Dog Park Law 101

Dog Park Discussion.  Fran Breitkopf and I were interviewed by Fred Kray on pblnn.com. Click on the listen link under Dog Law Reporter and Stray Dog.

Mornings in New York begin for many people with a quick walk to a dog park where they give their pets a few minutes of running and playing before confining them to apartments until dog walkers arrive. At 10 in the morning in Seattle, seniors and dog-walkers supervise the play of dozens of dogs until the soccer moms arrive around noon. In Phoenix, young professionals gather after work and watch their dogs cavort, exchanging information on what groomers give the best cuts and whether raw meat is a good idea or not.

In urban and suburban plots averaging an acre or two or three, that portion of the country that owns and enjoys dogs is becoming accustomed to the rhythms of dog parks, an entire sociology that must soon be described in masters’ theses and debated at academic conferences. Inevitably, conflicts come with any cultural change, conflicts mean legal disputes, and the first fruits of this process are now evident in some judicial decisions and legislative trends.

It is time to take stock of where this fledgling area of law is going.

A recent Westlaw search found 32 legal decisions containing the phrase “dog park,” though some of these cases only had one hit because an incident occurred near a dog park which had nothing to do with dogs or the dog park or dog owners or anything else worth discussing in any depth here. A dog ordered euthanized by authorities in Long Beach California, for instance, was found to be a “vicious animal,” having attacked a number of other dogs, including a pug at a dog park. Caffray v. City of Long Beach, 2005 WL 3360940 (Ct. App. 2005) Another case involved an allegation of negligence in the construction of a bicycle park in which the plaintiff broke his neck. The construction of the bicycle park was affected by the simultaneous construction of a dog park, but the law of the case could not be said to concern dog parks per se. Spiegelhalter v. Town of Hamden, 2010 WL 626066 (Conn. Super. Ct. 2010)

Most law on dog parks is municipal and belongs in the category of local ordinances. Legal disputes based on such ordinances are seldom going to reach courts that issue written opinions. Nevertheless, states are beginning to see that various liability issues are best addressed on a state-wide level, and the expansion of dog parks in the United States is undoubtedly going to result in additional law in the near future. Here’s what we’ve found so far.

Creating a Park

Cities and towns choosing to create dog parks will generally prefer to use land they already own, keeping expenses to a minimum by looking for a suitable area that can be carved from undeveloped land or perhaps from an already existing park. In doing so, the city must be sure that zoning or other land use restrictions do not apply. As demonstrated by a case from Michigan, this is not always simple.

The Woodstock, New York, Dog Park, shown in two pictures here, was created in a wooded area owned by the town. The choice of the area was in part due to a desire to keep the park in an area that afforded the shade of a natural wooded canopy and the retention of the forest feel. It has proven to be a very appealing location to both dogs and handlers.

Land Use Restrictions

In 1915, the Bloomfield Estates Company recorded deed restrictions on lots in the Bloomfield Estates subdivision. In 1928, Bloomfield Township purchased Lot 52 to create a park. A complaint was filed to remove deed restrictions but the complaint was voluntarily dismissed. In 1938, the city of Birmingham was deeded Lot 52, being used as a park, but “subject to the building and use restrictions of record.” The land was incorporated into Springdale Park, a 55-acre park administered by Birmingham. In 2003, the plaintiff learned that the city planned to use Lot 52 of Springdale Park as a dog park and notified the city that the Association would enforce its rights under the deed restriction.

The city argued that the Association had waived its right to enforce deed restrictions. The trial court did not agree, but determined that the deed restriction was not violated, finding that a dog park constituted a residential use. The Court of Appeals reversed in a split decision. This court believed that the Association had waived its right to preclude use of Lot 52 as a park of the sort it had been used for, but found that a dog park involved “more serious violation of the deed restrictions,” which the Association could challenge.

Before the Michigan Supreme Court, the city fleshed out its argument that a dog park was a residential use, noting that homeowners could allow dogs to wander in their own backyards under “residential purposes only” restrictions. Thus, a dog park was sort of a collective back yard for a neighborhood, and as such a residential use.

The Michigan Supreme Court disagreed:

“[A] backyard is attached to a home, and hence fits within the actual meaning of the term ‘residential.’ That is, a backyard is an extension of a residence. A dog park is not attached to a home, and hence does not accord with the meaning of the term ‘residential.’ Moreover, a dog park lacks two characteristics of a backyard, which suggests that a dog park is not included within the commonly understood meaning of ‘residential’ use. First, because a backyard is attached to a home, the master exercises some level of control over the backyard. Here, no one person controls the dog park. Second, the dog park may permit use by a great multitude of dogs at one time, while a backyard generally contains at most a few dogs. These characteristics sufficiently distinguish a dog park from the meaning normally ascribed to ‘residential’ use, thereby indicating that the dog park violates the deed restriction limiting Lot 52 to ‘residential’ use.”

The court also noted that the number of dogs in a yard might be limited by local ordinance, but that there was no limit on the number of dogs in the dog park, another distinction between dog parks and residential uses of property.

The Supreme Court agreed with the appellate court that the dog park was a more serious violation of the deed restriction than the previous park uses made of the space by the city, and therefore the Association could challenge the dog park usage. A dissenting justice, apparently a dog person, argued that the dog park was a residential usage. Bloomfield Estates Improvement Association, Inc. v. City of Birmingham, 479 Mich. 206, 737 N.W.2d 670 (2007). For earlier history, see Bloomfield Estates Improvement Association, Inc. v. City of Birmingham, 2006 WL 626191 (Ct. App. 2006). For an analysis of the case under property law, see D.E. Nykanen (2009). Real Property. Wayne Law Review, 55, 575-598, at 592-3.

