                                                                     FILED
                                                             COURT OF APPEALS DIV
                                                              STATE OF WASHINGTON

                                                              2018 OCT 22 AM 10: 1 14


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KARY L. CALDWELL,                      )
                                       )    No. 78159-6-1
                     Appellant,        )
                                       )    DIVISION ONE
               v.                      )
                                       )    UNPUBLISHED OPINION
GRAYS HARBOR COUNTY, a                 )
governmental entity; JENNIFER M.       )
SMITH and JOHN DOE SMITH,              )
individually and the martial community )
composed thereof; SHAWN M. SMITH )
and JOHN DOE SMITH, individually       )
and the marital community composed )
thereof; JAMES THOMPSON and            )
JANE DOE THOMPSON, individually )
and the marital community composed )
thereof,                               )
                                       )
                      Defendants,      )
                                       )
               and                     )
                                       )
CITY OF HOQUIAM,                       )
                                       )
                      Respondent.      )    FILED: October 22, 2018
                                       )

       BECKER, J. — Appellant Kary Caldwell was attacked by a dog that had
been declared dangerous by the City of Hoquiam. She brought suit against

Hoquiam. This dispute was previously before this court in Caldwell v. City of

Hoquiam, 194 Wn. App. 209, 373 P.3d 271, review denied, 186 Wn.2d 1015

(2016). In this appeal, Caldwell argues that Hoquiam's duties under its animal

control ordinance were owed to her under the legislative intent exception to the
No. 78159-6-1/2


public duty doctrine. We need not decide whether the legislative intent exception

applies, because even if it does, the ordinance does not create a duty to act

before the dangerous dog declaration becomes final.

                                      FACTS

       Shawn Smith owned a large dog named Temper. On August 11, 2009,

the City of Hoquiam's animal control officer, Robert Hill, responded to a call that

Temper was viciously attacking another dog. Because this was not Temper's

first incident of attacking another dog, Hill informed Smith that Temper would be

declared a dangerous dog under Hoquiam's dangerous dog ordinance, Hoquiam

Municipal Code(HMC)3.40.080. Hill served Smith with a dangerous dog

declaration. He left without impounding Temper.

       Once a dog has been declared dangerous, the owner is subject to five

requirements under HMC 3.40.080. These include maintaining a proper

enclosure for the dog, posting visible warning signs, obtaining a dangerous dog

license from the city, muzzling the dog whenever it is outside its enclosure, and

maintaining an insurance policy in the amount of $250,000. HMC 3.40.080(5).

       Smith timely appealed the dangerous dog declaration to the Hoquiam

Municipal Court. See HMC 3.40.080(4). On September 1, 2009, the municipal

court affirmed the declaration that Temper was a dangerous dog and ordered

Smith to comply with the dangerous dog requirements within 10 days. According

to Officer Hill, Smith had until 5:00 p.m. on Friday, September 11, to comply.

       The record indicates that Smith moved out of Hoquiam on or before

September 10. Officer Hill visited Smith's residence on September 14, 2009, his


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next working day after the expiration of the grace period. No one answered the

door. Hill left a notice. Two days later, Hill returned. Smith's landlord told Hill

that Smith had moved out and taken Temper with her.

       Hill asked the landlord to tell Smith to contact him. Hill notified

neighboring Grays Harbor Animal Control and Aberdeen Animal Control, as an

advisory, that Smith was in violation of Hoquiam's dangerous dog ordinance.

According to Hill, he took no further action because he lacked "jurisdiction or

investigative powers to go outside the city limits."

       On September 26, 2009, Kary Caldwell visited James Thompson at his

apartment in Kent. Thompson lived with Smith's daughter and was taking care of

Temper. Temper attacked Caldwell, fracturing her arm in 10 places.

       Caldwell brought suit against Hoquiam, alleging that the city had a duty to

impound Temper immediately upon declaring it a dangerous dog. The trial court

granted partial summary judgment in favor of Caldwell solely on the question of

whether Hoquiam owed Caldwell a duty. The court held that Hoquiam owed

Caldwell a duty to impound Temper immediately on August 11 when Hill served

Smith with the dangerous dog declaration. A jury found that Hoquiam breached

that duty and awarded Caldwell $435,000.

