Opinion
Rehearing Denied March 11, 1975.
Litvak, Schwartz & Karsh, P.C., Lawrence Litvak, Denver, for plaintiffs-appellees.
Wood, Ris & Hames, P.C., William K. Ris, Eugene S. Hames, Denver, for defendant-appellant.
RULAND, Judge.
In a personal injury action, defendant City of Northglenn (Northglenn) appeals from a judgment entered on a jury verdict against both Northglenn and defendants James and Kathleen Sherman. Northglenn contends, Inter alia, that its motion to dismiss plaintiffs' complaint as to Northglenn pursuant to C.R.C.P. 12(b)(5) should have been granted. We agree and reverse.
This action was commenced by Patricia Whisnant in her own right and as mother and next friend of Anna Michelle Ochoa, a minor. The Shermans were residents of Northglenn and owned an Irish setter dog. Viewing the allegations relative to the claims against Northglenn as true, See Cook v. Denver, 128 Colo. 578, 265 P.2d 700; Millard v. Smith, 30 Colo.App. 466, 495 P.2d 234, prior to June 25, 1972, the Shermans' dog had attacked a number of children. The dog was therefore impounded by Northglenn pursuant to a city ordinance which provides for a 10-day confinement of does who have bitten any person, in order to determine if the dog is rabid. This ordinance also requires that Northglenn seize and impound any dog who is vicious, a vicious dog being defined as one that attacks human beings without provocation either on public or private property.
According to the complaint, after the period of impoundment expired, the minor plaintiff, while playing in Shermans' backyard, was bitten on the face by their dog. As a result she suffered serious injuries. The complaint alleged that Northglenn was negligent in releasing the dog to the Shermans after its confinement when it knew the dog was vicious and that such action was in violation of its own ordinance. On this basis, plaintiffs requested damages.
Contending, Inter alia, that it cannot be held civilly liable for failure to enforce an ordinance, Northglenn moved to dismiss the complaint against it. This motion was denied by the trial court. Northglenn renewed its motion to dismiss at the close of plaintiffs' evidence and made timely motions for directed verdict and for judgment notwithstanding the verdict, which were also denied by the trial court. The jury returned a verdict against all defendants in the amount of $8,000 for the minor plaintiff and in the amount of $3,000 for her mother.
Relying on Addington v. Town of Littleton, 50 Colo. 623, 115 P. 896, Northglenn's primary contention is that, under the circumstances presented, it cannot be liable for breach of its own ordinance or negligent enforcement thereof. We agree.
In Addington, action was brought to recover damages for injuries inflicted by a vicious dog running at large in violation of a town ordinance. It was alleged that the town failed to enforce its ordinance by knowingly permitting the vicious dog to run at large. The trial court's dismissal of the complaint on demurrer was affirmed on appeal. Our Supreme Court held that the town was not liable for negligent enforcement of its ordinance since the control of dogs was a governmental function. We view that case as dispositive of the case at bar.
Based on statements of plaintiffs' counsel in chambers to the effect that Northglenn had insurance coverage, the trial court in its ruling on the motion to dismiss at the close of plaintiffs' evidence held among other things that Northglenn had thereby waived any defense of governmental immunity. Plaintiffs urge the same proposition here.
Assuming, without deciding, that the fact of insurance coverage was properly before the court, it would affect Northglenn's liability only if the incident had occurred after June 30, 1972, the effective date of the 'Colorado Governmental Immunity Act,' s 24--10--101 et seq., C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 130--11--1 et seq.). In brief, s 24--10--104, C.R.S.1973, provides that if a public entity purchases liability insurance, it waives the defense of sovereign immunity. However, we may not apply that statute retroactively. See s 24--10--102, C.R.S.1973, and California Co. v. Colorado, 141 Colo. 288, 348 P.2d 382; See also Allen v. City of Ogden, 210 Kan. 136, 499 P.2d 527.
In view of our holding that plaintiffs' complaint against Northglenn should have been dismissed, we need not consider the other issues raised by Northglenn in this appeal.
Judgment reversed and cause remanded with directions to dismiss the complaint against Northglenn.
COYTE and VAN CISE, JJ., concur.