Weekly v. City of Mesa

Citations: 888 P.2d 1346; 181 Ariz. 159; 171 Ariz. Adv. Rep. 3; 1994 Ariz. App. LEXIS 160Docket: 1 CA-CV 93-0109

Court: Court of Appeals of Arizona; August 9, 1994; Arizona; State Appellate Court

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Gregory Scott Weekly appealed a judgment favoring the City of Mesa following his claim for strict liability under A.R.S. 11-1025 (the dog bite statute) after being bitten by a police dog during his arrest on March 12, 1990. The sole issue on appeal was the applicability of a legislative amendment to A.R.S. 11-1025, enacted after the incident, which exempted police dogs from strict liability.

The court determined that the amendment constituted a change in law that applied only prospectively, thereby concluding that the trial court erred in dismissing Weekly's strict liability claim based on this amendment. Weekly's complaint alleged injuries from a police dog attack commanded by Officer Patrick Donahue while responding to a 911 call. Weekly claimed the City was strictly liable as the dog's owner. Initially, the trial court ruled in favor of Weekly, rejecting the City's argument that the statute did not apply to police dogs. 

Subsequently, the City sought reconsideration after the legislative amendment, arguing it clarified the original intent to exclude police dogs and sought relief under Rule 60(c)(6) of the Arizona Rules of Civil Procedure. The trial court ultimately ruled for the City, citing inconsistencies between the dog bite statute and laws permitting reasonable force by law enforcement.

Ambiguity and uncertainty regarding legislative intent arise from the interplay of statutes, particularly following the recent amendment to A.R.S. 11-1025, which exempts military and police dogs from strict liability for dog bites. This amendment serves to clarify the original statute, as supported by case law indicating that amendments can elucidate legislative intent (Mesa v. Killingsworth, 1964). The court ruled that actions justified under A.R.S. 13-409 and immune under A.R.S. 13-413 are exempt from A.R.S. 11-1025's strict liability. Consequently, the court vacated prior orders, denied the plaintiff's motion for partial summary judgment, and granted the City's motion to dismiss. The plaintiff appealed solely on the issue of strict liability under the dog bite statute.

In assessing the dismissal for failure to state a claim, the court applies a standard that assumes the truth of the allegations, only upholding dismissal if no relief is possible under any facts. Statutory interpretation issues are reviewed de novo. Generally, statutes are not retroactive unless explicitly stated. The legislature is presumed to intend change with amendments, particularly when they introduce distinct changes in language after significant time. However, if an amendment resolves ambiguity in a statute, it may be treated as a clarification applicable retroactively.

The original dog bite statute, enacted in 1952, imposed strict liability on dog owners for bites occurring in public or lawful private places, regardless of the dog's prior behavior or the owner's knowledge. This foundational rule has led to ongoing scrutiny and interpretation in light of subsequent legislative developments.

The dog bite statute in effect in March 1990 expanded common law liability, which previously required knowledge of a dog's dangerousness (the "one-free-bite" rule). The statute is strictly construed. The City argues that the 1952 legislature did not intend for police dogs to be included within the statute's strict liability provisions, as police dogs were not in use at that time. Conversely, the plaintiff asserts that the legislature could not have intended to exclude police dogs. The primary issue is whether an ambiguity existed in the law at the time of the plaintiff's bite in 1990, which was later clarified by a 1992 amendment. The 1992 amendment designated the original statute as subsection (A) and added subsections (B), (C), and (D). Subsection (B) exempts governmental agencies from liability for dog bites occurring during police or military work under certain conditions, while subsection (C) specifies that this exemption does not apply if the victim was not involved in actions prompting the dog's use. Subsection (D) requires agencies to have a written policy on the dog's use. Prior to the amendment, A.R.S. 13-409 and A.R.S. 13-413 provided defenses for law enforcement against civil liability related to the use of physical force in specific situations. The City contends that the combination of the original dog bite statute and the justification statutes creates ambiguity resolved by the 1992 amendment.

The trial court's conclusion is disputed regarding whether the justified conduct under A.R.S. 13-409 encompasses arrests utilizing police dogs that bite suspects. The argument that police dog usage does not qualify under A.R.S. 13-409 is rejected, as the use of force by a police dog is comparable to a police officer using a baton. Both situations involve the officer directing force, and the reasonableness of such force is a factual issue. Case law generally supports the notion that police dogs can be justified under the statute during arrests. The jury has the authority to assess if a police dog’s use was excessive force. 

The justification statutes are interpreted to include a police dog's use as "physical force." An inquiry arises regarding potential ambiguities between the justification statutes and the unamended dog bite statute. Legal principles state that statutes should be interpreted to coexist. A.R.S. 11-1025 establishes a general strict liability for dog bites, while A.R.S. 13-409 and -413 provide specific exceptions for nonliability under defined circumstances. Unlike previous cases where ambiguities stemmed from overlapping factual predicates, this situation distinguishes itself by requiring specific criteria for liability under the dog bite statute and different criteria for the City’s defense under the justification statutes. Thus, the City must prove specific conditions to assert a defense against liability.

The interpretation of the two statutory provisions does not create ambiguity and allows both to coexist without eliminating either. These provisions interact similarly to other legal claims and defenses, such as those outlined in A.R.S. 12-820 et seq., which provides various immunities for public entities and employees. The absence of ambiguity means that a statutory amendment cannot retroactively clarify existing law, leading to the conclusion that the trial court incorrectly applied the amended dog bite statute to dismiss the plaintiff's claim.

The justification statutes necessitate factual determinations about police conduct that were not addressed due to premature dismissal of the claim. Such determinations are critical, as they could affect whether the plaintiff has a viable claim against the City for injuries sustained from a police dog. The trial court's dismissal was erroneous; if the City can demonstrate the justification defense facts, it may secure judgment in its favor. Conversely, if it cannot, the plaintiff retains the right to pursue strict liability under the statute active at the time of the injury. The case is thus reversed and remanded for further proceedings.

Additionally, while the appeal involves only the claim against the City of Mesa regarding strict liability for dog bites, it does not address other allegations against additional defendants. The City cites cases from other jurisdictions regarding dog bite statutes, but those cases differ due to the presence of governmental immunity laws not applicable in Arizona at the time of this incident.

Municipalities historically had significant immunity from tort claims, as noted in Blais and Abelseth, with the latter highlighting that Wyoming's governmental claims act excluded strict liability for dog bites. However, Arizona law (A.R.S. 12-820) states public entities are liable for employee actions per state statutes and common law. A.R.S. 11-1020 places full responsibility for damages caused by a dog at large on the owner. The amendment to A.R.S. 11-1025 and its implications for police dog bites remain undetermined, although recent specific statutes typically take precedence over older laws. In this case, the burden of proof rests on the City to establish a justification defense related to dog bites. Additionally, while some evidence from the trial is included in the appellate record, it was not available during the trial court's dismissal ruling, preventing the appellate court from making new factual determinations. The City’s argument that the jury's determination of negligence resolved the issue of reasonable force is dismissed, as the jury may have simply ruled on the lack of negligence in the officers’ actions.