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Donahue v. Washington County2/6/2002
Appeal from the Iowa District Court for Washington County, James Q. Blomgren, Judge.
Plaintiffs Michelle Donahue and Patrick Donahue appeal from the district court's grant of summary judgment to defendant Washington County.
Plaintiffs-appellants Michelle Donahue and Patrick Donahue appeal from the district court's grant of summary judgment to defendant- appellee Washington County, whom plaintiffs sued in a personal injury case arising out of injuries which their child suffered due to a dog bite. In granting defendant's motion for summary judgment, the district court concluded plaintiffs had no private right of action because there was no legal duty in this case to support such a cause of action. Plaintiffs claim on appeal that defendant did owe plaintiffs a duty and that this duty created a private cause of action. Plaintiffs argue 1) defendant had an actionable legal duty under statute; 2) defendant owed that duty to plaintiffs; 3) the district court erred in requiring a special relationship between plaintiffs and defendant in this case; and 4) defendant waived its immunity. We affirm.
On January 21, 1998 plaintiffs' daughter, Madison Donahue, age two, was attacked by a dog near their home in Johnson County. Her injuries consisted of multiple bite wounds to her head, ear, face, shoulder and chest. At the time of the attack, Madison was taking a shortcut through a neighbor's yard. Apparently the dog, owned by an acquaintance of the neighbor's and temporarily chained up in the neighbor's yard, had attacked two people on two previous occasions. Both of these attacks had occurred in Washington County, where the dog's owner, John Hansen, was living at the time. Although both of these previous occasions were investigated by Officer Nick Shelman, who is a reserve officer in Washington County's Sheriff's Department, Officer Shelman did not report the dog or the incidents beyond filing a standard dispatch report.
The district court found that Officer Shelman failed to fully investigate the two dog-bite incidents in Washington County and that he was negligent in failing to file a report to the Washington County Sanitarian, pursuant to Iowa Code section 351.26 (1997) and the Washington County Ordinances Code, which provide for dog control and impoundment.
On appeal plaintiffs point to Iowa Code section 351.26 and applicable Washington County Ordinance Code sections to establish that Officer Shelman was negligent in his investigation of the dog-bite incidents, and that these sections, along with Iowa Code section 670.2, establish a private right of action against the county.
We review the grant of summary judgment for errors at law. Whalen v. Connelly, 593 N.W.2d 147, 152 (Iowa 1999). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 237(c); Kolbe v. State of Iowa, 625 N.W.2d 721, 725 (Iowa 2001). We examine the record in the light most favorable to the party opposing the motion, who is entitled to every legitimate inference that can be reasonably deduced from the evidence. Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000).
To prove their negligence claim, plaintiffs must establish 1) Washington County owed them a duty; 2) Washington County breached or violated that duty; 3) this breach or violation was a proximate cause of their injury ; and 4) damages. See Kolbe, 625 N.W.2d at 725 (citations omitted).
Plaintiffs claim Washington County had a duty under statutory
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