       Hoquiam appealed. This court reversed. We concluded there is no duty

under the Hoquiam ordinance to enforce a dangerous dog declaration upon

service by immediately impounding the dog. Caldwell, 194 Wn. App. at 221.

       On remand, Caldwell moved for summary judgment on the alternative

theory that "the City of Hoquiam Municipal Code demonstrates a clear legislative


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No. 78159-6-1/4


intent to identify, protect and compensate human beings who come into contact

with dangerous dogs, including the plaintiff Kary Caldwell." The trial 'court denied

Caldwell's motion.

       Caldwell appealed the denial directly to the Washington Supreme Court

under RAP 4.2. The court concluded that there were no remaining legal claims

to be decided and then transferred the appeal to this court.

                                     ANALYSIS

       In Washington, government entities are liable for their tortious conduct to

the same extent as a private person or corporation. RCW 4.92.090; RCW

4.96.010; Washburn v. City of Federal Way, 178 Wn.2d 732, 753, 310 P.3d 1275

(2013). Consequently, a plaintiff claiming that a municipality has acted

negligently may recover after proving the existence of a duty, a breach thereof, a

resulting injury, and proximate causation between the breach and the resulting

injury. Washburn, 178 Wn.2d at 753.

       The question in this appeal is whether Caldwell established that Hoquiam

owed her a duty. Whether a duty exists is a question of law which this court

reviews de novo. Caldwell, 194 Wn. App. at 214.

       Unlike private persons, governments are tasked with duties that are not

legal duties within the meaning of tort law, such as governing, passing laws, or

holding elections. Washburn, 178 Wn.2d at 753. For this reason, when the

defendant in a negligence action is a governmental entity, "a plaintiff must show

the duty breached was owed to him or her in particular, and was not the breach

of an obligation owed to the public in general, i.e., a duty owed to all is a duty


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No. 78159-6-1/5


owed to none." Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871,

878, 288 P.3d 328 (2012). This is known as the public duty doctrine.

       There are several exceptions to the public duty doctrine. Bailey v. Town

of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257, 753 P.2d 523(1987). Though

they are referred to as exceptions, they are simply shorthand for ways in which a

governmental entity may owe a duty to the plaintiff. Washburn, 178 Wn.2d at

753.

       Caldwell argues that Hoquiam owed her a duty under the legislative intent

exception. The legislative intent exception to the public duty doctrine "allows a

plaintiff to claim that a governmental entity owes him or her a legal duty where a

legislative enactment'evidences a clear legislative intent to identify and protect a

particular and circumscribed class of persons." Washburn, 178 Wn.2d at 754,

quoting Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988).

       Washington first recognized the legislative intent exception in Halvorson v.

Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978). The plaintiff, the widow of a

man who died in a Seattle hotel fire, was allowed to proceed against the city on

the theory that a declaration of purpose in the city housing code gave rise to a

particular duty owed to residents of the dilapidated hotels. Halvorson, 89 Wn.2d

at 677. While most codes are enacted merely for purposes of public safety or for

the general welfare, the Seattle housing code was "an ordinance enacted for the

benefit of a specifically identified group of persons as well as, and in addition to,

the general public." Halvorson, 89 Wn.2d at 677.




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No. 78159-6-1/6


       The Washington Supreme Court revisited the legislative intent exception

in Washburn, 178 Wn.2d at 754. Under RCW 10.14.010 police officers have a

duty to serve antiharassment orders. Washburn, 178 Wn.2d at 755-56. The

plaintiffs in Washburn alleged that an officer's negligent service of an

antiharassment order resulted in a woman's death at the hands of her abusive

boyfriend. Washburn, 178 Wn.2d at 738-40. The court found that the

legislature's declaration of purpose established an intent to protect a particular

class of persons suffering harassment at the hands of others, satisfying the

requirements of the legislative intent exception. Washburn, 178 Wn.2d at 755-

56. The court held that under the legislative intent exception, "if the City's

discharge of this duty to act, service of the order, constituted 'culpable neglect,'

[the City] bears liability in tort." Washburn, 178 Wn.2d at 757, quoting Halvorson,

89 Wn.2d at 678.

       Citing Washburn, Caldwell contends that HMC 3.40.080 manifests a clear

legislative intent to protect her. She argues Hoquiam owes a duty to her as an

individual under the ordinance and Hoquiam was required to exercise reasonable

care when carrying out the duties created by the ordinance. But she fails to

identify a duty created by the ordinance that Hoquiam failed to carry out.

