Criscuolo et al v. Grant County et al, No. 2:2010cv00470 - Document 148 (E.D. Wash. 2014)

Court Description: ORDER granting 105 Motion for Partial Summary Judgment; granting 106 Motion for Partial Summary Judgment; granting in part and denying in part 107 Motion for Partial Summary Judgment; granting 120 Motion to Expedite; and denying as moot 121 Motion to Strike. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 NICHOLAS CRISCUOLO, NO: 10-CV-0470-TOR 8 9 10 11 Plaintiff, ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE v. GRANT COUNTY, et al., Defendants. 12 13 BEFORE THE COURT are Plaintiff’s Motion for Partial Summary 14 Judgment on Affirmative Defense RCW 4.24.410 (ECF No. 105); Plaintiff’s 15 Motion for Partial Summary Judgment on Affirmative Defense RCW 16.08.030 16 (ECF No. 106); Defendants Grant County and Lamens’ Second Summary 17 Judgment Motion Regarding State Claims (ECF No. 107); and Plaintiff’s Motion 18 to Strike (ECF No. 121). This matter was heard with oral argument on January 23, 19 2014. Adam P. Karp appeared on behalf of the Plaintiff. Patrick R. Moberg 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 1 1 appeared on behalf of Defendant. The Court has reviewed the briefing and the 2 record and files herein, and is fully informed. 3 BACKGROUND 4 This case concerns the shooting of Plaintiff’s dog by a Grant County 5 Sheriff’s Deputy. In the motion now before the Court, Defendants move for 6 summary judgment on Plaintiff’s state law claims; Plaintiff moves for summary 7 judgment on Defendants’ state law affirmative defenses. FACTS1 8 9 On January 24, 2010, Grant County Deputy Sheriff Beau Lamens shot and 10 killed Slyder, a dog belonging to Plaintiff Nicholas Criscuolo. The shooting 11 occurred at Neppel Landing Park in Moses Lake, Washington, located within 12 Moses Lake city limits and open to the public. Deputy Lamens was in the park 13 with his police dog, Maddox, assisting with the arrest of an individual for 14 possession of methamphetamine. Maddox, weighing about 60 pounds, is a drug 15 detection dog. 16 1 17 At the Court’s request, the parties did not resubmit their statements of material 18 fact which were previously filed before the appeal. The Court has reviewed those 19 statements of fact, the statement of facts included in Judge Suko’s order, and the 20 Ninth Circuit’s statement of facts on appeal. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 2 1 Slyder, weighing about 110 pounds, was unleashed in the park by the 2 Plaintiff, his owner. Slyder made contact with Maddox, and Deputy Lamens 3 kicked Slyder to separate him from Maddox. During the interaction, Maddox 4 slipped out of his collar. After kicking Slyder, Deputy Lamens shot and killed 5 Slyder. Plaintiff and witnesses testified that Slyder was running toward Plaintiff— 6 and away from Deputy Lamens—when Deputy Lamens shot the dog. Plaintiff 7 testified that the dog was very close to him, one to two feet away, and Plaintiff was 8 reaching for his dog’s collar when Deputy Lamens fired the three shots that killed 9 Slyder. 10 Plaintiff sued Deputy Lamens and Grant County, alleging claims under 42 11 U.S.C. § 1983 and pendent state claims. Upon the parties’ motions for summary 12 judgment, Judge Suko found that Deputy Lamens’ killing of Slyder was 13 objectively reasonable under the Fourth Amendment, and alternatively found that 14 Deputy Lamens was entitled to qualified immunity, and dismissed Plaintiff’s 15 claims against Deputy Lamens. Likewise, the district court held that, because 16 Deputy Lamens did not unreasonably seize Slyder in violation of the Fourth 17 Amendment there was no violation for which Grant County could be held liable. In 18 light of its dismissal of the claims under federal law, the trial court declined to 19 exercise its supplemental jurisdiction over the pendent state claims. 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 3 1 Upon Plaintiff’s appeal, the Ninth Circuit reversed the district court’s 2 finding that the Deputy Lamens’ killing of Slyder was objectively reasonable and 3 that he was entitled to qualified immunity for his actions. The Ninth Circuit held 4 that 5 6 7 8 [a] reasonable trier of fact could find that Deputy Lamens unreasonably shot Slyder after the dogs separated, because Slyder posed no imminent threat to Maddox even though the events occurred rapidly. Criscuolo and other witnesses claim that right before Deputy Lamens fired, Slyder was not springing toward Maddox, Slyder was stationary or retreating at a distance of 10-20 feet from Deputy Lamens and Maddox, and Criscuolo was one to two feet away and about to leash Slyder. 10 Such facts, if credited, strengthen Criscuolo’s Fourth Amendment interests, and a reasonable jury could conclude that Deputy Lamens did not need to make any “split-second decision” to protect Maddox. 11 Criscuolo v. Grant County, --- Fed. Appx. ---, 2013 WL 4017412 (9th Cir. 2013). 9 12 The Ninth Circuit affirmed the district court’s dismissal of the claims against 13 Grant County which were based on policy, inaction, and failure to train. Based on 14 its reversal of the claims against Deputy Lamens, however, the court reinstated 15 Plaintiff’s pendent state law claims. Plaintiff’s Second Amended Complaint lists 16 the remaining seven pendent state law claims as: Malicious Injury to a Pet; 17 Intentional and/or Reckless Infliction of Emotional Distress; Negligence (relative 18 to killing of Slyder); Negligence (relative to physical invasion of Criscuolo); 19 Assault (as to Criscuolo); Ordinary and/or Willful Conversion and/or Trespass to 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 4 1 Chattels; and Gross Negligence, Willful Misconduct, and/or Reckless Property 2 Damage/Destruction. ECF No. 23 at 18. 