Opposition Can Be Well Financed

Anyone familiar with creating a dog park knows the headaches of navigating local and regional politics, the wars between dog people and anti-dog people, the ways that an effort can be blocked, adjusting that effort to meet legitimate objections, and so on. A Massachusetts case shows that a well-financed objection can kill a proposal even if it might not win on the merits.

In 2006, residents of Foxborough, Massachusetts, established a 2.8 acre no-leash dog park in the Cocassett River Recreational Area. Opponents of the park that the court called the “Baker group” filed an action against the town board, arguing that it violated deed restrictions on the donated land where the dog park was built. The board voted to settle the lawsuit because of concern with the litigation costs. The conservation commission viewed the dog park as an appropriate use under deed restrictions, but the town manager filed a motion for entry of a consent order, agreeing to close the dog park. Residents favoring the dog park then sought to intervene, but the Land Court denied the motion to intervene. The appellate court agreed, holding that the group lacked standing. The board and the town manager had control of all interests in the donated land.

The case is primarily procedural. If the board and town manager had decided to fight opponents of the dog park, this case does not indicate who would have won. It is, however, a lesson that supporters of dog parks must remember. Opponents can win merely by threatening a sufficient public cost to maintaining a dog park. Baker v. Board of Selectmen of the Town of Foxborough, 2008 WL 4799468 (Mass. Land Ct. 2008), aff’d 77 Mass.App.Ct. 1117, 2010 WL 3257845 (2010), aff’d sub nom. Hubrich v. Town of Foxborough, 78 Mass.App.Ct. 1120, 939 N.E.2d 803 (table), 2011 WL 103949 (2011).

Easement Access to a Dog Park

Establishing a dog park may require more than merely land for the park. An easement may be necessary for access to the park. This may involve separate environmental impact issues. (See Public Notice of the Alaska Department of Natural Resources, Division of Mining, Land and Water, Northern Regional Office, 4/22/2008 (2008 AK Reg. Text 135066(NS)), regarding a proposed easement to the Fairbanks Dog Park, Inc.)

Using Federal Property for a Dog Park

When looking for a location for a dog park, do not exclude the possibility that federal properties might be available for a small fee. The federal government permitted development of a dog park on land no longer used for military purposes at the former Puget Sound Naval Station at Sand Point. See Government Accountability Office (June 2006). Federal Real Property: Most Public Benefit Conveyances Used as Intended, but Opportunities Exist to Enhance Federal Oversight, GAO-06-511. Our friend, Kingsbury Parker sends us this description of the area:

“The entire naval station complex is being converted into public use facilities such as indoor tennis, theater group productions, outdoor concerts, the start and finish of various races, nature trails, and some leasing of land to groups that focus on sports activities such as the Mountaineers Club building and a health club with two indoor soccer fields, They completed a huge open field used for soccer practice and frisbee competitions, among other things, and they also built a very nice soccer field right next to that. There is a hill called fittingly Kite Hill and the whole complex is bounded by Lake Washington on the East. The dog park is well fenced with a long trail heading down to the lake where quite a few dogs are in the water pretty much all day. That lake access for dogs is fenced about 30 feet out into the water so dogs can swim out and around onto on-leash land if the owners are not careful. There is an even larger area on the other side of the fence to the south that is on-leash where a lot of people go jogging or walking. Various scoff-laws sometimes take their dogs off-leash in these areas although the fines start at $125, so not many do that.”

Officials Designated with Authority to Create Dog Parks

Some regulations delegate the responsibility for creating dog parks to specific officials. In the District of Columbia, the Director of the Department of Parks and Recreation is delegated the authority to issue rules to establish procedures for selecting a site for a dog park as well as the procedures for operation, maintenance, and use of a dog park. DC Order 2007-53 (delegation of authority under the Dog Park Establishment Act of 2005) (2007 DC Reg. Text 68645(NS))

Advice to Groups Seeking to Establish Dog Parks

The American Kennel Club has created a web page with useful advice on how to start a dog park. The Hamden Responsible Dog Owners’ Group has posted a particularly insightful description about how a group of individuals interested in building a dog park in Hamden, Connecticut, went about it.

Dogs Permitted to Use a Park

New York City imposes requirements on handlers who use dog parks, known as “dog runs” in the city’s code:

“Dog Runs: Certain fenced park areas may be designated by the Commissioner as dog runs, and persons owning or possessing dogs that are wearing a license tag and vaccinated against rabies pursuant to the laws of the State of New York and City of New York are permitted to allow such animals to remain unleashed in these areas. Users of dog runs shall obey posted rules. Users of such dog runs shall provide proof of current vaccination against rabies and proof of current licensing upon the request of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other Department employee or employee of the DOHMH, the refusal of which shall constitute a violation of §1-03(c), §1-04(i) and of this paragraph.” RCNY 56.1-05(r)(3) Under RCNY 24.161.05(b)(1), the Department of Parks and Recreation can close dog runs at night.

The American Kennel Club also recommends a number of access rules, including: (1) puppies using the park should be at least four months old, (2) dogs in heat should be excluded as should dogs with a history of aggression, (3) dogs must carry a leash at all times and be leashed before entering and prior to leaving the park, and (4) violators of park rules should have their privileges suspended.

