Larsen v. City of Cheyenne

In Larsen v. City of Cheyenne, 626 P.2d 558 (Wyo. 1981) the primary issue was whether a city dog pound should be liable for releasing a dog known to be vicious. The action was founded in negligence, based upon the alleged violation of certain city ordinances. Id. at 560. The affirmance of the summary judgment entered in favor of the defendant city was based upon the conclusion that the particular ordinances had not created a duty on the part of the city. Id. at 560-61. In reaching that conclusion, however, the Court noted that a duty on the part of the city to conduct the pound activities in a manner that would protect the general public was not just inferable from the ordinances, but could arise under a standard negligence theory: "Appellant's argument also pertains to a contention that there was a failure on the part of appellees to act reasonably under the circumstances. The question of reasonableness comes into play in a negligence action in connection with the violation of a duty. If there is no duty, the proposition is not reached. The elements of a negligence action are: a duty on the part of the defendant, failure to perform the duty, proximately causing damage to plaintiff. Danculovich v. Brown, Wyo., 593 P.2d 187 (1979)." (Larsen, 626 P.2d at 560 n.2.) Finally, in a brief analysis of the strict liability theory of recovery, the Court also found that the city was neither the owner nor the keeper of the dog at the time of the biting incident. Id. at 560. The Court acknowledged our awareness of the serious injuries and even death caused by dogs. Nevertheless, we concluded that "correctional action is a legislative matter," and we noted that in 1979 the state legislature had passed Wyo. Stat. Ann. 11-31-301 (Cum.Supp. 1980), which provided as follows: "(e) Any dog attacking any person in a vicious manner may be destroyed and the owner or custodian of the dog may be fined not more than two hundred dollars ($ 200.00). Proof of the fact that the dog has bitten or attacked any person at any place where a person is legally entitled to be is evidence that the dog is vicious within the meaning of this act." (Larsen, 626 P.2d at 561 n.3.)