 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guerrero v. City of Los Angeles11/18/2002
rmining whether the animal should be seized.
Application of Government Code section 815.6 "requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]" (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498, third italics added.)
Because an officer's obligation under Penal Code section 597.1, subdivision (a), to promptly seize an animal involves the exercise of discretion, said statute does not impose a mandatory duty. Therefore, the failure to discharge a duty under Penal Code section 597.1 is not actionable under Government Code section 815.6.
b. No mandatory duty under LAMC section 53.34.2(a).
LAMC section 53.34.2(a) provides in pertinent part: "The Department shall have the power to summarily and immediately impound a dog or other animal where there is evidence it has attacked, bitten or injured any human being . . . ."
This ordinance merely vests the Department with the authority to impound a dangerous animal but does not impose a mandatory duty upon the Department to do so. Therefore, the Department's failure to seize a dangerous animal pursuant to this ordinance is not actionable under Government Code section 815.6.
c. Guerrero's "special relationship" theory.
Finally, Guerrero argued below that a special relationship existed between him and the City, in that he had to rely on the Department to control the dogs, and that this relationship supplied the missing element of duty.
For "such a special relationship to exist, there must be a voluntary assumption of a protective duty to a certain public person that induces reliance in that person." (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 853.) For example, a special relationship between the police and an individual has been found "in a few narrow circumstances where the police made specific promises to undertake a particular action and failed to do so [citation], where the police created or increased a peril by affirmative acts [citation] or where the police voluntarily undertook to aid an individual, took affirmative steps to aid the individual and by the acts lulled the individual into a false sense of security [citation]." (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704-705.)
On the other hand, " courts have refused to find a special relationship or impose liability based on the negligence by police personnel in responding to requests for assistance, [fn. omitted] in conducting or failing to conduct an investigation, [fn. omitted] in failing to warn of a potential danger [fn. omitted] or in failing to provide sufficient protection where the police have not induced reliance on a specific promise that they would provide specific protection. [Fn. omitted.]" (M.B. v. City of San Diego, supra, 233 Cal.App.3d at p. 705.)
Here, Guerrero does not allege, and does not claim he could allege, that animal control officers undertook to protect him or induced him to rely on a specific promise that they would provide protection. Therefore, Guerrero cannot state a negligence claim against the City based on a special relationship theory.
DISPOSITION
The order of dismissal is affirmed. The City shall recover costs on appeal.
We concur:
KITCHING, J.
ALDRICH, J.
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|