                                                                                                         FILED
                                                                                                COO , I OF APPEALS
                                                                                                     D"
                                                                                                      VIS101411

                                                                                            2013 AUG 13 APB 10?27
   IN THE COURT OF APPEALS OF THE STATE OF W                                                1        T
                                                                                                           6S    ING5 ti

                                           DIVISION II                                          8Y
                                                                                                      U
                                                                                                      ll.F'
                                                                                                        E

SUE ANN GORMAN, a single person,                                           No. 42502 5 II
                                                                                     - -
                                                                          consolidated with

                Respondent Cross Appellant,
                           /                                               No. 42594 7 I1
                                                                                     - -


        V.




PIERCE COUNTY, a county corporation;                                   PUBLISHED OPINION
SHELLIE R. WILSON and " JOHN DOE"
WILSON, husband and wife and the marital
community composed thereof; ZACHARY
MARTIN        and " JANE     DOE" MARTIN,
husband and wife and the marital community
composed    thereof; and    JACQUELINE
      HUBBARD
EVANS -                 and "   JOHN            DOE"
HUBBARD, husband and wife and the marital
community composed thereof,

                Appellants Cross
                           /

        PENOYAR, J. — Two       dogs entered Sue Ann Gorman's house through an open door and
mauled her in her bedroom.       Invoking a statute imposing strict liability for dog bite injuries,
                                                                                      -

Gorman sued the_dog owners, Shellie Wilson, Zachary Martin, and Jacqueline Evans -Hubbard.
Gorman also sued Pierce County for negligently responding to complaints about the dogs before

the attack. Pierce County invoked the public duty doctrine and sought dismissal of the claims

against it,but the trial court ruled that the failure to enforce exception applied. A jury found all
defendants liable and also found that Gorman's actions contributed                 to her       injuries. Pierce

County appeals, arguing that (1)the "failure to enforce" exception to the public duty doctrine
does not apply, 2) jury instructions misstated Pierce County's duty of care, and (3) trial
                ( the                                                               the
                                                                     about Wilson's other        dogs.   Gorman
court   erroneously admitted evidence      of   prior complaints

cross appeals, arguing that (4)the trial court erred by denying her motions for judgment as a
matter of    law, 5) trial
                  ( the      court erred   by failing   to   give   the emergency doctrine instruction, and
42502 5 II /42594 7 II
      - -         - -



6)insufficient   evidence supports the         jury's verdict        on   contributory fault. Because Pierce

County had a mandatory duty to act, we affirm the trial court's determination that the failure to

enforce exception applies. Additionally, the jury instructions properly stated the law and Pierce

County opened the door to evidence about Wilson's other dogs. We further hold that Gorman

failed to properly renew her motion for judgment as a matter of law and this argument is waived,

Gorman failed to properly present the emergency doctrine instruction to the trial court; and there

is sufficient evidence to support the jury's verdict that Gorman was contributorily negligent in

incurring her injuries.

                                                     FACTS


I.      SUBSTANTIVE FACTS


        Shellie Wilson lived in Gig Harbor with her 16- old son, Zachary Martin. In 2006,
                                                      year -

they acquired a pit bull named Betty. Betty later had a litter of mixed breed puppies, including
                                                                        -
one   named Tank.       In February 2007, Wilson and Martin gave Tank to Jacqueline Evans -

Hubbard.


        Two houses away from Wilson, Sue Gorman lived with her service dog, Misty..

Gorman's next door neighbor, Rick Russell, owned a Jack Russell terrier named Romeo.
              -
        On the cul de sac where Wilson, Gorman, and Russell lived, residents frequently let their
                   - -

dogs roam outdoors without a leash. Gorman left her sliding glass door open so that Misty and
Romeo could come and go as they pleased.

        Betty   was   the   subject   of several   complaints   to   police   and animal control officers. On


August 31, 2006, Betty and another dog named Lola, belonging to Martin's houseguest,

aggressively confronted Wilson's next door neighbor in his yard, preventing the neighbor and
                                      -
his son from leaving their house for approximately 90 minutes. The neighbor called 911 and an
                                                        2
42502 5 II /42594 7 II
      - -         - -



animal control officer contacted Wilson. On the basis of Wilson's admissions, the officer cited

Wilson for allowing the dogs to run loose and failing to have a dog license. Wilson demanded
that Martin's houseguest remove Lola from the house, and the houseguest complied.

       A Pierce County ordinance allowed the county to classify a dog as " potentially

dangerous" if the county had probable cause to believe the dog (1)bit a person or animal, 2)
                                                                                          (
chased or approached a person "in a menacing fashion or apparent attitude of attack," (3)
                                                                                    or   was
known to otherwise threaten the    safety of humans   or   animals.   Former Pierce County Code

PCC)6.2.2007).The county had a duty to evaluate a dog to determine if the dog was
    010(
       T
       0 ) (
potentially dangerous if it had (1)a complainant's written statement that the dog met the code's
definition, 2)a report of a dog bite, 3)testimony of an animal control or law enforcement
            (                         (
officer who observed the   dog, or (4)other substantial evidence." RP at 964; Former PCC
                                       "

010(
6.7.2007). In deciding to classify a dog, the county could consider prior complaints
   A
   0 ) (
about other dogs that had previously belonged to the same owner. After classification, the dog's
owner would be required to keep the dog confined, even during the pendency of an appeal. The
county would be required to seize any potentially dangerous dog that violated any restriction
imposed on potentially dangerous dogs.

        During a three week period in 2007, Pierce County received three more complaints about
                       -
incidents involving Betty. On February 10, 2007, as Gorman returned from the grocery store,

Betty chased Gorman and Misty, Gorman's service dog, into Gorman's house. Fifteen minutes
 later, Gorman tried to retrieve her groceries from the car but Betty again confronted her.
 Gorman commanded Betty to leave and kicked at her, but Betty bit Gorman's pant leg. Using a
 stick she grabbed from a pile in the yard, Gorman fended Betty off until retreating to safety
 inside her house.   Gorman then called 911, but Betty left before a sheriff's deputy arrived an
                                                3
42502 5 II /42594 7 II
      - -         - -



hour later. Finding no one home at Wilson's house, the deputy advised Gorman to call animal

control the   following morning. Gorman testified that she called animal control and left a

message, but she did not receive        a   return   call and did not call       again. Animal control had no

record of Gorman's call.


         The second complaint followed an incident on February 22, 2007. Russell called animal
control to report   Betty and another   loose   dog chasing    a   child   on   rollerblades. An animal control

officer arrived the following day but found no one at Wilson's home. The officer left a note on
the door but Wilson and Martin did not               respond. The officer also mailed Russell a form to

provide a written statement. Russell did not provide a statement until six months later, after the
dogs attacked Gorman.

