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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. West v. Municipality of Anchorage (12/21/2007) sp-6213
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RONALD T. WEST, | ) |
| ) Supreme Court No. S- 12164 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-08213 CI |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6213 - December 21, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Robert C. Erwin, Robert C.
Erwin, LLC, Anchorage, for Appellant. Joshua
M. Freeman, Assistant Municipal Attorney and
James N. Reeves, Municipal Attorney,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
EASTAUGH, Justice, dissenting in part.
I. INTRODUCTION
A dog bit or pawed a seven-week-old baby, causing
several scratches along the babys face and forehead. After an
investigation, an Anchorage animal control enforcement officer
concluded that the dog should be classified as a level three
animal, defined by the city code as one that, while under
restraint, inflicts an aggressive bite or causes any physical
injury to any human. An administrative hearing officer upheld
this classification, as did the superior court. The dogs owner
appeals. Because the hearing officer applied the correct burden
of proof and properly interpreted the evidence, and because the
decision is supported by substantial evidence, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
On April 14, 2003, Kandi Trescott was visiting Knights
Auto Radio store in Anchorage and speaking with Jeffrey Knight,
the stores owner and operator, while Trescotts seven-week old
baby, Ethan, lay in a carrier by her feet. The baby was covered
by a blanket when Ronald West entered the store with his black
and white malamute dog, Gummie, on a long leash. Upon entering
the store, Gummie approached the baby. What happened next is in
dispute, though undeniably it resulted in several scratches to
the babys face.
According to Trescott, Gummie inserted his head under
the blanket and grasped the babys head in his mouth. Knight
testified that he did not have a clear view of the baby and did
not observe what Gummie did before walking away with the babys
blanket in his teeth. West, who was further from the baby,
testified that Gummie never bit the baby but merely pushed his
paw under the blanket and rubbed his paw on the babys face enough
to cause the scratches.
There was conflicting testimony as to the babys
reaction. Trescott stated that the baby cried and continued
crying for several minutes until she quieted him down by carrying
him around the store. Wests affidavit, filed two days after the
incident, indicates that he heard the baby cry. An animal
control report also indicates that Knight initially told animal
control that the baby had cried. However, at the administrative
hearing West (and Knight) denied that the baby cried and
testified that the baby was merely in shock.
After receiving Gummies rabies tag information,
Trescott, joined by the babys father, took the baby to see Dr.
Martin Beals. Bealss report described the marks on the babys
head as [s]everal superficial red whelp-like scratch marks on
[the] right cheek and one longer one on the [left] cheek. He
also reported very superficial scrapes on the forehead with mild
redness and wrote, [n]o puncture wounds or deep bruising or
tenderness noted.
B. Proceedings
Trescott called animal control to report the incident
on April 14, 2003, the day the incident happened, and gave a
written statement to Animal Control Officer Richard Gamble.
Later that day Animal Control Enforcement Supervisor Richard Novy
spoke with West by telephone and informed him of the need for
Gummie to be quarantined. Gummie was quarantined for ten days
beginning April 15. Novy continued to investigate the incident
and on April 21 classified Gummie as a level three animal.
Anchorage Municipal Code (AMC) 17.40.020(A)(3) states: Level
three behavior is established if an animal, while under
restraint, inflicts an aggressive bite or causes any physical
injury to any human. This classification has a number of
consequences, including an increase in the yearly licensing fee,
requirements that warning signs be posted on the owners property,
and requirements that the dog be securely enclosed at all times
or, when off the owners property, on a leash six feet or shorter
and muzzled.1, 2
West appealed to an administrative hearing officer.
After multiple continuances, a final hearing was held on April
27, 2004. On May 25, 2004, the Administrative Hearing Officer,
Timothy Middleton, issued a ruling finding that Gummie warranted
level three classification. Middleton specified that animal
control bore the burden to prove the basis of the classification
by a preponderance of the evidence, a burden which he found that
it had met.
West appealed to the superior court, which dismissed
the case for failure to prosecute when West did not timely file a
brief and did not move the court to accept a late-filed brief.
The superior court, apparently without the benefit of any
briefing from West, also found that substantial evidence
supported the hearing officers decision.
III. STANDARD OF REVIEW
Where the superior court is acting as an intermediate
court of appeals, we directly review the agency decision.3
Questions of fact are reviewed for substantial evidence.4
Questions of law involving agency expertise are reviewed using
the reasonable basis test5 because where an agency interprets its
own regulation . . . a deferential standard of review properly
recognizes that the agency is best able to discern its intent in
promulgating the regulation at issue.6 We apply our independent
judgment to issues of law not involving agency expertise.7
Whether the trial court used the appropriate burden of
persuasion presents a question of law to which this court applies
its independent judgment, adopting the rule of law that is most
persuasive in view of precedent, reason and policy. 8
Finally, we review the superior courts decision to
dismiss for failure to prosecute for abuse of discretion.9
IV. DISCUSSION
We conclude that the superior court did not abuse its
discretion in its procedural handling of this case, but decline
to rest affirmance on Wests failure to prosecute. Because the
hearing officers decision is correct on the law and supported by
substantial evidence, we affirm.
A. The Hearing Officer Applied the Correct Standard of
Proof.
West argues that decisions under the animal control
ordinance of the Municipality of Anchorage should utilize the
beyond a reasonable doubt standard of proof instead of the
preponderance of the evidence test that the hearing officer used
in this case. West asserts that beyond a reasonable doubt is the
proper standard because of the remedial or criminal nature of the
actions under the animal control ordinance, and the remedial
penalties that resulted from the level three classification.10 In
so doing he mistakenly conflates the meaning of remedial and
criminal ordinances.