3 In the motions now before the Court on remand, Defendant moves for 4 summary judgment on Plaintiff’s pendent state law claims, and Plaintiff moves for 5 summary judgment on Defendant’s affirmative defenses under state law. 6 7 8 9 DISCUSSION A. Legal Standard Summary judgment may be granted to a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is 10 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party 11 bears the initial burden of demonstrating the absence of any genuine issues of 12 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then 13 shifts to the non-moving party to identify specific genuine issues of material fact 14 which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the 16 plaintiff’s position will be insufficient; there must be evidence on which the jury 17 could reasonably find for the plaintiff.” Id. at 252. 18 For purposes of summary judgment, a fact is “material” if it might affect the 19 outcome of the suit under the governing law. Id. at 248. A dispute concerning any 20 such fact is “genuine” only where the evidence is such that a reasonable jury could ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 5 1 find in favor of the non-moving party. Id. In ruling upon a summary judgment 2 motion, a court must construe the facts, as well as all rational inferences therefrom, 3 in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 4 378 (2007). Only evidence which would be admissible at trial may be considered. 5 Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). 6 7 8 B. Motion for Summary Judgment on Defendants’ Affirmative Defenses 1. Affirmative Defense Based on RCW 4.24.410 As a threshold matter, the Court must determine whether RCW § 4.24.410 9 confers immunity on Defendants, as they allege. Defendants have moved for 10 summary judgment on this issue. ECF No. 107. Plaintiff likewise moves for 11 summary judgment on Defendants’ affirmative defense under the statute, arguing 12 that the statute is inapplicable to Deputy Lamens because Deputy Lamens was not 13 “using” his K-9 Maddox within the meaning of the statute, and because Slyder’s 14 death did not occur as a result of Deputy Lamens’ “use” of Maddox. ECF No. 105. 15 Plaintiff also argues that the state statute cannot immunize federal claims. Id. 16 With respect to the immunization against federal claims, the Court agrees 17 with Plaintiff. “Immunity under § 1983 is governed by federal law; state law 18 cannot provide immunity from suit for federal civil rights violations.” Wallis v. 19 Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000). Accordingly, any immunity 20 conferred by state statute does not apply to Plaintiff’s § 1983 claims reinstated by ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 6 1 the Ninth Circuit. The Court, then, examines immunity under the statute only with 2 respect to Plaintiff’s state law claims. 3 The statute in question provides in relevant part that “[a]ny dog handler who 4 uses a police dog in the line of duty in good faith is immune from civil action for 5 damages arising out of such use of the police dog or accelerant detection dog.” 6 RCW 4.24.410. 7 Plaintiff contends that Deputy Lamens was not “using” his police dog within 8 the meaning of the statute when he killed Slyder, and thus the statutory immunity 9 should not apply to his actions in this case. ECF No. 105 at 5. Defendant argues 10 that the statute’s language “arising out of such use of the police dog” should be 11 interpreted in accordance with the same language in statutes involving insurance 12 cases to mean “originating from,” “growing out of,” or “flowing from.” ECF No. 13 108 at 6. Thus, Defendant argues, because he was using his police dog and Slyder 14 interacted with Maddox, the statutory immunity applies to his conduct. 15 The Court looks to the language of the statute, as no relevant case law sheds 16 light on the parties’ dispute over the statute’s meaning. At issue in this instance is 17 the interpretation of the word “use.” As the United States Supreme Court has 18 stated with respect to the word “use” in the context of 18 U.S.C. 924(c), 19 20 the word “use” poses some interpretational difficulties because of the different meanings attributable to it. Consider the paradoxical statement: “I use a gun to protect my house, but I've never had to use it.” “Use” draws meaning from its context, and we will look not only to the word itself, but ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 7 1 also to the statute and the sentencing scheme, to determine the meaning Congress intended. 2 3 Bailey v. United States, 516 U.S. 137, 143 (1995), superseded by statute as stated 4 in Abbott v. U.S., 131 S.Ct. 18 (2010). Though Congress amended 18 U.S.C. 5 § 924(c) in 1998 to clarify the meaning of “use” in the context of that statute, the 6 Supreme Court’s general examination of the statutory meaning of “use” is 7 instructive. In Bailey, which consolidated two cases, two defendants were 8 convicted of “using” a firearm in the commission of a crime in violation of 9 § 924(c). In one defendant’s case, police officers found cocaine between the seat 10 and front console of the defendant’s car, while a search of the trunk revealed a gun. 11 The court explained that the trier of fact could reasonably infer that the defendant 12 had used the gun in the trunk to protect his drugs and drug proceeds. In the other 13 defendant’s case, after police observed her go into her apartment to retrieve drugs, 14 they executed a search warrant, which revealed drugs and an unloaded weapon in a 15 locked trunk in her bedroom closet. An expert testified that drug dealers generally 16 use guns to protect themselves from other dealers and the police. The statute at the 17 time required the imposition of mandatory minimum penalties if the defendant 18 “during and in relation to any crime of violence or drug trafficking crime…uses or 19 carries a firearm.” 