         Gorman made the third complaint on March 1, 2007. Betty chased Misty into Gorman's

house and proceeded to jump aggressively at Gorman's sliding glass door. Gorman called 911,
but Betty again had left by the time a deputy arrived. About 30 minutes later, the deputy and
Martin .appeared at Gorman's house; Martin then apologized to Gorman, denied Betty's
involvement, and promised to fix Wilson's fence. The deputy had Gorman and Martin exchange

phone numbers and encouraged Gorman to contact Martin directly in the future.
         Wilson owned other dogs before Betty, and Pierce County records showed 10 complaints

about Wilson's other dogs.       Based on Wilson's prior history, an animal control expert later

opined that Pierce County could have declared Betty potentially dangerous after the August 31,
2006, incident with Wilson's next door neighbor. The expert also opined that Pierce County
                                  -




1
    There was conflicting testimony on whether a second dog was present and, if so, whether it was
Tank.
                                                          4
42502 5 II /42594 7 II
      - -         - -



should have declared Betty potentially dangerous after any of the three incidents on February 10,

February 22, and March 1, 2007.

        Betty's aggressive behavior continued, but Pierce County did not receive further

complaints. Gorman called Martin about 10 times regarding various incidents, but Martin never
responded. During an .incident in July 2007, Betty and Tank both entered Gorman's house

through   the open    sliding glass   door.   Gorman believed Betty and Tank had come to confront

Misty and Romeo, but Gorman got the dogs to leave peacefully.

        On August 17, 2007, Evans -Hubbard, Tank's owner, left for two weeks. While she was

gone, Evans -Hubbard left Tank with Wilson. At the time, Tank was six to eight months old.
        At approximately 8:2 A. . on August 21, 2007, Betty and Tank entered Gorman's house
                          2 M
through the sliding glass door, which Gorman had left open for the night. Gorman, who was in
her bedroom with Misty and Romeo, awoke to the sounds of Betty and Tank snarling. Misty,
                                                         '
Gorman's service dog, ran outside to safety.

                                              Gorman's bedroom and         jumped   onto her bed.   Betty bit
          Betty and Tank then entered

Gorman     on   the left   arm.   Romeo then jumped off the bed and was mauled by both Betty and

Tank.


          Gorman tried to protect Romeo. She tried to lift Romeo, but Betty and Tank bit both her
hands. Gorman retrieved a gun from her nightstand, but the gun misfired. She threw the gun at
the   dogs and hit    them with her    walking stick   to   no   avail.   Gorman then managed to pick up

Romeo, put him in the closet, and close the door, while Betty repeatedly bit Gorman's face,,
breasts, and hands.        Tank forced the closet door open and, with Betty, began shaking Romeo.

Gorman fled the house and closed the sliding glass door behind her to trap the dogs inside. She

then called 911.

                                                       5
42502 5 II /42594 7 II
      - -         - -



        Gorman suffered serious injuries from 20 to 30 dog bites; she required hospitalization

and multiple surgeries. Romeo, the Jack Russell terrier, died from his injuries. Betty and Tank
were   later euthanized.     Wilson and Martin     pleaded guilty   to criminal   charges. They were

sentenced to probation and ordered to pay restitution.

II.     PROCEDURAL FACTS


          Gorman then filed this suit, claiming that (1)Wilson, Martin, and Evans -Hubbard were

strictly liable for the harm their dogs caused Gorman and (2)Pierce County negligently failed to
take appropriate action in response to the complaints about the dogs before the attack. Wilson,
Martin, and Evans -Hubbard admitted liability, but Pierce County did not. Pierce County raised

comparative fault as an affirmative defense.

          Before trial, Gorman sought permission to introduce Pierce County records showing 10

complaints about other dogs Wilson owned before she acquired Betty. The trial court allowed
testimony that 10 complaints were made, but it prohibited any testimony about the incidents
alleged    in the   complaints. However, during cross -examination of an animal control. officer,

counsel for Pierce County asked " why there wasn't sufficient evidence [ in the 10 prior

complaints] to      declare those   dogs potentially dangerous ?" Report of Proceedings (RP)Aug. 3,
                                                                                            (

2011) at 990. The officer's response suggested that the complaints involved leash law violations,
rather than    threatening behavior.       But on re-
                                                    direct examination, Gorman's counsel elicited

testimony that, in three of these incidents, a dog unsuccessfully attempted to attack a person.
          Pierce County moved for summary judgment dismissing it from the case, contending that

the public duty doctrine shielded it from liability because the county owed no legal duty to
Gorman      individually. The trial court denied the motion, allowing the negligence claim to

2
    RCW 16. 8.
        040(
           1 makes dog owners strictly liable for injuries their dogs cause.
           0 )
                                                     6
42502 5 II /42594 7 II
      - -         - -



proceed under the failure to enforce exception to the public duty doctrine. When Gorman rested
at trial, Pierce County unsuccessfully moved for judgment as a matter of law on the same

grounds presented in the summary judgment motion.
       When all defendants rested, Gorman moved for judgment as a matter of law, arguing that

the evidence was insufficient to show that she breached a duty and, thus, her negligence could

not have contributed to her injuries. The trial court denied the motion.

       The jury found all defendants, including Pierce County, liable to Gorman. The jury also
found that Gorman's fault contributed to her injuries. After the verdict, Gorman renewed her

earlier motion for judgment as a matter of law and argued that she had no legal duty to close her
sliding door.

       Pierce County appeals the denial of its motion for judgment as a matter of law,while also
arguing instructional and evidentiary error. Gorman cross appeals the jury's verdict finding her
at fault for contributing to her injuries.

                                             ANALYSIS


I.      THE PUBLIC DUTY DOCTRINE


        Pierce County argues that the trial court erred by denying its motion for judgment as a
matter of law on the negligence claim because, under the public duty doctrine, Pierce County

owed no duty of care to Gorman. Gorman argues that (1) public duty doctrine is contrary to
                                                      the
law or, in the alternative; 2) failure to enforce exception to the public duty doctrine applies
                            ( the


 3 Before trial, Gorman also argued, and the trial court agreed, that the special relationship
 exception to the public duty doctrine applied. But Gorman abandoned this theory by offering to
 withdraw her proposed jury instruction on the special relationship exception.

 4 The.jury apportioned fault as follows: 52 percent to Wilson and Martin, 42 percent to Pierce
 County, 5 percent to Evans -Hubbard, and 1 percent to Gorman.
                                                  7
42502 5 II /42594 7 II
      - -         - -




here. We hold that the public duty doctrine is not contrary to law and that the failure to enforce

exception applies here.

