City fails to enforce Animal Control Ordinance
In February, 2007, a personal injury Complaint was filed against Animal Control and the City of Evansville (City Defendants) for personal injuries when minor plaintiff, Shawn Davis, was attacked and severely bitten by a 60-pound Rottweiler while playing in his neighborhood. Six-year-old Shawn Davis sustained severe injuries to his arm and back.
The Complaint alleged the City Defendants failed to protect young Davis by not enforcing its Animal Control Ordinance. A witness to the incident claimed in her testimony that she had called Animal Control several times during the week before the incident to report a very vicious dog running the neighborhood. This dog was known to the witness as ‘Romeo’, a dog she had seen dropped off and picked up from the corner house repeatedly for several weeks prior to the incident. Six months prior to Davis’ injury, Animal Control had received a report of a Rottweiler named Romeo biting a child.
Lower court finds city was entitled to immunity in case involving dog bite injuries
The lower Court found that the defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act. The Indiana Tort Claims Act (ITCA) provides immunity to governmental entities for loss resulting from failure to enforce a ‘law’ [writer’s emphasis]
Court of Appeals determined city failed to declare dog dangerous
The Court of Appeals overturned the lower court’s decision based upon their memorandum which stated that it was the City Defendant’s failure to follow their own ‘procedures’ [writer’s emphasis] that is the issue here. The Court of Appeals inferred in Davis’ favor that City Defendants had received notice of this dog and had knowledge of the dog’s history involving an earlier biting incident; the City Defendants had failed to follow the City’s own procedures to declare the dog ‘dangerous’. The divided Court of Appeals ruled that City Defendants were not entitled to either statutory law enforcement immunity or common law immunity.
The dissenting Appellate decision written by Judge Kirsch made the point that the procedures for determining the danger of an animal and the seizing of an animal exist for the enforcement provisions of the Ordinance. He writes:
Had the City followed such procedures, it would have been enforcing a law, and its failure to follow such procedures is a failure to enforce a law, a failure that is immune under the Indiana Tort Claims Act. Davis, 2010 WL 3377720, at *6 (Kiersch, J., dissenting).
On June 21, 2011 the Supreme Court of Indiana vacated the opinion of the Court of Appeals.
Justice Sullivan wrote:
[t]he alleged failure of the City Defendants to follow these procedures constitutes at worst a “failure to…enforce a law” for which the City Defendants are immune from liability under Indiana Code § 34-13-3-3(8).
Lawyers experienced in litigating dog bite cases
Indianapolis, IN personal injury attorney, Charlie Ward, is a partner lawyer in the law firm of Ward & Ward Law Firm with experience practicing in the area of personal injury law in the state of Indiana. If you or someone you know has been bitten by a dog, call Charlie today at 317-639-9501 to discuss the facts of your potential lawsuit.