924(c)(1). The Supreme Court held that the statute “requires 20 evidence sufficient to show an active employment of the firearm by the defendant, ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 8 1 a use that makes the firearm an operative factor in relation to the predicate 2 offense.” Bailey, 516 U.S. at 143. As the Supreme Court elaborated, 3 4 5 6 7 8 9 10 11 The word “use” in the statute must be given its “ordinary or natural” meaning, a meaning variously defined as “[t]o convert to one's service,” “to employ,” “to avail oneself of,” and “to carry out a purpose or action by means of.” These various definitions of “use” imply action and implementation. Bailey, 516 U.S. at 145 (internal citations omitted). The Court explained further: Where the Court of Appeals erred was not in its conclusion that “use” means more than mere possession, but in its standard for evaluating whether the involvement of a firearm amounted to something more than mere possession. Its proximity and accessibility standard provides almost no limitation on the kind of possession that would be criminalized; in practice, nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard, “thereby eras[ing] the line that the statutes, and the courts, have tried to draw.” Rather than requiring actual use, the District of Columbia Circuit would criminalize “simpl[e] possession with a floating intent to use.” 12 13 Bailey, 516 U.S. at 143-44 (internal citations omitted). The Supreme Court’s 14 interpretation of the word “use” in a federal statute is both persuasive and 15 instructive as to how the word should be interpreted in this state statute. 16 Here, Maddox was not an “operative factor” nor was the police dog 17 “actively employed” in the resulting injury to Slyder. Deputy Lamens’ independent 18 use of the gun, as Plaintiff argues, was the direct cause of Slyder’s death. Though 19 Defendants argue that Deputy Lamens would not have had to shoot Slyder but for 20 Maddox’s presence, the word “use” requires more than “but-for” causation because ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 9 1 “use” requires “action and implementation,” according to the Supreme Court. The 2 parties’ dispute whether Deputy Lamens was “pre-stimulating” Maddox for use in 3 detecting drugs when the shooting occurred, but ultimately this inquiry is irrelevant 4 to whether the injury to Slyder arose from “such use” as the statute requires. 5 Nor are the cases Defendants cite in support of their argument that Deputy 6 Lamens’ shooting of Slyder arose from his “use of the police dog” persuasive, as 7 they all involve incidents in which the police dog inflicted the injuries at issue. See 8 Peterson v. City of Federal Way, 2007 WL 2110336 (W.D. Wash. 2007) (police 9 dog bit plaintiff); Lockrem v. United States, 2011 WL 3501693 (W. D. Wash. 10 2011) (police dog bit arrestee’s brother). These cases support the Court’s narrower 11 interpretation of the word “use.” 12 Here, the fact that Maddox was standing by and had recently interacted with 13 Slyder does not mean that Deputy Lamens’ shooting of Slyder arose out of his 14 good faith “use” of Maddox. Defendants’ broad interpretation of the statute would 15 immunize police dog handlers from liability whenever they were using a police 16 dog, something the state legislature most certainly did not intend by using the 17 restrictive, limiting words at issue. It would be another matter if Maddox had 18 injured or killed Slyder. Then such damage could be considered to “aris[e] out of 19 such use of the police dog.” But here, Deputy Lamens used his firearm to 20 ostensibly protect Maddox. The injury and death of Slyder resulting from Deputy ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 10 1 Lamen’s use of a firearm did not “aris[e] out of such use of the police dog.” 2 Accordingly, the Court finds that RCW 4.24.410 does not confer statutory 3 immunity for Defendants’ state law claims under these facts, and therefore grants 4 Plaintiff’s motion for summary judgment. 5 2. Affirmative Defense Based on RCW 16.08.030 (ECF No. 106) 6 Defendants’ First Amended Answer sets forth the affirmative defenses of 7 privilege and immunity. ECF No. 32 at 16-17. In Defendant Deputy Lamens’ first 8 motion for summary judgment before Judge Suko, he contended that police 9 officers have common law qualified immunity from state tort claims if they are 10 carrying out a statutory duty, according to the procedures dictated by statute and 11 superiors and they are acting reasonably, citing RCW 16.08.030. ECF No. 43 at 17. 12 Plaintiff now moves for summary judgment on Defendants’ affirmative defense 13 based on RCW 16.08.030. Plaintiff argues that the legislative history of the statute 14 demonstrates its inapplicability to the instant facts; that Slyder was in fact wearing 15 an identification tag within the meaning of the statute; and that the statute may not 16 immunize federal claims. 17 Washington law provides that 18 It shall be the duty of any person owning or keeping any dog or dogs which shall be found killing any domestic animal to kill such dog or dogs within forty-eight hours after being notified of that fact, and any person failing or neglecting to comply with the provisions of this section shall be deemed guilty of a misdemeanor, and it shall be the duty of the sheriff or any deputy sheriff to kill any dog found running at large (after the first day of August of 19 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 11 1 any year and before the first day of March in the following year) without a metal identification tag. 2 3 RCW § 16.08.030 (emphasis added). 