When Cities Are Afraid of a Bite: Limiting Dog Park Liability

Think of it this way. Local government is always on the brink of disaster. The services cities and counties provide are so intimate with everyday life that bad luck or carelessness or malevolence could, at any moment, end in someone's grief. And when the grief has abated, the most naturally American thing to do is ... sue somebody.

The city and the county of Los Angeles spent a combined $650 million on litigation in the past four years (which includes legal costs and payouts shouldered by cities that contract with the county). Even though most negligence suits against local governments are dismissed before trial, every case must be investigated and even frivolous cases defended.

Serious or frivolous, every lawsuit has a cost, mostly in the form of lost opportunities. Each dollar spent on litigation is a dollar not spent on the services that underpin everyday life. And the number of suits in Los Angeles County is increasing, up about 20 percent from 2009.

The cost of municipal liability insurance ballooned in the 1980s, threatening the operation of swimming pools, the coaching of sports teams, and even the paving of highways and replacing traffic signals. In defense, cities formed joint insurance funds -- essentially mutual insurance agencies -- to cover liability claims.

This system of mutual insurance is one of the unknown success stories in restraining the costs of local government. But these lower costs have been accompanied by a rigorous focus on risk management. Consider the kind of playground where you might have spent unsupervised hours as a child and look at today's park playground, calibrated to be as harmless as possible.

Cities have been well taught. And they are justly anxious about any program or service innovation that brings plausible risks. Although California Government Code Section 815 (the Tort Claims Act) seems to release local governments from liability when the public acts negligently in a public place, the threat of litigation (and its accompany cost) leads cities to resist the plausible risks in new programs and services.

The unknown was skateboard parks in the 1990s. In response to liability concerns, the state legislature adopted an exemption for skateboard parks in 1997.

Today, the unknown is dog parks. Assemblyman Mike Gatto (D-Burbank) thinks dog parks should be exempted by statute to encourage cities to build more dog parks.

The liability exemption for skateboard parks shifted the risk to users (in the way a parking garage shifts the risk of accidents to drivers). Gatto's dog park exemption would take the same route, requiring dog owners to accept the risk of injury (to self or dog) when on park grounds.

The Assembly Judiciary Committee's experts think the liability issue is trivial: "The committee is not aware of any instances in which a local public entity in California has been sued for an injury caused by a dog in a dog park," the legislative analyst wrote. "The many letters in support of this bill -- most from local public entities and their respective associations -- vigorously maintain that a public entity would be liable, even though none cite any example of such a lawsuit ever arising."

The issue isn't so trivial for cities and their insurance carriers. Each claim has a cost, including a set-aside amount -- $20,000 or $30,000 -- that might have to paid out in a settlement or a judgment, however unlikely. The mitigation of plausible risks has a cost, too, in the design of a public facility and in its operation. And potential risks are added to the cost of liability insurance. Actuaries are supposed to make this kind of calculation.

Assemblyman Gatto believes his bill will solve a problem and lead to more dog parks. The legislature's analysts think the problem doesn't exist and (by implication) they accuse cities of being timid.

Meanwhile, risk managers remind city councils that anything can be the cause of a lawsuit. Before approving a new facility, like a dog park, city council members remember the costs, because local governments are the "deep pockets" of last resort when anyone of the public is aggrieved.

And community members wonder why something so simple -- so harmless -- as letting their dog run free in a park should be weighted with so many concerns.