       We review a trial court's denial of a CR 50 motion for judgment as a matter of law de

novo, engaging in the same inquiry as the trial court. Schmidt v. Coogan, 162 Wn. d 488, 491,
                                                                                2

173 P. d 273 (2007).Judgment as a matter of law is proper only when, viewing the evidence in
     3

the light most favorable to the nonmoving party, substantial evidence cannot support a verdict

for the nonmoving party. Schmidt, 162 Wn. d at 491, 493.
                                        2

       Like any other defendant, a government is not liable for negligence unless it breached a

legal duty of care. Osborn v. Mason County, 157 Wn. d 18, 27 28, 134 P. d 197 (2006).Under
                                                  2          -        3

the public duty doctrine, a government's obligation to the public is not a legal duty of care;
instead, a government can be liable only for breaching a legal duty owed individually to the

plaintiff. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P. d 1261 (2001)
                                                                             3
quoting Taylor v. Stevens County, 111 Wn. d 159, 163, 759 P. d 447 (1988)).
                                        2                  2              However, the
public duty doctrine is subject to four exceptions: ( )the legislative intent exception, ( )the
                                                    1                                    2
failure to enforce exception, 3) rescue doctrine, and (4) special relationship exception.
                              ( the                      the

Babcock, 144 Wn. d at 786. Whether, in light of the public duty doctrine and its exceptions, a
               2

government defendant owed the plaintiff a legal duty is a question of law reviewed de novo.
Vergeson v. Kitsap County, 145 Wn. App. 526, 534, 186 P. d 1140 (2008).
                                                       3




                                                 E'?
42502 5 II /42594 7 II
      - -         - -



          A.     The Public Duty Doctrine Is Not Contrary to Law

          Gorman asks us to abolish the public duty doctrine and instead to apply a different test.
We decline to do so because our Supreme Court precedent approving the public duty doctrine

binds us.


          Urging abolition of the public duty doctrine, Gorman contends that it is incompatible
with the    legislature's abrogation   of   sovereign immunity. But our Supreme Court has already

rejected this contention. Chambers -Castanes v. King County, 100 Wn. d 275, 287 88, 669 P. d
                                                                   2            -        2
451 (   1983). Instead, our Supreme Court has repeatedly applied the public duty doctrine to
define the     duty   owed   by government     defendants in   negligence   actions.   Munich v. Skagit

Emergency Commc'ns Ctr.,175Wn.2d 871, 886 n. , 288 P. d 328 (2012) Chambers, J.,
                                           3        3              (

concurring and joined by a majority of the justices) l(isting 29 instances). We are bound to
follow our Supreme Court's precedents and have no authority to abolish them..1000 Virginia

Ltd. P'hip v. Vertecs Corp.,158 Wn. d 566, 590, 146 P. d 423 (2006).
      s                           2                  3




5
     Gorman proposes this argument as an alternative ground on which we may affirm the trial
court. See RAP 2. (
               a).
                5
6"
     Abrogation of the doctrine of sovereign immunity did not create duties where none existed
before.   It merely permitted suits against governmental entities that were previously immune
from suit."Chambers -Castanes, 100 Wn. d at 288 (emphasis in original). Gorman ignores the
                                     2
majority's opinion in Chambers -Castanes but quotes the separate concurring opinion of Justice
Utter,the only justice who would have rejected the public duty doctrine in that case.

7 Our Supreme Court has often described the public duty doctrine as a "focusing tool"used to
examine a fundamental element in any negligence action: whether the defendant owed a duty of
care to the plaintiff. Munich, 175 Wn.2d at 878. But the public duty doctrine is treated as a rule
of law. See Munich, 175 Wn. d at 877 88.
                          2          -
                                                      9
42502 5 II /42594 7 II
      - -         - -



          Gorman next urges us to apply, instead of the public duty doctrine, the four part test set
                                                                                       -

out in Evangelical United.Bretheren Church ofAdna v. State, 67 Wn. d 246, 255, 407 P. d 440
                                                                 2                  2

1966). But Gorman misapprehends the purpose of the Evangelical test, which recognizes
limited             for   governmental immunity flowing       from the   separation   of powers.   See 67
          grounds

Wn. d at 253 55. The Evangelical test determines whether a particular discretionary act is so
  2          -

rooted in governing that it cannot be tortious, no matter how "unwise, unpopular, mistaken, or

neglectful [ it]might     be."67 Wn. d at 253.
                                   2                   Thus, the Evangelical test prevents courts from

deciding whether the coordinate branches of government have made the wrong policies. King v.

City ofSeattle, 84 Wn. d 239, 246, 525 P. d 228 (1974),
                     2                  2             overruled on other grounds by City of
Seattle v. Blume, 134 Wn. d 243, 947 P. d 223 (1997).The Evangelical test is inapposite to the
                        2             2

issue here: whether Pierce County owed a legal duty to Gorman. Gorman's argument fails.
          B.     The Failure to Enforce Exception Applies

          The parties dispute only whether the failure to enforce exception to the public duty
doctrine applies in this case. We hold that it does.

          Under the failure to enforce exception, a government's obligation to the general public

becomes a legal duty owed to the plaintiff when (1)government agents who are responsible for
enforcing statutory requirements actually know of a statutory violation, ( )the government
                                                                         2

agents have a statutory duty to take corrective action but fail to do so, and (3)the plaintiff is
within the class the statute intended to protect. Bailey v. Town of Forks, 108 Wn. d 262, 268,
                                                                                 2

737 P. d 1257 (1987). The plaintiff has the burden to establish each element of the failure to
     2
8
  The Evangelical test asks whether (1)an allegedly tortious act necessarily involves a basic
governmental policy, program, or objective; 2) act is essential to implementing or achieving
                                            ( the
such a policy, program, or objective; 3) act requires the exercise of policymaking judgment
                                      ( the
                             constitution        law authorizes the   government   actor to do the act. 67
or   expertise; and (4) a                   or

Wn. d at 255.
  2
                                                       10
42502 5 II /42594 7 II
      - -         - -



enforce    exception,   and. the court must construe the   exception narrowly. Atherton Condo.

Apartment -Owners Ass'n Bd. of Dirs. v. Blume Dev. Co.,115 Wn. d 506, 531, 799 P. d 250
                                                             2                  2

1990).

          Contesting only the second element, Pierce County argues that it had no statutory duty to

take corrective action. Gorman contends that former PCC 6.7.created a duty to classify
                                                        010(
                                                           A
                                                           0 )

potentially dangerous dogs. We agree with Gorman.

          An ordinance creates a statutory duty to take corrective action if it mandates a specific

action when the ordinance is violated. Pierce v. Yakima County, 161 Wn. App. 791, 800, 251

P. d 270, review denied, 172 Wn. d 1017 (2011);
 3                             2              Donohoe v. State, 135 Wn. App. 824, 849,

142 P. d 654.(
     3      2006).Gorman argues that former PCC 6.7.creates a statutory duty
                                                010(
                                                   A
                                                   0 )

because the word " hall"expresses a mandatory directive. Br. of Resp't at 38.
                 s

          To determine whether the' ordinance is mandatory, we must apply the rules of statutory

interpretation to the ordinance. See City ofPuyallup v. Pac. Nw. Bell Tel. Co., Wn. d 443,
                                                                              98  2
448, 656 P. d 1035 ( 1982).
          2                        When interpreting a statute, our fundamental objective is to

ascertain and carry out the legislature's intent. Dep't    of Ecology   v.   Campbell & Gwinn, LLC,

146 Wn. d 1, 9 10,43 P. d 4 (2002).If the statute's meaning is plain, then we must give effect
      2        -      3

to that   plain meaning. Campbell & Gwinn, 146 Wn. d at 9 10. But if the statute has more than
                                                 2        -

one reasonable meaning, the statute is ambiguous and statutory construction is necessary.