4 Plaintiff contends that the statute does not apply to a sheriff’s deputy acting 5 within the city limits, because there is a city ordinance governing the licensing of 6 pets and the penalty imposed for not wearing a metal tag in the city limits is a civil 7 penalty, not “a directive to police officers (much less sheriff deputies) to enter city 8 limits and kill unlicensed dogs running at large.” ECF No. 105 at 3. Plaintiff cites 9 the legislative history of the statute in support of his argument. Plaintiff further 10 argues that the statute does not define “metal identification tag,” but contends that 11 the dog was in fact wearing two tags: a rabies tag prompting readers to contact the 12 veterinary clinic, and a microchip tag stating that Slyder had an implanted 13 microchip. Id. at 8-9. Defendant maintains that the statute is unambiguous and 14 should be interpreted without reference to its legislative history. ECF No. 108 at 15 12. 16 The Court first considers whether the statute, on its face, applies to the 17 instant facts. Three questions form the crux of the inquiry: whether Deputy Lamens 18 was in fact relying on the statute when he shot Slyder, whether Slyder was 19 “running at large,” and whether Slyder was “without a metal identification tag” 20 under the meaning of the statute. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 12 1 The record supplies no evidence that Deputy Lamens in any way relied on 2 RCW 16.08.030 and determined that Slyder was running at large when he shot 3 Slyder. Moreover, the record supplies no evidence that Deputy Lamens looked at 4 the tags Slyder was wearing to determine if they were in fact “metal identification 5 tags.” With respect to the second question, the Court notes that the statute does not 6 state “unleashed” or “unfenced.” The statute specifies “running at large.” Words 7 in statutes must be given their ordinary meaning. “At large” is defined variously as 8 “free, unrestrained, not under control.” Black’s Law Dictionary (9th ed. 2009). In 9 other words, the phrase suggests a broader context, and not one in which the owner 10 is standing by, within sight. Rather, Plaintiff testified that he was running toward 11 Deputy Lamens, saying that he would leash Slyder. Thus, the dog was not “free” 12 and he was only seconds away from being completely restrained. Furthermore, 13 Plaintiff stated that shortly before the incident, he had asked another Sheriff’s 14 deputy whether he could let his dog off leash, to which the deputy responded that 15 he did not care. Slyder was not roaming unattended or “at large” within the 16 meaning of the statute. 17 With respect to the third question, the statute states only that the tags must 18 be for “identification” and “metal.” The record is ambiguous as to the substance of 19 the tags, but as Plaintiff points out, the statute does not specify that the tags be 20 licensing tags. Slyder’s tags served to identify the dog, in that an owner could be ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 13 1 identified by calling the number on the rabies tag or having the dog’s microchip 2 scanned. Defendant argues that the “statute should not be interpreted to require 3 detective work for an animal that is clearly not identified when running at large.” 4 ECF No. 108 at 12. While the Court acknowledges that sheriff deputies and police 5 officers often have to make difficult decisions at a moment’s notice, there is no 6 suggestion that Deputy Lamens was aware of and enforcing the statute when he 7 shot Slyder, nor is there any indication that he made any attempt to see if Slyder’s 8 identification tags were metal, in compliance with the statute. Accordingly, the 9 Court grants summary judgment to Plaintiff on this issue. 10 C. Defendants’ Motion for Summary Judgment on Plaintiff’s State Law 11 Claims (ECF No. 107) 12 Defendants move for summary judgment on Plaintiff’s state law claims, 13 arguing that Deputy Lamens is entitled to statutory immunity under RCW 14 4.24.410; that there is no cause of action for malicious injury to a pet; that Plaintiff 15 dismissed his cause of action for reckless infliction of emotional distress; that the 16 negligence claims are barred by statute and the public duty doctrine; that negligent 17 infliction of emotional distress is unavailable for negligently injured pets; that there 18 is no evidence that Deputy Lamens assaulted Plaintiff; that Deputy Lamens’ 19 “lawful justification” bars a conversion claim; that Plaintiff’s loss of 20 use/companionship claim is barred; and that emotional distress damages are ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 14 1 unavailable. Having dispatched Defendant’s claim of statutory immunity above, 2 the Court examines each of Defendant’s remaining arguments in turn. 3 1. Malicious Injury to a Pet 4 Defendant Lamens moves for summary judgment on Plaintiff’s claim of 5 malicious injury to a pet, arguing that recovery for malicious injury to a pet is a 6 cause of action only recently created by a single court in dicta and in response to 7 bad facts. Defendant argues that “[t]his court should not blindly adopt this dicta 8 holding.” ECF No. 107 at 7. 