January 20, 2022
CITY AND COUNTY CODES AND DOG BITES
Cities and counties have interjected themselves into the mix in dog bite cases. It seems that, with the exception of Idaho Code § 25-2810(11), most regulations and rules dealing with dogs are dealt with at the municipal or county level. For example, Ada County Code Title 5, Chapter 7, has quite extensive rules regarding animal control, including many code sections about dogs. While the Boswell case appears to make it clear that common law causes of action may be replaced by Idaho Code § 25-2810(11), it is unclear how this works in negligence per se cases. Idaho case law indicates that local dog control codes and regulations may apply to create a duty. “A landowner may be liable under a theory of negligence per se where the landowner violates a statutory duty.” As noted in the prior article our firm wrote about dog bite cases, there has not been a reported case analyzing the application of Idaho Code § 25-2810(11) since the section was adopted, but as county and city codes are changed and modified, questions will come into play as to which controls.
In addition to negligence per se claims, dog bite cases become more complex when the home-rule doctrine is considered. The home-rule doctrine is the idea that local governmental entities, “no longer depend on the state legislature for their authority to determine their local affairs and government, but have power granted directly from the people through the state constitution, without statutory authorization.” Home-rule cities and counties not only have significant authority to govern themselves, but they often have been deemed to have power to create civil causes of action.
IDAHO CASE LAW IMPLICATING THE HOME-RULE DOCTRINE
Idaho law on the home-rule doctrine is confusing, and it is a dog bite that created the confusion. Some cases indicate that Idaho eschews the home-rule doctrine, and instead follows “Dillon’s Rule,” which indicates that, “a municipal corporation, as a creature of the state, possesses and exercises only those powers either expressly or impliedly granted to it.” One authority that conducted a 50-state review of whether cities had power to create private causes of action noted that, as of 2012, Idaho had, “No case law of significance”. However, in Boswell, that might have changed.
The Court of Appeals indicated in Boswell that the plaintiff sued under a Pocatello Municipal Code, which appeared to have created a private cause of action. The Supreme Court later also allowed a jury instruction based on this city code. None of the Boswell cases indicate that any party actually challenged whether Pocatello had the right to create a civil cause of action that could be enforced throughout the state of Idaho; instead, it appears that all parties simply presumed this was a valid municipal action.
Despite Boswell, it is not clear that Idaho cities and counties have the right to create civil causes of action for dog bite cases. As noted above, Idaho does not have a strong home-rule provision in its constitution. In Idaho, cities and counties are constitutional creations, but all of the powers given to cities and counties are statutorily created. No statute specifically gives cities and counties the right to create civil causes of action relating to dog bites. Yet Pocatello is not the only city that has created such causes of action. For example, New Meadows City Code § 5-3-15.G clearly creates a strict liability cause of action for any dog bites that occur within city limits.
If cities and counties can create independent causes of action, Idaho courts could take this farther. Idaho courts will recognize a private cause of action to enforce legislative enactments and will occasionally look to determine whether a statute which does not explicitly create a cause of action intended to do so. If Boswell creates a strengthened home-rule doctrine in Idaho, then private causes of action could potentially be implied from city and county codes.
WHAT TO DO WITH IDAHO’S UNSETTLED LAW
It is unclear whether Boswell was intended to acknowledge that city codes can create private causes of action, or simply was a case where no one made an objection and therefore the claim was presumed to exist and be valid. In contrast to Boswell, Idaho case law suggests that it is the legislature and courts which have power to create causes of action. Until this matter is raised before the Idaho Supreme Court, the sorts of claims that arise in a dog bite case may be dependent on where in Idaho the bite occurred.
INSIGHTS FOR GF CLIENTS
- When dealing with a dog bite case, it is important to analyze what causes of action are actually contained in the Complaint. While Boswell has created some confusion as to whether cities and counties can create new causes of action, it is fairly clear that Idaho’s prior common law regarding dog bite cases has been preempted. Therefore, there may be a basis to dismiss any common law causes of action, should they be pled in the Complaint.
- Further, review of Idaho Code § 25-2810(11) makes it clear that there are numerous affirmative defenses that exist which were not necessarily applicable under the old common law claims. Thus, the statute should be reviewed when the Answer is being prepared for purposes of including relevant defenses. As to city and county created causes of action, this issue will eventually need to be reviewed by the Idaho Supreme Court. The best action at present is to include a defense that such causes of action are either unconstitutional or have been preempted by statute.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.