Campbell & Gwinn, 146 Wn. d at 12.
                        2




9
  Pierce County does not argue that it took corrective action. Thus, if Pierce County had a duty
to take corrective action, it failed to perform the duty and the second element is satisfied.
                                                  11
42502 5 II /42594 7 II
      - -         - -



        A statute's plain meaning derives from all words the legislature has used in the statute
and related statutes.       Campbell &      Gwinn, 146 Wn. d
                                                         2            at   11 - 2.
                                                                              1      We may also consider

background facts that were presumably known to the legislature when enacting the statute.

Campbell & Gwinn, 146 Wn. d at 11.
                        2

        Here, former PCC 6.7.
                         010(
                            A provided:
                            0 )

               The County or the County's designee shall classify potentially dangerous
         dogs. The County or the County's designee may find and declare an animal
        potentially dangerous if an animal care and control officer has probable cause to
         believe that the animal falls within the definitions [ of " otentially dangerous
                                                                   p
         dog "   set forth in [PCC] 6.2.The finding must be based upon:
                                    010[
                                       T
                                       0 ]
                 1. The written complaint of a citizen who is willing to testify that the .
         animal has acted in a manner which causes it to fall within the definition of PCC]
                                                                                       [
         010[
         6.2. T or
              0 ];
                 2.Dog bite reports filed with the County or the County's designee; or
                 3. Actions of the dog witnessed by any animal control officer or law
         enforcement officer; or
                 4. Other substantial evidence.


Emphasis added.)

         Where a statute uses both " hall"and "may," presume that the clause using "shall"is
                                   s               we

mandatory and the clause using "may"is permissive. Scannell v. City of Seattle, 97 Wn.2d 701,
704, 48 P. d 435 (1982).Here, the ordinance mandated
   6     2                                                          some   actions ( shall ")and made others
                                                                                     "


discretionary ( may "). For
                "              instance, after inquiry, Pierce County had discretion to classify a dog

as   potentially dangerous.   Former PCC      6.7. The County ...
                                              010(
                                                 A
                                                 0 ) ( "                             may find and declare an


10 Former PCC 6.2.
              010(
                 T defined a " otentially Dangerous Dog"as
                 0 )         P

         any dog that when unprovoked: a)Inflicts bites on a human, domestic animal, or
                                       (
         livestock ... (   b)chases   or   approaches    a   person ...    in a menacing fashion or
         apparent attitude of attack, or (c) dog with a known propensity, tendency, or
                                            any
         disposition to attack unprovoked or to cause injury or otherwise to threaten the
         safety of humans, domestic animal, or livestock ....

11 The ordinance actually cites former PCC 6.2.2007), that subsection defined
                                           010(
                                              Q
                                              0 ) ( but
livestock."
                                                        12
42502 5 II /42594 7 II
      - -         - -



animal    potentially dangerous .... ") (   emphasis added). But, if the county received reports of a

potentially dangerous dog, it had a duty to apply the classification process to that dog. Former
PCC   6.7. The County . . .
      010(
         A
         0 ) ( "                              shall   classify potentially dangerous dogs. ") emphasis
                                                                                              (

added). The legislature's use of " hall"was a clear directive to apply the classification process
                                 s

to dogs that were likely potentially dangerous. Although the county had discretion to classify or

not classify any particular dog as potentially dangerous, it had a duty to at least apply the

classification process to any apparently valid report of a dangerous dog. The county had a duty
      12
to act.


          Division One has held that the failure to enforce exception applies in comparable

circumstances. Livingston v. City ofEverett, 50 Wn. App. 655, 659, 751 P. d 1199 (1988).In
                                                                        2

Livingston, the city animal control department had received numerous complaints about three

dogs running loose and behaving aggressively. 50 Wn. App. at 657. Animal control eventually

impounded the dogs but released them to their owner the next day. Livingston, 50 Wn. App. at

657. A few weeks later, the dogs attacked a young boy. Livingston, 50 Wn. App. at 657. The

Everett municipal code provided that animals in violation of the code may be impounded and

that impounded animals shall be released to their owners only if the animal control officer

determines that the animal is not dangerous. Livingston, 50 Wn. App. at 658. The officer never

evaluated the dogs' dangerousness but released them to their owner anyway. Livingston, 50 Wn.

App. at 657. The officer violated his statutory duty to exercise his discretion by evaluating the

dogs' dangerousness before releasing them. Livingston, 50 Wn. App. at 659. Accordingly, the

failure to enforce exception applied and the city could be found liable for injuries the dogs


12 The dissent reads the ordinance as a whole to be discretionary, while our view is that certain
provisions are mandatory and others discretionary.
                                                       13
42502 5 II /42594 7 II
      - -         - -



caused after their release. Livingston, 50 Wn. App. at 659.         Similarly, here, Pierce County

received multiple complaints about Wilson's dogs but failed to evaluate the dogs' dangerousness

despite a statute requiring it to act.

        Pierce County argues that this case is similar to Pierce, 161 Wn. App. 791. In Pierce,

Division Three held that the county did not have a mandatory duty to act despite the presence of

shall"in a county code provision. 161 Wn.App. at 801. There,the plaintiff sued the county for
negligently inspecting his gas line after he was injured in a gas explosion. Pierce, 161 Wn.App.

at 796. He argued that the following code provision imposed a mandatory duty on the county:

        T] e building official . . .
         h                               shall make or cause to be made any necessary
        inspections and shall either approve the portion of the construction as completed
        or shall notify the permit holder wherein the same fails to comply with this code.
                                                                                  In
Pierce, 161 Wn. App. at 799 (quoting Internal Residential Code (IRC) §R109.
                                                                          1 2006)).
                                                                            (


response, Yakima County cited other code provisions providing that, when an official observes a
code violation, he has authority to authorize disconnection or serve a notice of violation. Pierce,
161 Wn. App. at 799 (citing IRC §§       R111.3, 2).
                                               R113. Division Three held that the code did not

create a mandatory duty to take a specific enforcement action. Pierce, 161 Wn. App. at 801. If
officials observed a code violation, they had authority but were not requiredto authorize
                                                        —                    —

disconnection or serve notices of violation. Pierce, 161 Wn. App. at 799.

        This case is distinguishable from Pierce. Unlike in Pierce, the county here is required to
act if it observes    a   violation of the   potentially dangerous dog restrictions. In Pierce, the

ordinances only required Yakima County officials to make inspections and issue approvals or
denials. The ordinances did not require the county to take any enforcement action. Here, while

 some of the steps in the process are discretionary, the code did require Pierce County to take
 action if certain conditions existed.       If the county was made aware of a likely potentially
                                                    14
42502 5 II /42594 7 II
      - -         - -




dangerous dog, it had a duty to evaluate the dog to determine if it was potentially dangerous.

Then, if the dog was declared potentially dangerous, the code mandated that the county take

corrective action, seizing and impounding any dog whose owner allowed it to violate the

restrictions placed upon it. Former PCC 6.7.2007) any potentially dangerous dog which
                                        040 (
                                         0        ("
is in violation of ...   this Code or restrictions imposed as part of a declaration as a potentially

dangerous dog, shall     be seized and   impounded "). The Pierce case is not helpful where, as here,

some mandatory duties exist.

        We agree with Gorman and the trial court and hold that the failure to enforce exception

applies here.

II.     JURY INSTRUCTIONS ON PIERCE COUNTY'S DUTY TO GORMAN

        Pierce County also argues that the trial court's instruction 5 misstated the law by stating

the county had a legal duty to protect the public and a legal duty to confiscate and confine Betty.

We hold that this argument misrepresents instruction 5 and that the jury instructions were
        l3
proper.




13 In addition, Pierce County argues that jury instructions erroneously stated that ( ) also had a
                                                                                    1 it
legal duty to "control" a potentially dangerous dog and (2)Gorman could carry her burden to
prove Pierce County's liability by showing that her injury was proximately caused by Pierce
County's negligence "and or the fault of the [dog owners]." of Appellant at 32, 35. But
                             /                                       Br.
Gorman asserts that Pierce County did not preserve these arguments for appeal. We agree with
Gorman. Pierce County concedes its failure to object to this portion of the duty of care
instruction, and it does not contest its asserted failure to object to the burden of proof instruction.
Without adequate objections at trial,the arguments are waived. See RAP 2. (    a); v. State,
                                                                                  5 Stewart
92 Wn. d 285, 298 99,597 P. d 101 (1979).
     2            -       2
                                                     15
42502 5 II /42594 7 II
      - -         - -



       We review claimed errors of law in jury instructions de novo. Hue v. Farmboy Spray
Co.,127 Wn. d 67, 92, 896 P. d 682 (1995).Jury instructions are not erroneous if they allow
          2                2

the parties to argue their theories of the case, they do not mislead the jury, and, when read as a

whole, they properly state the applicable law. Keller v. City ofSpokane, 146 Wn. d 237, 249, 44
                                                                               2
P. d 845 (2002)quoting Bodin v. City ofStanwood, 130 Wn. d 726, 732, 927 P. d 240 (1996)).
 3              (                                      2                  2

Read as a whole,the jury instructions here properly state the applicable law.
       Instruction 5 stated that it was " erely a summary of the claims of the parties."Clerk's
                                        m

Papers (CP)at 882. The instruction summarized Gorman's negligence claim as follows:

                The plaintiff Slue Gorman claims that the defendant Pierce County was
       negligent in one or more of the following respects:
       1)failing to classify and control a potentially dangerous dog;
       2)failing to protect the public from a potentially dangerous dog;
       3)failing to confiscate and confine a potentially dangerous dog.

CP at 881. On its face, this instruction describes the claims Gorman presented during the trial,

not Pierce County's legal duty. But other instructions correctly explained Pierce County's legal

duty. Instruction 15 included the language from former PCC 6.7.
                                                           010(
                                                              A
                                                              0 ):

              The County or the County's designee shall classify potentially dangerous
        dogs. The County or the County's designee may find and declare an animal
       potentially dangerous if an animal care and control office [sic]has probable cause
        to believe that the animal falls within the definitions [of potentially dangerous
                                                                    "
        dog "] set forth in [ CC] 6.2.The finding must be based upon:
                            P     010[(
                                     T)].
                                     0
                1. The written complaint of a citizen who is willing to testify that the
        animal has acted in a manner which causes it to fall within the definition of PCC]
                                                                                      [
        010[(
        6.2.   T)];
               0       or
                2.Dog bite reports filed with the County or County's designee; or
                3. Actions of the dog witnessed by any animal control officer or law
        enforcement officer; or
               4. Other substantial evidence.


14 Gorman asserts that the standard of review is whether the trial court's decision is manifestly
unreasonable or based on untenable reasons or grounds. This assertion is incorrect. That
standard applies when the appellant assigns error to the trial court's choices about the number of
instructions to give or the particular words to use. Hue, 127 Wn. d at 92 n.3.
                                                                2          2
                                                16
42502 5 II /42594 7 II
      - -         - -




CP at 892. Instruction 17 stated,

                 The Pierce County Code provides that after a dog is declared to be
       potentially dangerous, the person owning or having care of such dog shall not
       allow the dog to be unconfined on the premises of such person, or go beyond the
       premises of such person unless the dog is securely leashed and humanely muzzled
       or otherwise securely restrained.
                 A potentially dangerous dog in violation of these provisions shall be
       seized and impounded.

CP at 894.


       In defining negligence, instruction 6 also defined the duty of ordinary care:

              Negligence is the failure to exercise ordinary care. It is the doing of some
       act that a reasonably careful person would not do under the same or similar
       circumstances or the failure to do some act that a reasonably careful person would
       have done under the same or similar circumstances.
                 Ordinary care means the care a reasonably careful person would exercise
       under the same or similar circumstances.


CP at 883. In addition, the trial court clearly instructed the jury that Pierce County was liable

only if it had been negligent by failing to act in one of the ways Gorman claimed. Thus, the

instructions required the jury not just to decide whether Pierce County failed to act, but whether
the failure    was   reasonable under the circumstances.    Accordingly, we hold that the jury

instructions properly stated the legal duty of ordinary care.

III.   EVIDENCE OF PRIOR COMPLAINTS ABOUT WILSON'S OTHER DOGS

        Pierce County next argues that the trial court admitted evidence of prior complaints about

Wilson's dogs other than Betty, even though this evidence was irrelevant and unfairly

prejudicial. We disagree.

        In general, we review a trial court's ruling on the admissibility of evidence to determine
if its decision was manifestly unreasonable, exercised on untenable grounds, or based on
untenable     reasons.   Washburn v. Beatt Equip. Co.,120 Wn. d 246, 283, 840 P. d 860 (1992);
                                                            2                  2
                                                 17
42502 5 II /42594 7 II
      - -         - -




Wilson v. Horsley, 137 Wn. d 500, 505, 974 P. d 316 (1999).A trial court may admit evidence
                         2                  2

only   if it is relevant.   ER 402.    Relevant evidence has any tendency to make a fact of

consequence more likely or less likely; this definition sets a low threshold. ER 401; Kappleman
                                                                   -
V.   Lutz, 167 Wn. d 1, 9, 217 P. d 286 (2009). However, a trial court may exclude relevant
                 2              3


evidence if the risk of unfair prejudice, confusion of the issues, misleading the jury, or waste of

time substantially outweighs its probative value. ER 403.

         The evidence here became admissible only after Pierce County opened the door to it.

Before trial, the trial court permitted Gorman to elicit testimony that the county had received 10

complaints about Wilson's other dogs, but the trial court prohibited testimony about the reasons

for those complaints. The trial court explained that the probative value was outweighed by the

risks that (1)mini -
                   trials on the veracity of each complaint would waste time and (2) details of
                                                                                   the

incidents involving other dogs would unfairly prejudice Pierce County.