9 Contrary to Defendant’s assertion, however, the Washington State Court of 10 Appeals, Division III, articulated a cause of action for malicious injury to a pet not 11 as dicta, as Defendant avers, but as the court’s holding in Womack v. Von Rardon, 12 133 Wash. App. 254 (2006). The Ninth Circuit clearly stated 13 14 15 16 17 18 19 [t]he seminal case of Erie Railway Co. v. Tompkins, 304 U.S. 64, 71–80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), held that federal courts exercising diversity jurisdiction must apply as their rules of decision the substantive law of the states. Generally, state law is determined by statutes or by pronouncements from the state's highest court. See West v. American Telegraph & Telephone Co., 311 U.S. 223, 236–37, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001). In cases where a state supreme court has not addressed the presented issue of state law, “a federal court is obligated to follow the decisions of the state's intermediate appellate courts” unless the court finds “convincing evidence that the state's supreme court likely would not follow [them].” Ryman v. Sears, Roebuck and Co., 505 F.3d 993, 994 (9th Cir. 2007) (internal quotation marks and citations omitted). 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 15 1 Jerry Beeman and Pharmacy Services, Inc. v. Anthem Prescription Management, 2 LLC, 652 F.3d 1085, 1092 -93 (9th Cir. 2011). Consequently, as there is no 3 Washington Supreme Court precedent on point, the Court must apply the law as 4 articulated by the intermediate appellate court absent “convincing evidence” that 5 the state supreme court would disagree. 6 In Womack, the court first considered the availability of recovery under a 7 theory of malicious injury to a pet. Three boys took Ms. Womack’s cat Max from 8 her porch, doused him with gasoline and set him on fire. Womack, 133 Wash. App. 9 at 257. In the ensuing lawsuit, the trial court awarded Ms. Womack $5,000 in 10 general damages for emotional distress in a default judgment. Id. Ms. Womack 11 appealed, arguing that her damages were improperly measured. The appeals court 12 affirmed the lower court, but held that there was a remedy for malicious injury to a 13 pet. Id. The court explained: 14 15 16 17 18 19 20 Division Two of this court affirmed a summary dismissal of a negligent infliction of emotional distress claim because the theory has not been extended to pet injuries. Pickford v. Masion, 124 Wash.App. 257, 262–63, 98 P.3d 1232 (2004). The Pickford court observed, “damages are recoverable for the actual or intrinsic value of lost property but not for sentimental value.” Pickford, 124 Wash.App. at 263, 98 P.3d 1232 (citing Mieske v. Bartell Drug Co., 92 Wash.2d 40, 45–46, 593 P.2d 1308 (1979)). See also Dillon v. O'Connor, 68 Wash.2d 184, 186–87, 412 P.2d 126 (1966) (negligence judgment reversed where jury was instructed to consider more than the “fair market value” of a dog run over by a car). Notably, the Pickford court left open whether malicious injury to an animal may be the cause of emotional distress damages in Washington because their facts, like the Dillon facts, raised solely negligent injury. Pickford, 124 Wash.App. at 261, 98 P.3d 1232. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 16 1 2 3 4 5 6 7 For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in measuring a person's emotional distress damages. The damages are consistent with actual and intrinsic value concepts as found in Pickford because, depending upon the particular case facts, harm may be caused to a person's emotional well-being by malicious injury to that person's pet as personal property. We do not interpret the trial court's final reference to value as limiting the measure of damages to pet fair market value. Thus, we reject Ms. Womack's contrary contention and supportive arguments. The trial court's award for emotional distress damages is akin to a general award for pain and suffering. The court is not required to explain its weighing process or segregate the particular factors it considers so long as the award is reasonably within the range of evidence. It is. 8 9 10 In sum, the trial court properly considered the malicious harm to Max combined with Ms. Womack's distress over her son's harassment when deciding general emotional distress damages. Therefore, the trial court did not err in considering: “Value of Max and Bernadette Womack's emotional distress.” 11 12 Womack, 133 Wash. App. at 263-64 (emphasis added). Thus, a cause of action for 13 malicious injury to a pet is recognized in Washington, so long as the harm was 14 malicious. 15 Defendant also argues that even if there is a cause of action for malicious 16 injury to a pet, there is no evidence that Deputy Lamens acted with malice in 17 shooting Slyder. Plaintiff counters that there exists a disputed issue of material fact 18 as to whether Deputy Lamens acted with malice, citing the facts that Deputy 19 Lamens (1) shot at Slyder three times, showing an intent to exterminate him; (2) 20 did not use nonlethal force on Slyder; (3) did not rely on his training to break up ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 17 1 dog fights as he was trained to do; (4) jeopardized Plaintiff who was standing 2 nearby; and (5) did not assess the need for (emergency) veterinary care. ECF No. 3 111 at 4. The Court agrees that these facts at least create a question of material fact 4 such that summary judgment is precluded. 5 6 2. “Reckless” Infliction of Emotional Distress Defendant moves for summary judgment on Plaintiff’s claim of Reckless 7 Infliction of Emotional Distress. Defendant argues that because the torts of outrage 8 and intentional emotional distress are the same, by pleading the claim as 9 intentional infliction of emotional distress and then dismissing the claim, Plaintiff 10 11 abandoned the claim he now characterizes as “reckless.” ECF No. 116 at 6-7. The tort of outrage requires a plaintiff to prove (1) extreme or outrageous 12 conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual 13 emotional distress. Id. As Defendant argues, “outrage” and “intentional infliction 14 of emotional distress” are typically “synonyms for the same tort.” Kloepfel v. 15 Bokor, 149 Wash. 2d 192, 194, fn. 1 (2003). However, outrage also encompasses 16 reckless conduct. Robel v. Roundup Corp., 148 Wash.2d 35, 51 fn. 7 (2002). 