The District of Columbia dog park regulations, reproduced in full as an appendix below, specify a number of restrictions on dogs and handlers using area dog parks, including that a handler shall:

• not use a spike or choke collar on a dog in the dog park.
• immediately leash and remove from a dog park his or her aggressive dog; an aggressive dog is “a dog whose behavior is characterized by unprovoked snarling, growling, or attack posture.”
• not have a dog designated as a dangerous dog or a potentially dangerous dog in the dog park; a dangerous dog is defined under D.C. Law as a dog “that has bitten or attacked a person or domestic animal without provocation; or, in a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals.”
• control excessive barking.
• report all animal bites to the Department of Health within 24 hours.

Under DC rules, a handler is to be at least 16 years old. A child under 16 may enter a park only with an adult. DC parks are to have permanent signs, in both English and Spanish, stating the rules of the park. Each park has a sponsoring group responsible for enforcement of its rules, but those groups can seek the assistance and authority of other agencies, such as the police.

Some Colorado parks restrict the number of dogs a single handler can bring at one time into a “designated dog off-leash area.” See rules for Rifle Falls State Park and Cherry Creek State Park (Colorado Regs. 2.405-1 (2010 CO REG TEXT 233281(NS))).  The Presidio Trust requires that persons walking four or more dogs in Area B of the Presidio of San Francisco have a Commercial Dog Walking Permit from the City and County of San Francisco (77 Fed. Reg. 69785, November 21, 2012). This suggests, of course, that walking a large number of dogs can be a source of revenue for a community. 

Dog Park Enclosure

The District of Columbia provides that a dog park “shall be completely enclosed by a fence and gate, both no less than 5 feet in height.” D.C. Code 8-1808.01. One of the authors (John) uses a dog park in Phoenix that was only recently fenced in. The park was used primarily by owners of small dogs before the fencing, some of whom objected to the fencing because they (correctly) believed it would bring in large dogs. The solution here is generally to create two parts to the dog park, one for large dogs (e.g, 30 or 35 pounds), and one for smaller dogs.

Dog Parks Can Be Periodically Closed for Maintenance

In a case concerning campground usage, the Supreme Court of Hawaii in dictum noted that the designation of a space as a dog park does not mean that the space cannot be closed for maintenance on two days of the week. A temporary restriction on dogs could be imposed without the space losing its designation as a dog park. Hawaii v. Hitchcock, 123 Hawaii 369, 235 P.2d 365 (2010)

Running at Large Statutes

Many ordinances prohibit dogs running at large, and many states have statutes specifying that such laws do not apply to dogs involved in hunting where this is permitted. Illinois has revised its “running at large” statute to state that a “dog that is in a dog-friendly area or dog park is not considered to be running at large if the dog is monitored or supervised by a person.” (Ill Statutes Chap. 510.5.9)

The District of Columbia states that a dog being at large “does not include a dog in a dog park that is under the verbal command of a responsible adult.” D.C. Code 8-1801. This is a better approach, since it allows enforcement against someone who is not in control, or not responsible enough to be so. The District of Columbia specifically prohibits permitting a dog on a school ground “when school is in session on any public recreation area, other than a dog park, unless the dog is leashed.” D.C. Code 8-1808. For New York, see RCNY 24.161.05(b)(1).

Statutes and rules requiring that owners pick up their pets’ waste generally apply to dog parks as to other public areas. (See Consolidated Colorado Regulations 2.405-1.) General recreational park usage rules apply to dog parks, though this will not always be stated. (See Alabama Reg. 797 X-4, General Park Rules (9)(a).)

Owner Criminal Liability for Attacking Other Users of Dog Park

One of the worst nightmares in the use of a dog park happens when someone brings an overly aggressive dog and lets it roam out of control to harass, bite, and even kill other dogs. If there are enough users of the park present when such a handler and dog enter, they may be able to persuade the person to leave with his dog. If an escalation occurs, a person with a dog under attack is faced with the problem of protecting the dog and trying to get some identification from the handler of the aggressive dog. Although some dog parks use sign-in systems, these are frequently ignored, sometimes by virtually everyone, and tracking down a handler who is not likely to return for some time can be difficult. Of course, as the Thurber cartoon implies, it's sometimes difficult to say who's causing the problem.

First Bite May Be Excused

A recent Hawaii case shows that the handler of an aggressive dog may get a pass the first time it is known to attack people or other dogs, but the second time is not likely to be overlooked. The Hawaiian Humane Society dog park in Honolulu is an off-leash park where Ronnie MacDonald took his pit bull, Beautiful Baby Girl, on June 29, 2006. Three 12-year-old girls arrived at the park and began admiring the dog, which bit two of them, causing bleeding and puncture marks. The dog attacked them several times. They went to the Humane Society and got bandaids. Humane Society officials told MacDonald to leave the dog park. MacDonald agreed that the girls had not provoked the dog, but insisted his dog had never bit anyone before.

A second incident occurred on July 19, less than a month later, near a Jack in the Box restaurant. MacDonald was pushing a wagon when Ryan Cambra passed in the other direction. The dog bit Cambra’s below the waist, causing bleeding and leaving a one-inch scar.