         But while questioning a county animal control officer, counsel for Pierce County asked

why the prior complaints had not led the county to pursue a declaration of potential
dangerousness.     The officer explained that the prior complaints primarily concerned dogs off

leash or excessive barking, but "[ hey were not all dogs chasing individuals or anything of that
                                t]
nature." RP (Aug. 3, 2011) at 990.          Counsel then elicited testimony that "a history of a dog

owner who had previous complaints of leash law violations" would not support a declaration of

potential dangerousness. RP (Aug. 3, 2011) at 991. The trial court ruled that this questioning
opened the door to evidence rebutting the suggestion that the prior complaints did not involve
dangerous dog behavior,      but it still   prohibited questioning   about the details.   Accordingly,

Gorman elicited testimony from the same witness that three of the prior complaints involved

attempted attacks.
                                                    18
42502 5 II /42594 7 II
      - -         - -



       The trial court did not err by admitting this testimony. The evidence was relevant to the

county's knowledge that at least one of Wilson's dogs posed a risk. See ER 401. And the trial

court's refusal to allow questioning on the details reduced the effect of any unfair prejudice,

while admitting evidence that was probative of the reasonableness of the county's explanation

for declining to pursue a potentially dangerous dog declaration. See ER 403. Accordingly, this

argument fails.

IV.    GORMAN's LEGAL DUTY


       In her cross appeal, Gorman argues that the trial court erred by denying her renewed

motion for judgment as a matter of law, which sought to set aside the jury's finding of
contributory fault on the ground that Gorman owed no legal duty. Evans -Hubbard asserts that

Gorman waived this argument by failing to make it in her original motion for judgment as a

matter of law. We agree with Evans -Hubbard.

       We will not consider an appeal from a trial court's denial of a CR 50 motion for

judgment as a matter of law unless the appellant has renewed the motion after the verdict.
Washburn v. City ofFederal Way, 169 Wn. App. 588, 592, 283 P. d 567 (2012),
                                                            3             review granted,

176 Wn. d 1010 (2013); CR 50( ). preserve the opportunity to renew a CR 50 motion
      2              see    b To

after the verdict, a party must move for judgment as a matter of law before the trial court submits

the case to the jury. Hanks v. Grace, 167 Wn. App. 542, 552 53,273 P. d 1029, review denied,
                                                            -       3

175 Wn. d 1017 (2012); CR 50( ).
      2              see    a

       On the issue of her own comparative fault, Gorman asserted in her original CR 50 motion

that she bore no fault because the evidence was insufficient to show that leaving the door open

was a breach of her legal duty. For the first time in her renewed motion, Gorman argued that, as

a matter of law, she had no legal duty to close the door. This argument is not proper because a
                                                19
42502 5 II /42594 7 II
      - -         - -



renewed CR 50 motion cannot present new legal theories that were not argued before the verdict.

Hill v. BCTI Income FundI, Wn. d 172, 193 n.0, 23 P. d 440 (2001),
                        - 144 2            2       3             overruled on other

grounds by McClarty v. Totem Elec.,157 Wn. d 214, 137 P. d 844 (2006);
                                         2             3             Browne v. Cassidy,
46 Wn. App. 267, 269, 728 P. d 1388 (1986).Gorman did not preserve her argument for appeal,
                           2
so it fails.


V.      EMERGENCY DOCTRINE INSTRUCTION


        Gorman next argues that the trial court erred by declining to instruct the jury on the

emergency doctrine.      We disagree because Gorman failed to preserve any challenge to the

omission of this instruction.


        To challenge the trial court's failure to give a jury instruction, an appellant must have

proposed the instruction in the trial court. McGarvey v. City ofSeattle, 62 Wn. d 524, 533, 384
                                                                              2
P. d 127 (1963). In
 2                     general, a party requesting an instruction that appears in the Washington
Pattern Instructions   must propose      the instruction in   writing.   CR 51( )(
                                                                            1);
                                                                              d Balandzich v.

Demeroto, 10 Wn. App. 718, 722, 519 P. d 994 (1974). However, a party may request a
                                     2


Washington Pattern Instruction simply by referring to the instruction's published number if the

superior court has adopted a local rule permitting that procedure. CR 51( )(
                                                                      3).
                                                                        d

         Gorman's request for the emergency doctrine instruction did not comply with CR 51( ).
                                                                                          d

She did not propose the instruction in writing. See CP at 810 37, 1416 26. Instead, she orally
                                                              -        -
requested 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 12. 2,
                                                                               0
at 142 (5th ed. 2005), pattern emergency doctrine instruction, and she took exception to the
                     the
trial court's refusal to give it. But Gorman has not identified any applicable local rule allowing
her   request by reference   to the   published   number.   Therefore, Gorman failed to propose the

instruction in a manner consistent with CR 51( ).
                                             d
                                                    20
42502 5 II /42594 7 II
      - -         - -



VI.    SUFFICIENCY OF THE EVIDENCE


       Lastly, Gorman argues that the evidence was insufficient to support the jury's verdict that

1)she breached her duty and (2)her negligence was a proximate cause of her injury. Br. of
Resp't at 64 72. We disagree.
             -

       We cannot substitute our judgment for that of the jury. Burnside v. Simpson Paper Co.,

123 Wn. d 93, 108, 864 P. d 937 (1994) quoting State v. O'onnell, 83 Wn. d 797, 839, 523
      2                 2              (                 C             2

                 Accordingly,
P. d 872 ( 1974)).
 2                                      we cannot overturn the jury's verdict unless it is clearly

unsupported by substantial evidence, i..,evidence that, if believed, would support the verdict.
                                      e

Burnside, 123 Wn. d at 107 08 (
                2          - quoting O'onnell, 83 Wn. d at 839).When reviewing a jury
                                      C             2

verdict for substantial evidence, we must consider all evidence and draw all reasonable

inferences in the light most favorable to the verdict. Ketchum v. Wood, 73 Wn. d 335, 336, 438
                                                                             2

P. d 596 (1968).
 2

       In order to prove contributory negligence, the defendant must show that the plaintiff had

a duty to exercise reasonable care for her own safety, that she failed to exercise such care, and
that this failure is a cause of her injuries. Alston v. Blythe, 88 Wn. App. 26, 32 n. ,943 P. d 692
                                                                                    8       2

1997). Contributory negligence is usually a factual question for the jury. Jaeger v. Cleaver

Constr.,Inc., Wn. App. 698, 713, 201 P. d 1028 (2009).
            148                       3

       Substantial evidence supports the jury's finding that Gorman breached her duty by failing

to exercise the    care   a   reasonable person would exercise under the circumstances.   Although

Gorman believed Betty was an aggressive and vicious dog and Gorman knew that Betty and

Tank had previously entered her home through the open door, Gorman testified that she left the

door open on the night of her attack. Pierce County also claimed that Gorman unreasonably
chose to   save   Romeo rather than flee for her    own   safety. Because Gorman testified that she
                                                   21
42502 5 II /42594 7 II
      - -         - -




indeed tried to save Romeo, there was sufficient evidence for the jury to consider whether this

decision was reasonable.