17 The parties stipulated to the dismissal with prejudice of “Plaintiff’s Fourth 18 Claim (Intentional Infliction of Emotional Distress, but not Reckless Infliction of 19 Emotional Distress) and Tenth Claim (stand-alone State Constitutional Violation 20 cause of action),” which the Court accordingly granted (ECF No. 36). In other ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 18 1 words, the parties specifically agreed not to dismiss reckless infliction of emotional 2 distress. The Court accordingly finds that the overall tort of outrage was not 3 dismissed by the Court’s order at ECF No. 36. Rather, pursuant to the parties’ 4 stipulation, the Court dismissed recovery under one theory (intentional infliction of 5 emotional distress) of the second prong; the other theory (reckless infliction of 6 emotional distress) survives. 7 8 9 3. Negligence Plaintiff’s Second Amended Complaint alleges two causes of action for negligence, one “relative to killing Slyder” and one “relative to physical invasion 10 of Criscuolo.” ECF No. 23 at 18. Defendant moves for summary judgment on both 11 claims, arguing that they should be dismissed because Deputy Lamens has 12 immunity under RCW 4.24.410; because Washington law gives pet owners no 13 right to emotional distress damages based on negligent injury of a pet; and because 14 Deputy Lamens owed no specific duty of care to Plaintiff under the public duty 15 doctrine. The Court addresses availability of emotional distress damages at greater 16 length below, and having already dispatched the immunity claims, here considers 17 Defendant’s contention that the public duty doctrine bars Plaintiff’s claims related 18 to the direct invasion of his personal security caused by Deputy Lamens’ firing his 19 gun close to Plaintiff. Plaintiff argues that his claim for negligent infliction of 20 emotional distress arises from fear of his own injury and invasion of his personal ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 19 1 space based on his proximity to Slyder when Slyder was shot. ECF No. 111 at 7. 2 Thus, the Court turns to the question of whether the public duty doctrine precludes 3 Deputy Lamens from owing a duty to Plaintiff. 4 A threshold question when considering liability for negligence is whether 5 the defendant owes a duty of care to the plaintiff. Cummins v. Lewis Cnty., 156 6 Wash. 2d 844, 852 (2006). In negligence actions against a government entity, 7 8 9 10 to be actionable, the duty must be one owed to the injured plaintiff, and not one owed to the public in general. This basic principle of negligence law is expressed in the “public duty doctrine”. Under the public duty doctrine, no liability may be imposed for a public official's negligent conduct unless it is shown that “the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).” 11 Taylor v. Stevens County, 111 Wash.2d 159, 163 (1988) (citations omitted) 12 (quoting J & B Dev. Co. v. King County, 100 Wash.2d 299, 303 (1983)). 13 Washington courts have identified four circumstances under which a governmental 14 entity has a special duty of care owed to a particular plaintiff rather than the 15 general duty of care owed to the public at large, including: 16 17 18 19 20 when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons (legislative intent); (2) where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect (failure to enforce); (3) when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff (rescue doctrine); or (4) where a relationship exists between the governmental agent and any ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 20 1 2 reasonably foreseeable plaintiff, setting the injured plaintiff off from the general public and the plaintiff relies on explicit assurances given by the agent or assurances inherent in a duty vested in a governmental entity (special relationship). 3 4 Bailey v. Town of Forks, 108 Wash. 2d 262, 268 (1987) amended, 753 P.2d 523 5 (1988) (internal citations omitted). 6 Defendants argue that the public duty doctrine precludes claims that Deputy 7 Lamens was negligent because Deputy Lamens did not owe any specific duty to 8 Plaintiff while conducting his drug search. ECF No. 107 at 13. The Court more 9 properly frames the issue as to whether Deputy Lamens owed a duty to Plaintiff 10 when he discharged his firearm three times in close proximity to Plaintiff. Plaintiff 11 invokes the “legislative intent” exception to the public duty doctrine, arguing that 12 RCW 9A.16.040 imposes restrictions on a peace officer’s use of deadly force. 13 14 15 Under the legislative intent exception, the public duty doctrine’s preclusion of liability 17 does not apply where the Legislature enacts legislation for the protection of persons of the plaintiff's class. In Halvorson v. Dahl, 89 Wash.2d 673, 676, 574 P.2d 1190 (1978) we stated that “[l]iability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons.” 18 Taylor, 111 Wash.2d at 164 (internal citations omitted). In Taylor, the court found 19 that there was no “clear intent” to protect a specific class where the municipal code 20 in question did not specifically focus on occupants, but rather provided general 16 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 21 1 minimum performance standards and requirements for building and construction 2 materials. Id. at 165. 3 The statute cited by Plaintiff, RCW 9A.16.040, specifies when deadly force 4 can be used to kill persons. It has no application to the discharge of a weapon to 5 kill a dog and does not create a duty to Plaintiff which would override the public 6 duty doctrine’s shield from negligence based torts. Jimenez v. City of Olympia, 7 2010 WL 3061799, 15 (W.D.Wash. 2010) (the language of the statute does not 8 exhibit clear legislative intent to identify and protect a particular and circumscribed 9 class of persons). Plaintiff’s negligence based claims that Deputy Lamens was negligent in 10 11 discharging deadly force (his service weapon) in proximity to Plaintiff is dismissed 12 because the public duty doctrine shields Defendants from liability. 