       Before addressing whether a government entity owed a duty created by

statute or ordinance to the public as a whole or to a particular individual, the

alleged duty must first be identified, i.e., what did the statute or ordinance require

the government entity to do? The legislative intent exception, along with the

other exceptions to the public duty doctrine, are merely focusing tools for


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No. 78159-6-1/7


determining whether an existing duty is owed solely to the public or if it is also

owed to an individual. Washburn, 178 Wn.2d at 753. The exceptions do not

create a duty to act independent of an underlying statutory or common law duty.

For instance, in Halvorson and Washburn, the duties to act were rooted,

respectively, in the failure to enforce the building code and negligence in carrying

out the statutory obligation to serve an antiharassment order. Halvorson, 89

Wn.2d at 677; Washburn, 178 Wn.2d at 756. The existence of a duty must be

established before we can determine whether that duty was owed to a particular

plaintiff.

        In the first appeal, this court determined that Hoquiam owed no duty under

state or common law. Caldwell, 194 Wn. App. at 222-23. Therefore, Caldwell

must establish that Hoquiam owed her a duty under the municipal code.

Caldwell, 194 Wn. App. at 223.

        Caldwell contends Hoquiam's duty was to ensure that Smith was

complying with the five requirements of HMC 3.40.080(5), such as obtaining

insurance and building a fenced enclosure for Temper. She argues that this duty

arose at some point between when Officer Hill served the declaration on August

11 and when Smith timely appealed several days later.

        The ordinance states that a dangerous dog declaration is final upon

service unless timely appealed:

        A declaration that a dog is dangerous shall be final unless appealed
        by the owner or person in control of the dog within ten days of
        service.




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No. 78159-6-1/8


HMC 3.40.080(4). From this sentence, Caldwell reasons that the declaration

was effectively final when served and could be immediately enforced until Smith

filed her appeal. This court rejected this argument in the first appeal.

               HMC 3.40.080(4) provides that "[a] declaration that a dog is
       dangerous shall be final unless appealed by the owner or person in
       control of the dog within ten days of service." Thus, a fair reading
       of this provision is that the declaration cannot be final during the 10
       days following service. To read this provision otherwise requires
       that we conclude that the declaration becomes "final" for the 10 day
       period following service and prior to a possible appeal. This we
       decline to do.

Caldwell, 194 Wn. App. at 220.

       This court's conclusion that the declaration was not final remains the law

of this case. "In its most common form, the law of the case doctrine stands for

the proposition that once there is an appellate holding enunciating a principle of

law, that holding will be followed in subsequent stages of the same litigation."

Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844(2005). "It is also the rule

that questions determined on appeal, or which might have been determined had

they been presented, will not again be considered on a subsequent appeal if

there is no substantial change in the evidence at a second determination of the

cause." Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196

(1988), quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965).

The application of the doctrine is discretionary under RAP 2.5(c)(2). We see no

reason to depart from this court's reasoning in the first appeal.

       Accordingly, Caldwell's argument about the legislative intent exception is

foreclosed by this court's decision in the first appeal. Absent a final declaration,

Smith was not required to comply with HMC 3.40.080(5), and Hoquiam had no

                                          8
No. 78159-6-1/9


duty to enforce the ordinance. Because Hoquiam did not have a duty to enforce

the ordinance under the facts of this case, we do not reach the question whether

the obligations created by the ordinance are owed to Caldwell as an individual

under the legislative intent exception. The trial court properly denied Caldwell's

motion for summary judgment.

      Affirmed.




WE CONCUR:




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