawful use of Rex.


                                                          CONCLUSION


          We hold that ( 1) the legislature abolished strict liability claims for injuries resulting from

lawfully used police dogs and ( 2) the superior court properly dismissed the Finches' strict liability



7
    The Finches     also present       four    alternative arguments.            Because we hold that the Finches did not
present any genuine issue of material fact as to the lawful application of Rex, we decline to address
these alternatives.


8
    Miller   v.   Clark   County,      340 F.3d 959, 968             n. 14   ( 9th Cir. 2003) (   citing McKinney v. City of
Tukwila, 103 Wn. App. 391, 409, 13 P. 3d 631 ( 2000)).

                                                                      6
No. 45792 -0 -II



claim because they fail to show a genuine issue of material fact as to an unlawful use of Rex, the

police dog. We affirm.

        A majority of the panel having decided that this opinion will not be printed in the
Washington Appellate reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We   concur:
