WEST VIRGINIA -- Are the Monroe County Commission and a dog warden responsible for a man who died from injuries sustained from a dog attack or does West Virginia law grant them immunity from the suit's allegations?
This is one of the questions presented Sept. 4 before the West Virginia Supreme Court in a case appealed from Monroe County Circuit Court.
Dreama Bowden filed the suit as administratrix of the estate of her husband, Lowell Bowden, against Justin Blankenship, Kim Blankenship, Anna Hughes, Mose Christian, Monroe County Commission, Patricia Green and American Modern Home Insurance Company.
In the brief to the state's highest court, Bowden said she, her husband and their neighbors called the county about the neighbor's "vicious" dogs.
Bowden said Green, the dog warden, visited the dogs' owners and told Bowden she would take care of the problem. The brief also asserts Green issued a citation to the owners.
This sent Bowden's husband into a "false sense of security," the brief continues to assert, and while taking his daily walk, he was "viciously attacked by several American Pit Bull Terrier dogs" running loose in the neighborhood.
"Mr. Bowden was maimed beyond recognition and maintained no recognizable facial features as a result of the vicious attack by the pit bulls," the brief asserts.
Travis Griffith, who represented Bowden in the Sept. 4 oral argument hearing, said Bowden's husband died seven days later as a result of his injuries.
Bowden filed a complaint saying the commission and Green were negligent in failing to impose and collect taxes on the pit bulls and for wrongful death.
The complaint also asserted Green failed to patrol the county and seize dogs not wearing a valid registration tag.
The lower court dismissed the case for failure to state a claim upon which relief can be granted.
In their brief to the court, the Monroe County Commission and other defendants say the court was right to dismiss and to find defendants were immune because of the West Virginia Governmental Tort Claims and Insurance Reform Act and the Public Duty Doctrine.
The commission's brief states Green was immune to claims against her in an individual capacity because she is a county commission employee and the allegations relate to her job.
The brief also asserted the commission and Green's immunity because of the Public Duty Doctrine, saying Bowden didn't set forth a special relationship that would be needed to prove an exception.
The brief also addressed Bowden's motion for leave file, which would have added negligence claims, asserting it would have prejudiced the respondents.
The motion sought to add negligent liability of Monroe County Commission and Green and negligence liability of Monroe County Commission alleging a failure to impose and collect property tax revenues on the dogs, allowing co-defendants to keep the vicious dogs and not impounding the dogs running loose without registration tags.
In her brief, Bowden said the West Virginia Governmental Tort Claims Act provides a remedy to people injured by negligence, asserting her complaint had made sufficient negligence allegations.
Griffith argued there was a special relationship because Bowden and her neighbors contacted Green about the dogs and she personally was told the situation was handled.
"Without this false sense of security, it is arguable, if not likely, that the decedent would have ceased his evening walks after dinner altogether," the brief states.
She said her complaint's allegations were enough to prove Green's willful and wanton acts and should have survived dismissal.
Wendy Greve, who represented the commission and Green said the negligence charges sought to be added were futile and there was no argument that a special relationship existed. Greve also said there were no facts to support Green acted willfully or wantonly.
(State Journal - Sept 5, 2013)
Even if the higher court rules against the appellants in this case, it is way past time people started suing animal control and other governmental entities for failing to control vicious dogs.
ReplyDeleteThe sad fact is that 99.99% of animal control officers aren't worth a tinker's curse, because most of them are confirmed dog freaks and pit nutters, who erroneously believe their job is to protect dogs instead of protecting the public. The operative word in "animal control" is CONTROL, as in pest CONTROL. Animal control departments were created to protect people, property and livestock animals from marauding dogs. But instead, animal control officers spend their time "protecting" DOGS, caring for DOGS, "evaluating" dangerous DOGS and encouraging people to adopt DOGS. It's high time local city/county governments did away with animal control and replaced it with good, old-fashioned dog catchers -- people dedicated to protecting human beings by picking up, confiscating and putting down dangerous dogs!
I can't wait until someone badly injured by a pit bull, or the family of a person killed by a pit bull, in one of those states in which breed-specific legislation is prohibited, sues the state government. Our elected officials need to concentrate more on protecting the public and less on protecting dangerous dogs!