13 4. Assault Defendant moves for summary judgment on Plaintiff’s claim of assault, 14 15 arguing that because Deputy Lamens had no intent to cause Plaintiff any harm or 16 apprehension of harm, Plaintiff cannot establish an assault claim. ECF No. 107 at 17 14. 18 “An actor is subject to liability to another for assault if (a) he acts intending 19 to cause a harmful or offensive contact with the person of the other or a third 20 person, or an imminent apprehension of such a contact, and (b) the other is thereby ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 22 1 put in such imminent apprehension. Brower v. Ackerley, 88 Wash. App. 87, 93 2 (1997) (quoting with approval the Restatement (Second) of Torts § 21). “The gist 3 of the cause of action [for assault] is ‘the victim's apprehension of imminent 4 physical violence caused by the perpetrator's action or threat.’” Id. at 92 (quoting 5 St. Michelle v. Robinson, 52 Wash. App. 309, 313 (1988)). Here, two theories for assault exist. 2 First, is the traditional type of assault in 6 7 which Defendant intends to put Plaintiff in apprehension of harmful physical 8 contact. Defendants contend that there is no question that Deputy Lamens did not 9 intend to put Plaintiff in fear of imminent physical injury, and that as such no claim 10 for assault can stand. But there is a question of fact as to whether Deputy Lamens 11 pointed his weapon in Plaintiff’s direction. If he did, there is also at least a genuine 12 2 13 The Court finds unpersuasive Defendant’s citation to Kaiser v. United States, 761 14 F. Supp. 150, 155 (D.D.C. 1991), for the proposition that a bystander cannot claim 15 assault for the shooting of an animal; while based on similar facts, the shooter in 16 that case “did not even see plaintiffs at the time he aimed and fired his weapon,” 17 nor did plaintiffs directly see defendant pointing his gun in their direction. Here, 18 there is no indication that Deputy Lamens did not see Plaintiff or that Plaintiff did 19 not see Deputy Lamens point and fire his gun at Slyder, perhaps one to two feet 20 away. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 23 1 question of fact as to whether Deputy Lamens intended to create such an 2 apprehension of imminent harm because Deputy Lamens knew or should have 3 known that pointing a weapon at someone could create apprehension of imminent 4 harm. Accordingly, because there is a question of fact as to whether the gun was 5 pointed at Plaintiff (or within one or two feet of him) when Deputy Lamens shot 6 Slyder three times, this issue is inappropriate for summary judgment. 7 Second, Plaintiff argues that the doctrine of transferred intent applies here, 8 citing a series of criminal cases in support of this proposition. ECF No. 111 at 8- 9 10. Under the doctrine of transferred intent, intent to harm one person can be 10 transferred to another person if it placed them in apprehension of a harmful or 11 offensive contact. See Restatement (Second) of Torts §32 (1965). (“If an act is 12 done with the intention of affecting a third person…but puts another in 13 apprehension of a harmful or offensive contact, the actor is subject to liability to 14 such other as fully as though he intended so to affect him.”). Plaintiff contends that 15 because Deputy “Lamens undisputedly intended to make lethal contact with Slyder 16 using deadly force,” the fact that Plaintiff was put in “apprehension of fear of 17 bodily injury” gives rise to a claim of assault. The Court can find no case law or 18 analysis supporting a theory of transferred intent from a dog to a human, and 19 declines to extend this theory here. 20 /// ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 24 1 5. Conversion of Chattels and Destruction of Property 2 Defendant moves for summary judgment on Plaintiff’s claim of conversion 3 of chattels and destruction to property. Defendant argues that conversion involves 4 willful interference with a chattel without lawful justification; because Deputy 5 Lamens was following Grant County Sheriff’s Office policy when he shot Slyder, 6 he had “lawful justification” for his actions, and thus Plaintiff cannot recover. 7 “The tort of conversion is ‘the act of willfully interfering with any chattel, 8 without lawful justification, whereby any person entitled thereto is deprived of the 9 possession of it.’” Consulting Overseas Mgmt., Ltd. v. Shtikel, 105 Wash. App. 80, 10 83 (2001) (quoting Washington St. Bank v. Medalia Healthcare, L.L.C., 96 Wash. 11 App. 547, 554 (1999)). 12 Here, Defendant contends that Deputy Lamens had “lawful justification” 13 when he shot Slyder under the Grant County Sheriff’s Office policy, which 14 specifically provided that it was within a deputy’s discretion to kill animals who 15 are vicious or attacking. ECF No. 107 at 15. See also Criscuolo v. Grant County, -- 16 - Fed. Appx. ---, 2013 WL 4017412 (9th Cir. 2013) (“Grant County Sheriff’s 17 Office Policy 7.14 provides that animals ‘who are vicious and/or attacking persons 18 or property may be killed at the discretion of the deputy.’”). Plaintiff contends that 19 because the Ninth Circuit held that the policy was not the moving force behind 20 Deputy Lamens’ decision to kill Slyder, it is a question of fact for the jury as to ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 25 1 whether Deputy Lamens’ killing of Slyder was lawful. ECF No. 111 at 11 (citing 2 Criscuolo, 2013 WL 4017412 (“The [Grant County] policy’s “attacking persons 3 and or property” language, at issue here, does not authorize unconstitutional 4 conduct or give officers unbridled discretion to shoot any animal they encounter, 5 even if it is not threatening. No reasonable jury could find that Deputy Lamens’ 6 actions ‘reflected [the] implementation of a generally applicable rule….’”). This 7 Court agrees. Defendants’ motion for summary judgment on this claim is denied. 