        Substantial evidence also supports the jury's finding that Gorman's conduct was a

proximate cause of her injuries. Gorman testified that the pit bulls entered her house through the

open door on the night of her attack. Gorman also testified that while trying to rescue Romeo,

she suffered further injuries to her hands and wrists. Therefore substantial evidence supports the

jury's verdict on contributory fault.

        Although we are sympathetic to Gorman's argument that she did not owe a legal duty to

close her door, as we discussed above, she did not preserve this argument for appeal. Nor does

she make a supported argument on appeal that the trial court erred by instructing the jury on

contributory negligence. Therefore, any contributory negligence instructions became the law of
the case. See Washburn, 169 Wn. App. at 605 (stating that the failure to appeal an allegedly

erroneous instruction makes that instruction the law of the case). Again, we cannot substitute

our judgment for the jury's. Because contributory negligence became the law of the case and

because the facts support the jury's finding of contributory negligence, Gorman's argument fails.
        Affirmed.




I concur:




        Van Deren, J.



                                                22
42502 5 II /42594 7 II
      - -         - -




        WORSWICK, C. .dissenting in part) — concur with the majority's analysis in sections II
                   J (                     I

through VI regarding jury instructions on Pierce County's duty, evidence of prior complaints,
denial of Sue Ann Gorman's motion for judgment as a matter of law,the emergency doctrine

instruction, and sufficiency of the evidence. But because the majority misconstrues the county

ordinance and misapplies the public duty doctrine, I respectfully dissent from the majority's

conclusion in section I. that the failure to enforce exception to the public duty doctrine applies
                       B

here.


        When a governmental entity is sued for negligence, courts employ the public duty

doctrine to determine whether a duty is owed to the general public or whether that duty is owed

to a particular individual. Munich v. Skagit Emergency Commc'ns Ctr., Wn. d 871, 878,
                                                                    175 2

288 P. d 328 (2012).A duty owed to the general public is not an actionable legal duty in a
     3

negligence suit. Bailey v. Town ofForks, 108 Wn. d 262, 266, 737 P. d 1257 (1987).But the
                                               2                  2

public duty doctrine is subject to several exceptions, including the failure to enforce exception.

Bailey, 108 Wn. d at 268.
              2

        For the failure to enforce exception to apply, the plaintiff must prove, inter alia,that

government agents have a statutory duty to take corrective action. Atherton Condo. Apartment -

Owners Ass'n Bd. ofDirs. v. Blume Dev. Co., Wn. d 506, 531, 799 P. d 250 (1990).Thus,
                                          115 2                  2

the failure to enforce exception " pplies only where there is a mandatory duty to take a specific
                                 a

action to correct a known statutory violation."Donohoe v. State, 135 Wn. App. 824, 849, 142

P. d 654 (2006).But no such duty exists if the statute confers broad discretion about whether
 3

and how to act. Donohoe, 135 Wn. App. at 849. In addition, we must construe the failure to

enforce exception narrowly. Atherton, 115 Wn. d at 531.
                                            2


                                                  23
42502 5 II /42594 7 II
      - -         - -




        Here I disagree with the majority's conclusion that former Pierce County Code (PCC)

010(
6.7. (created a statutory duty to take the corrective action of classifying potentially
   A 2007)
   0 )

dangerous dogs. The majority reaches this conclusion after (1)misinterpreting the ordinance and

2)misapplying case law on the failure to enforce exception. In my view,the failure to enforce

exception does not apply because the ordinance did not mandate action by the county.

        1. Interpretation of the Ordinance

        First,the majority misinterprets the plain meaning of the ordinance and incorrectly

concludes that it expresses a mandatory directive. Here, former PCC 6.7.
                                                                    010(
                                                                       A provided:
                                                                       0 )

        The County or the County's designee shall classify potentially dangerous dogs.
        The County or the County's designee may find and declare an animal potentially
        dangerous if an animal care and control officer has probable cause to believe that
        the animal falls within the definitions [
                                                of   potentially dangerous dog "]
                                                     "                              set forth in
        former PCC] 6.2.The finding must be based upon:
                    010[(
                       T)
                       0
        1. The written complaint of a citizen who is willing to testify that the animal has
             acted in a manner which causes it to fall within the definition of [PCC]
             010[(
             6.2.   T)];
                    0     or
        2. Dog bite reports filed with the County or the County's designee; or
        3. Actions of the dog witnessed by any animal control officer or law enforcement
             officer; or
        4. Other substantial evidence.


        The majority correctly states the rules of plain meaning analysis. A statute's plain

meaning derives from all words the legislature has used in the statute and related statutes. Dep't

of Ecology   v.   Campbell & Gwinn, L. . Wn. d 1, 11- 2,P. d 4 (2002).We may also
                                    C., 2
                                     L 146        43 3
                                                    1

consider background facts that were presumably known to the legislature when enacting the

statute.   Campbell & Gwinn, 146 Wn. d at 11. Where, as here, a statute uses both " hall"and
                                   2                                              s



is
     Apparently in error, former PCC 6.7.
                                     010(
                                        A cited
                                        0 ) former PCC 6.2. ( The
                                                       010(
                                                          Q 2007).
                                                          0 )
current version of PCC 6.7.
                       010(
                          A cites
                          0 ) the definition of potentially dangerous animal"in
                                                "
PCC 6.2.
    010(
       X
       0 ).

                                                 24
42502 5 II /42594 7 II
      - -         - -



may," presume that the clause using " hall"is mandatory and the clause using " ay"is
    we                              s                                        m

permissive. Scannell v. City ofSeattle, 97 Wn. d 701, 704, 648 P. d 435 (1982).
                                             2                  2

       But the majority's plain meaning analysis misapplies these rules. The majority appears to

rely solely on the word " hall"to conclude that the ordinance " as a clear directive to apply the
                        s                                     w
                                                                              16
classification process to   dogs   that   were   likely potentially dangerous." Majority at 13. But a .

plain meaning analysis requires us to consider " ll that the Legislature has said in the statute."
                                               a

Campbell & Gwinn, 146 Wn. d at 11 (emphasis added).
                        2

       Read in its entirety with each word placed in context, the ordinance clearly authorized—

but did not require the county or its designee to classify potentially dangerous dogs. Former
                    —

PCC 6.7.The ordinance stated that, when competent evidence supports a finding of
    010(
       A
       0 ).

probable cause to believe that a particular dog is a potentially dangerous dog, the county " ay
                                                                                           m

find and declare"the dog to be potentially dangerous. Former PCC 6.7.
                                                                 010(
                                                                    A emphasis
                                                                    0 ) (

added).But— the majority concedesthe ordinance did not require the county to make a
          as                      —

declaration; it gave the county discretion to do so. Accordingly, the ordinance did not mandate a

specific action to correct a known statutory violation.

        2. Application of Case Law

        I also disagree with the majority's application of case law on the failure to enforce

exception.