The trial court levied a $50 fine for animal nuisance, and sentenced MacDonald to concurrent six-month terms with 100 hours of community service for negligent failure to control a dangerous dog (a crime under the Revised Ordinances of Honolulu 7-7-2). The court ordered Baby Girl to be destroyed but stayed the sentence pending appeal. The Court of Appeals noted that negligence could be found even if a dog had not previously bitten a person, though in sentencing the first conviction is a petty misdemeanor but the second can involve more serious penalties for a bite committed within five years of a previous conviction.

The appellate court concluded there was insufficient evidence to convict MacDonald of failure to control a dangerous dog as to the first incident, but there was substantial evidence for conviction of this crime on the second incident. The court affirmed the conviction regarding the second incident. Since the sentences were concurrent, there was still a six-month prison sentence, but whether it was served in full was not stated in the decision. Hawaii v. MacDonald, 120 Hawaii 48, 200 P.2d 417 (2009)

Evidence of Propensity Needed for Liability

That it can be difficult to establish knowledge of a dog’s propensity to bite is indicated by a case from Kingston, New York. An off-duty police canine handler for the New York State Police was walking two dogs in Kingston, New York, when one of them attacked another dog being walked at the location. The owner of the dog that was attacked sued.

The attacking dog had been an explosives detection dog but had been retired for six years. For some reason, the dog had continued to accompany the defendant to work. The dog was trained in a passive alert and had been socialized so as to work in heavily populated areas. It had received some training in protecting its handler, meaning, according to the defendant, that the dog could defend her against an aggressive attack “while she was on duty,” a situation that had never arisen. The dog had not been used in apprehending any suspects and, according to the defendant, “had never bit, barked at, or otherwise displayed aggression toward another person or animal.” The court found this testimony was sufficient to establish that the defendant had no actual or constructive notice of the dog having any vicious propensities. Under New York law, an owner is strictly liable for harm an animal causes as a result of vicious propensities he or she knew of or should have known of. Therefore, defendant’s motion for summary judgment was granted. The court stated:

“[T]here is no support in the record for a finding that defendant kept the dogs as guard dogs, and we are not convinced that the formal training that the dogs received as members of the State Police K9 unit equates with the dogs being kept as guard dogs. Nor do we find that the formal police training of the dogs constitutes either evidence of viciousness or provided defendant with notice of such …. Moreover, not only is evidence of a dog's breed insufficient to demonstrate that an issue of fact exists, ‘where, as here, there is no other evidence even suggesting that defendant knew or should have known of [the dogs'] allegedly vicious propensities, consideration of the dog[s'] breed is irrelevant’ ….”

What was not explained was why the dog could not be recalled quickly. A well-trained police dog should immediately return to its handler on command. Also, there should have been deeper analysis of what “handler protection” training involved. Thurber v. Apmann, 2012 N.Y. Slip Op. 00453, 2012 WL 225395 (Ct. App. 2012) An earlier New York case had found that training an animal to attack a “bite sleeve,” used in suspect apprehension training, was enough that “a jury could reasonably conclude that the dog's behavior with regard to the bite sleeve was sufficient to put defendants on notice that he might bite someone, as it is alleged he did to the child.” Gannon v. Conti, 2011 WL 2637562 (Ct. App. 2011).

Public Nuisance Complaint

A case from Connecticut did not contain enough facts to know exactly what happened, but the Connecticut Superior Court concluded that a person attacked in a dog park could bring an action for public nuisance against another user of the park whose dog had attacked her. The defendant did not need to control the dog park to be liable for the nuisance created by an out-of-control dog. This is a matter regarding remedies, but there will generally be some way in which an irresponsible dog owner can be liable for a vicious dog, and liability can probably be both civil and criminal. Nucci v. Harding, 2009 WL 1142578 (Conn.Super. 2009)

A particularly useful website regarding dog bite law, with a number of pages devoted to dog bites occurring in dog parks, is the site of Kenneth Phillips, a Beverly Hills attorney who specializes in dog bite law.

Government Liability for Conditions in Dog Park

In a suit against Piedmont, a California city, a woman alleged that she slipped and fell on the pathway in a dog park because it was maintained in a dangerous condition. She was walking her dog, named Diogi, on Jun 29, 2004, in the off-leash fenced in section of the park. The park had a posted rule stating that owners were “responsible for all injuries and/or property damage.”

The city cited the state's recreational use immunity statute, California Government Code § 831.4, which provides immunity to a public entity for an injury caused by a condition of an unpaved road or trail “which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a(1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.”

The plaintiff argued that the path in the dog park was a sidewalk, for which a city could be liable. The trial court agreed with the city, and the California appellate court affirmed. Amberger-Warren v. City of Piedmont, 143 Cal.App.4th 1074, 49 Cal.Rptr. 631 (Ct. App. 2006).

In a case arising in Buffalo, New York, Mary J. Hall had taken her pets to a temporary dog park inside of Lasalle Park in Buffalo in 2008.  On exiting the park, she tripped over and fell on a horizontal metal bar that formed the bottom of a section of a temporary fence where there was a gate.  The gate may have closed on her after she fell. 

Hall sued City Fence, a company that owned and installed the fence, and various government entities including the City of Buffalo, Erie County, the Erie County Parks Department, and others for “failing to design, construct, install, and maintain the entryway gate in a reasonably safe manner,” including “installing a temporary gate in such a manner that a lower bar was raised to an unreasonable height causing a tripping hazard.” 