8 9 6. Damages The parties’ biggest dispute concerns what damages, if any, Plaintiff can 10 recover on any of the theories of liability at issue in this case. Plaintiff’s complaint 11 prays for, among other things, “economic damages, representing the intrinsic value 12 and loss of use of Slyder”; “special and general damages relating to loss of 13 Slyder’s utility”; “noneconomic damages, including emotional distress and loss of 14 enjoyment of life”; “future medical expenses pertaining to Criscuolo’s treatment 15 for emotional distress”; and punitive damages. As a mixed-breed dog that Plaintiff 16 obtained for little or no money, much of Slyder’s value was as a pet and 17 companion to Plaintiff, and much of the damage to Plaintiff was emotional, 18 stemming from the loss of his longtime canine companion. Defendants contend 19 that damages for Slyder’s death, if any, should be limited to Slyder’s market or 20 replacement value. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 26 1 There are three common-law tort bases for recovery of emotional distress 2 damages left in this case: compensatory damages for injury suffered as a result of 3 traditional intentional torts, here conversion and assault; damages suffered from 4 Deputy Lamens’ reckless infliction of emotional distress; and damages suffered 5 from the malicious injury to a pet claim. Also, still at issue are any emotional 6 distress damages recoverable under Plaintiff’s §1983 excessive force claims. 7 Damages for psychological harm are generally available under 42 U.S.C. §1983. 8 See Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (1985). 9 Though Plaintiff argues extensively about recovery under different theories 10 in his response to Defendant’s motion, neither party has moved for summary 11 judgment on the issue of damages on the remaining claims. Irrespective, the issue 12 of damages will have to be decided by the jury based upon properly worded 13 instructions defining the allowable damages. 14 15 D. Plaintiff’s Motion to Strike (ECF No. 121) Plaintiff moves to strike three portions of Defendant’s Reply to Plaintiff’s 16 Opposition to Defendant’s Second Motion for Summary Judgment (ECF No. 116). 17 The Court addresses each in turn. 18 19 1. The portion of footnote 1 asserting that the dog Slyder was “part pit bull,” citing ECF No. 42. 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 27 Plaintiff argues that this reference is an attempt to “prejudice the court and 1 2 jury into believing that Slyder was ‘pit bull.’” ECF No. 121 at 2. Plaintiff contends 3 that Defendant lacks personal knowledge of Slyder’s breed composition, and that 4 any reference to Slyder’s breed is hearsay. The Court, however, does not rely on 5 any reference to Slyder’s breed in considering the motions before it; accordingly, 6 Plaintiff’s motion to strike is denied as moot. 2. Footnote 15, stating “Simply type ‘for sale, pitbull mix breed’ in Google and 7 8 you will get over 17,000, its and an endless list of mixbreed pitbulls for sale 9 in a variety of prices.” 10 Plaintiff here again contends that Slyder’s breed is inadmissible. Again, the 11 Court notes that it does not rely on any reference to Slyder’s breed in considering 12 the motions before it, and therefore denies this motion as moot. 13 3. Defendant’s citation to the unpublished decision Bakay v. Yarnes, 2005 WL 14 1677966 (W.D. Wash. 2005) as precedent, arguing that it violates Local 15 Rule. 7.1(f)(2) and Fed. R. App. P. 32.1(a)(ii). 16 Again, here the Court does not rely on Bakay and accordingly denies 17 Plaintiff’s motion as moot, but does note that unpublished cases may now be cited 18 for persuasive, but not binding authority. 19 /// 20 /// ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 28 1 2 3 4 5 6 IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Partial Summary Judgment on Affirmative Defense RCW 4.24.410 (ECF No. 105) is GRANTED. 2. Plaintiff’s Motion for Partial Summary Judgment on Affirmative Defense RCW 16.08.030 (ECF No. 106) is GRANTED. 3. Defendants Grant County and Deputy Lamens’ Second Summary 7 Judgment Motion Regarding State Claims (ECF No. 107) is DENIED 8 in part and GRANTED in part. 9 a. Defendant’s motion for summary judgment on the issue of 10 Statutory Immunity under RCW 4.24.410 is DENIED. 11 b. Defendant’s motion for summary judgment on the issue of 12 malicious injury to a pet is DENIED. 13 c. Defendant’s motion for summary judgment on the issue of 14 Reckless Infliction of Emotional Distress is DENIED. 15 d. Defendant’s motion for summary judgment on the issue of 16 17 18 19 20 Plaintiff’s negligence-based claims is GRANTED. e. Defendant’s motion for summary judgment on the issue of assault is DENIED. f. Defendant’s motion for summary judgment on the issue of conversion and destruction of property is DENIED. ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 29 1 4. Plaintiff’s Motion to Strike (ECF No. 121) is DENIED as moot. 2 5. Plaintiff’s Motion to Expedite (ECF No. 120) is GRANTED. 3 The District Court Executive is hereby directed to enter this Order and 4 5 provide copies to counsel. DATED February 10, 2014. 6 7 THOMAS O. RICE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE ~ 30

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