                                                                                                      FILED
                                                                                               COURT OF APPEALS
                                                                                                   DIVISION II

                                                                                           2015 JAN 21        AM 9: 05




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

HAROLD RATH,                                                                  No. 45076 -3 - II


                                    Appellant/
                         Cross -Respondent,


        v.



 GRAYS       HARBOR      COUNTY,         a   municipal               UNPUBLISHED OPINION
 corporation   and political     subdivision     of the
 State of Washington,


                                    Respondent/
                              Cross -Appellant.




       LEE, J. —    Harold Rath appeals the judgment entered in favor of Grays Harbor County

following a jury trial on his claim that the County was liable for injuries suffered when he was

bitten by a police dog during his arrest. The County cross -appeals the trial court' s order denying

its motion for summary judgment arguing that the trial court erred by denying its motion for

summary judgment when the legislature abolished Rath' s cause of action before trial. Because the

legislature may   abolish a   statutorily created   cause of action at   any time, Rath   no   longer had   a cause
No. 45076 -3 - II



of action when          the legislature'   s amendment   became   effective.   Therefore, Rath' s appeal is moot.


Accordingly, we dismiss Rath' s appeal.1
                                                         FACTS


            On August 4, 2009, Grays Harbor County Sheriff' s Deputy Kevin Schrader was on patrol

when he observed a pickup truck creating a large cloud of dust. Schrader initiated a traffic stop of

the truck. After attempting to hit Schrader' s patrol vehicle, the driver of the truck sped down the

road. Schrader identified Rath as the truck driver. Ultimately, Rath drove down a dirt road, swam

across a river, and escaped.



            Schrader identified the truck as stolen. A 12 -gauge shotgun was found in the truck. And,


at the time, there was a felony arrest warrant authorizing Rath' s arrest on first degree kidnapping.

Rath spent the next few weeks evading law enforcement in order to prevent being arrested.

            On August 19, 2009, the Grays Harbor Sheriffs Office received information that Rath was


in   a   trailer   at a recreational park ( RV) park     in Hoquiam.    Deputy Robert Crawford responded to

the RV park with another deputy. Crawford was a K -9 handler and had his patrol canine, Gizmo,

with     him.      Although the responding deputies repeatedly ordered Rath to surrender, Rath did not

exit     the trailer.    Crawford deployed Gizmo to        effectuate   Rath' s   arrest.   Rath immediately began

striking and fighting Gizmo, but he was quickly subdued and successfully arrested. Rath sustained

numerous injuries and was transported for medical care after his arrest.




1 The County states that we do not need to consider its cross -appeal if the court' s judgment is
affirmed.          Because we dismiss Rath' s appeal as moot, the trial court' s order remains unchanged
and we do not address the County' s cross -appeal.


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No. 45076 -3 -II




         On March 23, 2012, Rath filed a civil complaint for strict liability damages under the strict

liability dog bite statute, RCW 16. 08. 040. At the time Rath filed the civil complaint, former RCW
16. 08. 040 ( 1941) was in effect and stated, in relevant part:


         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.



On June 7, 2012, the legislature         added section ( 2)      to RCW 16. 08. 040    which reads: "   This section


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


2012,   ch.   94, § 1.


         In December 2012, the          parties   filed   cross motions      for summary judgment. Rath argued


that the strict liability dog bite statute applied to police dogs owned by the County and there was

no genuine issue of material fact. Therefore, he was entitled to judgment as a matter of law. The


County moved for summary judgment arguing ( 1) the 2012 legislative amendments to the strict

liability dog    bite            which specifically excluded " the lawful application of a police dog" —
                         statute —




terminated Rath' s cause of action; and ( 2) Rath was not lawfully in the trailer at the time Gizmo

bit him. The trial court denied both motions for summary judgment.

         After the jury entered a verdict finding that Rath was not lawfully in the trailer, the trial

court entered judgment for the County and dismissed.Rath' s claims with prejudice. Rath appeals,

and the County cross appeals.




                                                             3
No. 45076 -3 -II



                                                         ANALYSIS


        Rath argues that the trial court erred by denying his motion for summary judgment and by

improperly instructing the jury on the definition of lawfully. The County argues that the trial court

erred by denying its motion for summary judgment because the 2012 amendment to the strict

liability dog bite statute eliminated Rath' s cause of action. Because the legislature has abolished

Rath' s cause of action, Rath has no remaining cause of action and his current appeal is moot.

         On March 23, 2012, Rath filed his civil complaint under former RCW 16. 08. 040. But, on

June 7, 2012, Laws         of   2012,   ch.   94, §   1 amended RCW 16. 08. 040 by adding a section that read:

 This section does not apply to the lawful application of a police dog, as defined in RCW

4. 24. 410."


         A plaintiff has no vested right in a tort action until final judgment has been entered in his


or her favor. Hansen v. West Coast Wholesale Drug Co., 47 Wn.2d 825, 827, 289 P. 2d 718 ( 1955).

  Where a tort action can be brought only by virtue ofa statute, there can be no vested right therein,

and   the Legislature may take away the                right at   any time.'   Hansen, 47 Wn.2d at 827 ( quoting

Robinson       v.   McHugh, 158 Wash. 157, 164, 291 P. 330 ( 1930),              aff'd, 160 Wash. 703, 295 P. 921

 1931)); Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wn.2d 584, 587, 478 P. 2d 232 ( 1970).


Here, Rath'         s claim was under    former RCW 16. 08. 040.         Because Rath' s claim was derived solely

from a statute, he had no vested interest in the claim unless a judgment was entered in his favor.

There was no judgment entered in Rath' s favor at the time the statute was amended; therefore, any

claim that Rath may have had under former RCW 16. 08. 040 was abolished by the legislature.




                                                                  4
No. 45076 -3 -II



        Once an appellant has been divested of his or her cause of action, the appeal becomes moot.

Hansen, 47 Wn.2d at 827. Because the legislature divested Rath of his claim under former RCW

16. 08. 040   when   Laws   of   2012,   ch.   94, § 1 became effective, Rath' s appeal is moot.


        We dismiss Rath' s appeal as moot.


        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:




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