The park had been established by private citizens, organized by the Niagara Frontier Veterinary Society, Inc., which was also a defendant, along with the Society’s president at the time of the incident.  Lasalle Park was owned by the City of Buffalo but was operated, maintained, and managed by the County of Erie, both of which were defendants. 

Erie County, under its authority to “regulate special events and permitted uses” in the park, had issued a park use permit to allow the erection of temporary fencing for a “temporary off-leash area,” i.e., a dog park.  The permit was issued to the Veterinary Society and its officials.  The initial permits expired in 2007 but officials in City and County government did not dismantle it and made a “well publicized decision” to allow it to remain in place and be used by the public as a dog park.  The accident occurred in 2008. 

The court rejected the County’s argument that it could not be held liable for the allegedly dangerous condition as it did not own Lasalle Park.  The City of Buffalo moved for dismissal on the basis that, although it owned the Park, it had delegated maintenance responsibilities to the County.  The court held that the City had a duty to maintain the park, and the dog park inside it, in a condition reasonably safe for users.  The City, however, had no duty to warn of an open and obvious condition of the premises.  The motions of the City and the County for summary judgment dismissing the amended complaint were denied.  Hall v. City Fence, Inc., 36 Misc.3d 1237 (Sup.Ct., Erie County, 2012)

Immunity for Conditions in Dog Parks

Illinois has provided that any “municipality or political subdivision allowing dog parks shall be immune from criminal liability and shall not be civilly liable, except for willful and wanton misconduct, for damages that may result from occurrences in the dog park.” Illinois Statutes Chap. 510.5.35

Recreational Use Immunity

We have spoken with a number of people involved in building dog parks who assure us that a recreational use immunity statute in their state will insulate their towns from liability with regard to injuries that may occur in a dog park. Perhaps, but a number of recreational use immunity statutes provide exceptions that may remove immunity as to the town or other legal owner or manager of park property. Such exceptions might include problems as to which the town has or should have knowledge, yet decided to ignore, or modifications to the land which were made negligently. This could, arguably, include the fact that in many states there is no formal legal recognition of public places where leash laws do not apply. The ability of a town to avoid liability under a recreational use immunity statute may well depend on the state where the park is located, as there are many variations in such statutes, and courts have not been consistent in their interpretations of even commonly used provisions.

Charging a fee for access to a recreational area may erase the immunity held by the landowner allowing recreational use. In De Dios v. Massachusetts Executive Office of Environmental Affairs, 23 Mass. L. Rep. 565 (Mass. 2008), a tree branch fell on individuals in the parking area of Quinsigamond State Park. The Massachusetts statute provides for immunity to any “person having an interest in land … who lawfully permits the public to use such land … without imposing a charge or fee therefore….” Because of a $2 parking fee, the Massachusetts Supreme Court declined to grant the state summary judgment on the basis of the immunity statute. Thus, if a town charged a dog park group for use of the park, say in part to cover garbage collection expenses but in part to raise revenue, immunity for the town might be put in jeopardy.

Some states, such as New York, have narrowly drawn recreational use immunity provisions that would probably not cover dog parks. Under General Obligations Law 9-103, an owner of land has no duty to keep premises safe where the owner allows entry to others to train dogs, except where certain conditions apply, including a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” A dangerous activity might include a history of dog bite incidents. Also, the New York statute does not extend its protection beyond the party to whom the owner extends permission. Thus, an incorporated dog park group using city land might still be liable.

Oregon’s recreational use immunity statute (ORS 105.682, 105.688) specifies that the immunity applies to “paths, trails, roads, watercourses and other rights of way … that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes….” Thus, an injury resulting from negligent maintenance of a path improved to provide access might still lead to landowner liability.

In Hatfield v. Penn Township, 12 A.3d 482 (2010), appeal denied 2011 Pa. LEXIS 1693 (July 27, 2011), Alice Hatfield fell and fractured her right ankle and left elbow when she stepped in a hole in a grass and dirt area between two softball fields. The trial court held Penn Township immune from liability under Pennsylvania’s Recreational Use of Land and Water Act (68 P.S. 477-1 – 477-8). The appellate court said that the purpose of this Act was to provide immunity to landowners as an incentive to them in exchange for their tolerance of public access to their lands for recreational pursuits.” It was “not intended to insulate owners of fully developed recreational facilities from the normal duty of maintaining their property in a manner consistent with the property's designated and intended use by the public.” The court concluded that the Act did not insulate the Township from liability since the area where the plaintiff slipped and fell was “a highly developed recreational park.” Since most dog parks will, under such an analysis, be “highly developed,” it seems unlikely that a court following the Hatfield logic would hold a town immune from negligence in the maintenance of a dog park.

In a case arising in Arizona, Armenta v. City of Casa Grande, 2 CA-CV 2000-0138, an injury from a crossbar on a soccer field that fell on a child trying to touch it while riding under it on a bicycle resulted in a lawsuit against Casa Grande. The appellate court determined that installing the goal did not change the park’s recreational character, and the fact that the crossbar was not properly welded, was not enough to make it an attractive nuisance. The city was granted summary judgment. Arizona’s recreational or educational immunity statute, ARS 33-1551, does, however, allow for liability for “willful, malicious or grossly negligent conduct that was the direct cause of the injury to the recreational or educational user.”