16 In the majority's interpretation, the ordinance (1)requires the county to conduct an " nquiry"
                                                                                        i
whenever it receives an "apparently valid report"that a dog is likely potentially dangerous, but
2) gives the county discretion, after completing the inquiry,to classify a particular dog as
potentially dangerous. Majority at 12 13. Because the ordinance says nothing about inquiries
                                       -
into reports of potentially dangerous dogs, I believe the majority's inquiry requirement derives
from a misinterpretation of the ordinance's plain meaning.
                                                         25
42502 5 II /42594 7 II
      - -         - -




       First, the majority misplaces its reliance on Livingston v. City ofEverett, 50 Wn. App.

655, 751 P. d 1199 (1988).In Livingston,the failure to enforce exception applied because the
          2

city violated a local law governing the release of impounded dogs to their owner. 50 Wn. App.
at 658 59. There, the local law stated: Any impounded animal shall be released to the owner
       -                                "

    if,in the judgment of the animal control officer in charge, such animal is not dangerous or

unhealthy. "'   50 Wn. App. at 658 (quoting former Everett   Municipal   Code §   1))
                                                                                  140(
                                                                                  6.4.
                                                                                     E)(
                                                                                     0

emphasis added).Because an animal control officer released impounded dogs without judging

their dangerousness or health, the court held that the officer failed to exercise his discretion as

the law required. 50 Wn. App. at 657, 659.

       The ordinance here is so different that this case is not comparable to Livingston. In

Livingston, when a dog owner sought the release of his dog from the pound,the city law

mandated that the city determine the dog to be neither dangerous nor unhealthy. 50 Wn. App. at

658. In contrast, Pierce County's ordinance articulated no circumstances under which the county

must determine whether a dog is potentially dangerous. See former PCC 6.7.And,
                                                                      010(
                                                                         A
                                                                         0 ).

even if a particular dog meets the definition of a potentially dangerous dog, the ordinance's use

of the word " ay"clearly gave the county broad discretion to declare or not to declare the dog
            m

potentially dangerous.   Former PCC    6.7. The County ... may find and declare an
                                       010(
                                          A
                                          0 ) ( "

animal potentially dangerous"when competent evidence establishes probable cause to believe

the animal is a potentially dangerous dog under former PCC 6.2.Livingston is
                                                           010(
                                                              T
                                                              0 )).

inapposite.

        Further, the majority emphasizes that this case and Livingston are similar because both

involve dogs that were the subject of multiple complaints. But the existence of multiple

complaints is irrelevant to the failure to enforce exception: if the statutory language truly is
                                                  NAR
42502 5 II /42594 7 II
      - -         - -



mandatory, then a single failure to take required action will violate the government's duty to

enforce the statute. See Bailey, 108 Wri. d at 269 (police officer failed a single time to detain a
                                        2

person who appeared in public to be incapacitated by alcohol);
                                                             Campbell v. City ofBellevue, 85

Wn. d 1, 5, 530 P. d 234 (1975)electrical inspector failed a single time to "mmediately sever"
  2              2              (                                           i

an electrical system after observing that it did not comply with city code);
                                                                           Livingston, 50 Wn.

App. at 659 (animal control officer failed a single time to determine whether an impounded dog

was dangerous or unhealthy before releasing the dog; multiple complaints about the dog had no

bearing on the failure to enforce exception).By appearing to base its decision on the county's

repeated failures to take a discretionary action, the majority muddles the failure to enforce

exception.

       For her own part, Gorman relies on King v. Hutson, 97 Wn.App. 590, 987 P. d 655
                                                                               2

1999), that case is also unavailing. In King, a state law required the county to immediately
     but

confiscate any   dangerous dog that had bitten   a   person   or   another animal.17   97 Wn. App. at 595.

Based on the record, a jury could have found that the dog in King became a " angerous dog"
                                                                           d

under state law when it attacked a neighbor. 97 Wn. App. at 596. The neighbor reported the

attack to the police and prosecutor, but the prosecutor merely called the owner and advised that

he could be arrested if he had committed a criminal act. 97 Wn. App. at 593. Over one month

later, a police officer visited the owner and asked him to turn over the dog to be destroyed, but

the owner refused and the officer took no further action. 97 Wn. App. at 593. The court in King

held that the county's failure to enforce the state law exposed it to liability for any injury

occurring as a result of its failure to confiscate a dangerous dog after the attack. 97 Wn.App. at


17 State law governs "dangerous dogs," it also directs municipalities and counties to regulate
                                     but
potentially dangerous dogs."RCW 16. 8. 2).
                                070(
                                   2 090(
                                   0 ), .

                                                     27
42502 5 II /42594 7 1I
      - -         - -



596. However,the county was not liable for the injuries the neighbor suffered during the attack,

because the dog had not yet become a dangerous dog and therefore the state law imposed no

mandatory duty on the county at that time. 97 Wn. App. at 595.

       The situation here is similar to that before the attack in King. Because the two dogs here

were not classified as potentially dangerous dogs, Pierce County had no mandatory duty.

Accordingly,the failure to enforce exception does not apply and the county is not liable for

injuries Gorman suffered during the attack.

       For similar reasons, the majority fails to convincingly distinguish this case from Pierce v.

Yakima County, 161 Wn.App. 791, 799 801,251 P. d 270, review denied, 172 Wn. d 1017
                                    -        3                             2

2011), case in which a statute repeatedly used the word " hall"to confer authority and grant
     a                                                  s

discretion, without creating a mandatory enforcement duty. The majority states that the county

was required to seize and impound "`
                                  any potentially dangerous dog which is in violation of ...

chapter 6.7 PCC] or restrictions imposed as part of a declaration as a potentially dangerous
         0

dog. "' Majority at 15 (quoting former PCC 6.7.2007)). this requirement applied only
                                           040 (
                                            0       But

to dogs that have been declared potentially dangerous. Former PCC 6.7. Because the two
                                                                  040.
                                                                    0

dogs here were never declared potentially dangerous dogs, they did not " iolate"restrictions
                                                                       v

applicable to potentially dangerous dogs. Therefore the county never had the authoritylet
                                                                                       —

alone a mandatory dutyto seize and impound the two dogs here under former PCC 6.7.
                      —                                                       040.
                                                                               0

       Finding otherwise, the majority accepts Gorman's contention that ( ) county should
                                                                        1 the

have declared Betty a potentially dangerous dog and (2)Betty violated restrictions that would

have applied ifthe county had declared Betty a potentially dangerous dog. But this is a

hypothetical, not actual, violation. Because former PCC 6.7.was never violated, I would
                                                        040
                                                          0
hold that Gorman's contention fails.

                                                28
42502 5 II /42594 7 II
      - -         - -



       Considering the plain meaning of former PCC 6.7. controlling law on the
                                                   010(
                                                      A and
                                                      0 )

public duty doctrine, I am convinced that the failure to enforce exception does not apply here.

Therefore I would reverse and remand with instructions to dismiss the county as a defendant.




                                                29