In Davis v. State, 144 Wn.2d 612, 20 P.3d 460 (2001), the Washington State Supreme Court interpreted the statutory exception to liability for a “known dangerous artificial latent condition,” where warning signs have not been conspicuously posted (RCW 4.24.210). This court said that all four adjectives had to apply. It is not clear how far this could extend to an injury at a dog park. A fall from some poor landscaping could fit within the definition, but arguably so could a dog bite.

Membership or Permit Requirements

Some public dog parks are beginning to require permits or that users become members of a park organization. A permit for a Chicago dog park will require that a veterinarian provide a user with proof of vaccination for distemper, hepatitis, parainfluenza, parvovirus, bordetella, and leptospirosis. Failure to have a valid permit and registration tag is to be penalized, and after three violations can result in a fine of $1,000 and imprisonment of up to six months. (Administrator, Cook County Department of Animal and Rabies Control, Regulation VIII on the operation of dog friendly areas (DFAs),issued under authority of § 20-15, Cook County Animal and Rabies Control Ordinance).

The NOLA City Bark, a dog park in New Orleans, requires that prospective users fill out a two-page application with identifying and contact information on the handler and vaccination and registration information on the handler’s dogs. The applicant must sign a “release and waiver of liability and assumption of risk,” and agree to abide by a list of rules. Users are issued an electronic card which they swipe to enter the facility, though once inside, the park is policed by users. If a dog becomes aggressive, the card system can be checked to determine who entered the park around the time of the incident.

Disputes Between Cities

Putting a dog park on the boundary with another city can lead to a dispute between cities, as happened in an Ohio case. In July 2007, the city of Rocky River filed a nuisance complaint against the city of Lakewood, seeking an injunction against the operation of Lakewood’s dog park. The dog park opened in 2005 and allowed owners to let dogs run off-leash. The park was less than 400 feet from Rocky River. Nearby Rocky River residents began to complain of loud barking, foul odors, and biting. The trial court granted Lakewood’s motion to dismiss on sovereign immunity grounds.

The Ohio Court of Appeals held that sovereign immunity does not apply to injunctive relief, only to money damages, and held that the trial court erred. The case was reversed and remanded. The decision is wholly procedural. Rocky River v. Lakewood, 2008 WL 5191383 (Ct. App. 2008)

Advertising Dog Grooming Near a Dog Park

An unusual case occurred in Virginia where a dog grooming facility was adjacent to a dog park. Wag More Dogs, LLC, a daycare, boarding, and grooming facility in Arlington, Virginia, had its business next to a place known as the Shirlington Dog Park to residents of the area. Wag More Dogs had a mural painted by a local artist, Mark Gutierrez, on the rear cinder-block wall of its building specifically hoping to draw clients from dog owners who used the Shirlington dog park. Unfortunately for Wag More, the sign violated zoning restrictions on business signs. Because of the violation, the county zoning administrator precluded a final building inspection of the facility that Wag More had been renovating. Wag More covered the mural with a tarp, and the restriction on the building permit was lifted, resulting in a temporary certificate of occupancy.

Wag More sued, alleging that the zoning restrictions violated Wag More’s First Amendment rights. The federal district court determined that the zoning regulations were constitutional, noting they were content neutral and only restricted commercial speech. Though Wag More lost the case, the court acknowledged that as murals go, Wag More’s was “ a relatively attractive one,” that patrons of the dog park rather enjoyed. The court said that if it were reduced to 60 square feet in size, the zoning commission would “likely have no concern with it.” Thus, cropping the mural would seem to be the solution. The photograph of the mural from the decision is shown here. Wag More Dogs, LLC v. Artman, 2011 WL 652473 (E.D. Va. 2011)

Conclusion

Our friend Ronald Keats believes that a very interesting sociological treatise could be written about the politics of dog parks in New York City. One of the authors (John) has been visiting dog parks in the Phoenix area for a number of years, where a very different sociology appears to obtain. The other author (Fran) has been instrumental in developing a dog park for Woodstock, New York, and is painfully aware of the politics behind the creation of a dog park, even in a supposedly liberal and largely dog-friendly community.

Dog parks involve all areas of law—crimes, torts, contracts, governmental authority, on and on. That there are gaps in the spectrum of law when it comes to dog parks is only an indication that this cultural and social phenomenon has existed in most places in the United States for a decade or so. Cultural and social conflicts and constructs will eventually produce more complete and more complex patterns of law, as has always been true of any social development.

This blog was written by John Ensminger and Fran Breitkopf. Thanks to Kingsbury Parker and Ronald Keats for information and suggestions.

Additional Sources: For a collection of dog park rules, see the website of the Houston Dog Park Association, linking to a rules of a number of Texas municipalities. The cartoon appeared in James Thurber's book, Thurber's Dogs, Simon and Schuster, New York, 1955.

Request for Information. We’re going to be drafting some model laws regarding dog parks. If you’re associated with a dog park that has had to deal with an unusual situation, or that has drafted ordinances that are different from those developed by the District of Columbia below, please drop a line to Fran (brightrose22@yahoo.com) or John (jensminger@msn.com). We would be most appreciative.

Appendix. District of Columbia Municipal Regulations, Chapter 7 of Title 19 (Amusements, Parks and Recreations), regarding dog parks is reproduced here in full:

730 Statement of Purpose

731 Dog Parks: General Provisions

732 Dog Parks: Application Process

733 Dog Parks: Site Guidelines and Specifications

734 Dog Parks: Complaints and Enforcement

735 Dog Parks: Operation Rules

799 Definitions

New sections numbered 730 through 735 are added to read as follows:

730 STATEMENT OF PURPOSE

730.1 The District of Columbia's Department of Parks and Recreation herein provides guidelines and rules for the application, development and operation of neighborhood fenced-in, off-leash dog parks

730.2 In October 2005, the Council of the District of Columbia unanimously passed legislation amending the Animal Control Act of 1979, effective October 18, 1979 (D.C. Law 3-30; D.C. Official Code 8-1801 et seq.)(2001) which authorized the Mayor to create fenced-in, off-leash dog parks. The Council recognized that a significant and growing portion of residents needed safe places to recreate and exercise together with their dogs. The creation of dog parks in the District of Columbia requires a certain degree of flexibility, due to the density of buildings as well as the scarcity of District-owned parkland. Successful dog parks require partnerships with the community that enhance and protect the character of the neighborhood and accommodate changing needs.

731 DOG PARKS: GENERAL PROVISIONS

731.1 The Director may establish and maintain areas on District-owned parkland designated for use as dog parks.

731.2 No person shall establish a dog park or charge a fee for use of a dog park on District-owned property without prior approval from the Department.

731.3 No person shall use a dog park for any commercial purpose, however this provision does not apply to dog walkers handling 3 or less registered dogs.

731.4 A dog park shall be open seven (7) days per week during the posted hours for any Department park, except as provided by section 731.5.

731.5 A dog park with lighting shall not remain open later than 10 p.m.

731.6 The Director shall post a notice of a planned dog park closing at each entrance not less than seven (7) days before the period of closure, stating the reasons for the closure. In the case of an emergency, the Director shall post a notice as soon as practicable, and the notice shall state that closure is for emergency reasons.

731.7 All dog parks shall be enclosed by appropriate fencing that is at least five (5) feet in height and includes a double-gated entryway area.

731.8 All handlers use dog parks at their own risk. Neither the District of Columbia or its agencies nor the sponsoring dog park group shall be liable for any injury or damage caused in the dog park.

732 DOG PARKS: APPLICATION PROCESS

732.1 Each dog park shall be sponsored by a dog park group, which shall share responsibilities with the Department for the maintenance, management and enforcement of the site. The dog park group must designate one bona fide District resident to act as primary contact with the Department.

732.2 A dog park group shall contact the Department regarding a proposed location for a dog park, and the Department shall conduct a preliminary review to determine ownership of the proposed site.

732.3 After the Department determines that the proposed dog park is available District-owned parkland, the sponsoring group must submit a formal proposal to the Department stating the reasons for establishing a dog park in the neighborhood. The application shall include letters and/or petitions of support from adjoining Advisory Neighborhood Commissions (ANCs) or other individuals and entities.

732.4 All applications for dog parks shall be noticed in the D.C. Register for a 30 day public comment period and reviewed by a standing committee appointed by the Director, the Dog Park Application Review Committee (DPARC), comprised of the following: (1) the Director or his or her designee from the Department; (2) a representative from the Department of the Environment; (3) a representative from the Department of Health/Animal Control Division; (4) a veterinarian active in canine health in the District of Columbia or a recognized canine behaviorist; (5) a representative from a recognized animal shelter or animal welfare organization located within the District of Columbia; and (6) four representatives from the community, two of whom shall be from sponsoring dog park groups of existing or potential dog parks. Non-agency members of DPARC are appointed by the Director with input from sponsoring dog park groups. DPARC members are not paid and shall serve for two years, but may be reappointed.

732.5 The DPARC shall review and evaluate all applications and make recommendations in writing to the Director within thirty (30) days of the submission of the application. The Director shall consider the application, DPARC recommendation and comments received during the 30 day comment period and respond in writing to the applicant and appropriate ANC within thirty (30) days of receiving the recommendation.

732.6 The Department has three courses of action concerning the review and evaluation of applications. It may:

(a) Accept the application as submitted;

(b) Accept the application provisionally based on modifications to be made; or

(c) Reject the proposal with a detailed explanation.

732.7 If an application is rejected, the dog park group may re-apply to mitigate any defects in the application. If the application is rejected again, the Department may provide assistance in finding suitable alternatives.

732.8 If an application is accepted, the Department and the dog park group shall enter into a Memorandum of Agreement (MOA) regarding financing, roles and responsibilities with respect to the dog park. The Department shall have primary financial responsibility for constructing and maintaining the park, and the dog park group shall have primary responsibility for daily management of the park.

733 DOG PARKS: SITE GUIDELINES AND SPECIFICATIONS

733.1 A dog park shall be no less than five thousand square feet (5,000 sq. ft.) in area where feasible, unless parkland availability in certain neighborhoods precludes meeting this guideline. Triangle parks or other areas of less than five thousand square feet (5,000 sq. ft.) may be considered.

733.2 Best management practices shall be implemented wherever feasible to preserve the surrounding environment. A dog park shall be established according to the following environmental guidelines:

(a) A dog park shall be located on well-drained land to prevent soil erosion with a maximum slope of 20%;

(b) A dog park shall sit at least 50 feet from surface waters that drain into the Potomac and Anacostia Rivers and Rock Creek;

(c) A dog park shall be located near a water supply line for drinking-fountain and maintenance purposes; and

(d) A dog park shall have a surface type that allows for positive drainage away from the site and that helps mitigate waste management issues.

733.3 A dog park shall comply with all codes and regulations as they apply to the Americans with Disabilities Act of 1990, the Clean Water Act (Federal Water Pollution Control Act of 1972), the D.C. Water Pollution Control Act of 1984, and DPR Standards.

733.4 A dog park shall be established on under-utilized land where possible. If such land is not available in a neighborhood where there is a demonstrated need for a dog park, the Director may consider other options about park space, including but not limited to time-sharing arrangements with other park users.

733.5 The Director shall not approve sites deemed unsuitable for dog parks, which shall be determined on a case-by case basis and may include:

(a) Areas designated specifically as playgrounds or children's play areas;

(b) Athletic fields and courts;

(c) Sensitive habitat areas or wildlife areas determined by the District Department of the Environment (DDOE); and

(d) Areas directly upslope from a community garden.

733.6 Each dog park shall have permanent signs, posted in English and Spanish, stating the hours of operation, rules, and regulations for the dog park, and contact information for the Department.

734 DOG PARKS: COMPLAINTS AND ENFORCEMENT

734.1 All complaints or concerns regarding a specific dog park shall be directed to the sponsoring dog park group for resolution. If, after thirty (30) days, the complaint or concern has not been resolved satisfactorily by the sponsor, the complainant and sponsor shall meet with the Director or his or her designee to mediate a solution.

734.2 If the Department or the sponsoring dog park group determines that a dog park is not being managed or maintained properly, potential solutions shall be developed and agreed upon by all parties. Failure to implement the solutions may result in revocation of the dog park group's sponsorship and temporary or permanent closure of the dog park by the Director.

734.3 Sponsoring dog park groups are primarily responsible for enforcement of the operating rules, but may seek the assistance and authority of the Department or other appropriate agencies of the District of Columbia.

735 DOG PARKS: OPERATING RULES

735.1 Each dog park shall have a carrying capacity of one dog per 450 square feet, and the number of dogs allowed in the dog park at any one time shall be posted. Handlers are expected to enforce the carrying capacity to prevent conflicts due to overcrowding and detriment to the environment. When carrying capacity is reached, handlers shall limit their stay to thirty (30) minutes when others are waiting.

735.2 Each handler shall comply with all animal control, dangerous dog and communicable disease laws and regulations before entering a dog exercise area with a dog.

735.3 A handler shall be sixteen (16) years of age or older.

735.4 A child under sixteen (16) years of age may enter a dog park only when accompanied and supervised by an adult.

735.5 A handler shall ensure that each dog within his or her control is wearing a current vaccination and registration tag in a dog park, as well as a current dog park registration tag obtained from the Department of Health Animal Control Division.

735.6 A handler shall leash each dog within his or her control until entering and upon exiting the dog park. To prevent conflicts, a handler shall keep his or her dog off-leash in the dog park, unless no other dogs are present.

735.7 A handler shall collect and bag all solid waste from his or her dog and dispose of it in the designated on-site receptacle in the dog park.

735.8 A handler shall accompany, maintain visual contact, and have voice control over his or her dog(s) at all times.

735.9 A handler shall not have more than three (3) dogs in a dog park at any one time.

735.10 A handler shall not have a dog that is less than four (4) months old in a dog park.

735.11 A handler shall not have a female dog that is in heat in the dog park.

735.12 A handler shall not use a spike or choke collar on a dog in the dog park.

735.13 A handler shall immediately leash and remove from a dog park his or her aggressive dog.

735.14 A handler shall not have a dog designated as a dangerous dog or a potentially dangerous dog in the dog park.

735.15 A handler shall control excessive barking.

735.16 A handler shall report all animal bites to the Department of Health within twenty-four (24) hours in accordance with communicable disease laws.

Section 799 is amended by adding the following definitions:

Aggressive Dog

* a dog whose behavior is characterized by unprovoked snarling, growling, or attack posture. *

Dangerous Dog

* as defined in Section 2 of the Dangerous Dog Amendment Act of 1988 (D.C. Law 7-176), a dog that has bitten or attacked a person or domestic animal without provocation; or, in a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals.

Department

* the Department of Parks and Recreation.

Director -

* the Director of the Department of Parks and Recreation.

District -

* the District of Columbia.

Dog Park

* also known as a dog exercise area; area within District-owned property designated for dog exercise where dogs are allowed off-leash without being considered at-large.

Dog Park Group

* identifiable non-profit or community group, such as an official dog group, Park Partner or Friends of Group, who applies to sponsor a dog park and shares responsibilities with the Department of Parks and Recreation in park operations and management.

Dog Park Registration Tag

* Positive District of Columbia government issued identification that must be worn at all times by each dog using a dog park.

Handler -

* a person in control of a dog who is personally and legally responsible for the dog at all times while using a dog park.

Maintenance

* The activities required to ensure that the dog park is in a state of repair and efficiency at all times as more clearly defined in DPR Dog Park Standards. *

Management

* The day to day oversight of the dog park to insure that all posted rules and DPR Standards are adhered to. *

Enforcement

* The activities required to ensure that General Provisions and Operating Rules provided herein, and DPR standards are adhered to.

Potentially Dangerous

* Dog - a dog that poses a threat to public safety by causing an injury to a person or domestic animal without provocation that is less severe than a serious injury, engaging in encouraged dog fighting, or running at large three (3) or more times within any 12-month period.

Sensitive Habitat Area

* an area highly prone to erosion or the natural habitat of locally important, rare, threatened or endangered species of plan or wildlife as determined by the District Department of the Environment (DDOE).