West cites State v. Von Thiele,11 a Washington case
which determined that where a statute is remedial rather than
criminal in nature, the states burden of proof is preponderance
of the evidence. In that case, Von Thiele was charged with
illegal hunting and was forced to pay restitution.12 West
misreads the courts discussion on this matter as distinguishing
criminal or remedial statutes on the one hand and civil on the
other. In fact, the court was distinguishing between criminal
and remedial statutes, holding that the remedial nature of the
restitution requirement in question made it civil in nature:
[T]he plain and unambiguous language of [the restitution
provision] unequivocally demonstrates a legislative intent to
provide a civil penalty system in the form of restitution for the
redress of wildlife values lost because of illegal hunting.
Accordingly, [the restitution provision] is inherently remedial,
rather than criminal, in nature.13 Thus, Von Thiele actually
counters Wests point and undermines his theory that the existence
of penalties renders the animal control ordinance criminal in
nature.
Furthermore, as the municipality notes in its brief,
Alaska case law similarly distinguishes between sanctions that
are remedial and criminal in nature. In Johansen v. State14 we
distinguished between the procedural safeguards afforded
defendants in civil contempt and criminal contempt proceedings,
holding that civil contempt needed to be proved only by a
preponderance of the evidence.15
No Alaska case law supports Wests position that the
classification hearing was criminal in nature, or that it should
result in a beyond a reasonable doubt standard of proof. West
cites Sinclair v. Okata,16 where the federal district court
characterized an Anchorage ordinance on animal control as
unequivocally aimed at preventing attacks and bites by dogs.17
However, Sinclair said nothing about the statutes criminal nature
or the burden of proof required for proving an injury in an
administrative hearing. Indeed, the dog owner in Sinclair was
held negligent per se for injuries caused by his dog when it was
not under voice control.18
Finally, the context of the ordinances confirms that
the animal control regulations are not criminal in nature. The
entire structure for providing an animal control hearing on an
animal classification in AMC 17.05.100 utilizes the
administrative adjudication procedures of AMC 03.60. The civil
nature of the ordinance is further clarified by the fact that the
former provision on crimes and penalties in AMC 17.40 now is
contained in the criminal provisions of the AMC,19 separating it
from the rest of animal control regulations. The criminal
provision of the animal behavior regulation provides that an
owner is subject to criminal penalty if she or he violates with
criminal negligence the requirements of the animal classification
pertaining to animals classified at level three or higher.20
Thus, while Gummies initial classification is an administrative
matter conducted under standard administrative procedures, any
alleged criminal violation of the terms of the classification by
West would result in a separate trial in which West would be
afforded full criminal defendant protections.
Because the hearing classifying Gummie was not a
criminal proceeding but instead an administrative one, the
hearing officer properly used the preponderance of the evidence
standard.
B. The Hearing Officer Properly Interpreted the
Ordinance.
West argues that the hearing officer improperly
interpreted the ordinance guiding classification of level three
animals. The relevant provision states: Level three behavior is
established if an animal, while under restraint, inflicts an
aggressive bite or causes any physical injury to any human.21
West argues that the clause causes any physical injury to any
human should be interpreted as requiring that the animal
aggressively caused any physical injury.
West relies on the statutory construction rule of
ejusdem generis, which has been explained as follows:
[W]hen a general word or phrase follows a
list of specifics, the general word or phrase
will be interpreted to include only items of
the same type as those listed. For example,
in the phrase horses, cattle, sheep, pigs,
goats, or any other farm animal, the general
language or any other farm animal despite
its seeming breadth would probably be held
to include only four-legged, hoofed mammals
typically found on farms, and thus would
exclude chickens.[22]
However, as the municipality notes, the language of AMC
17.40.020(A)(3) does not contain a list of specifics preceding
the phrase or causes any physical injury . . . . Instead, only
the specific act of an aggressive bite precedes or causes any
physical injury to any human. We agree that this lack of a list
means that ejusdem generis does not apply.
Additionally, the plain meaning of the sentence is not
ambiguous, and thus no statutory aids need apply. In Crump v.
State23 we clarified the role of ejusdem generis when we declined
to apply the canon to a kidnapping statute:
Ejusdem generis is not a rule of law,
but rather an aid to the interpretation of
statutes that are ambiguous or that leave
unclear the legislative intent. Here ejusdem
generis is not appropriate because the
statute is not ambiguous.[24]
Similarly, there is nothing about the wording of AMC
17.40.020(A)(3) that makes it ambiguous. The terms aggressive
bite and physical injury are both defined in the ordinance.25
Finally, it is grammatically incorrect to conclude that the word
aggressive modifies any part of the phrase or causes any physical
injury to any human.
Reading level three classification as including any
physical injury to any human also fits logically within the
context of the classifications. The less-sanctioned level two
behavior is established if an animal bites or causes physical
injury to any domestic animal, or if an unrestrained animal kills
any unrestrained domestic animal.26 Thus, at level two, no injury
to any human is contemplated. Similarly, level four behavior
occurs when an unrestrained animal inflicts the same harm
described in level three.27 Level five behavior is established if
[a]n animal, regardless of whether it is restrained, causes
serious physical injury or the death of any human . . . .28 As
would be expected, levels four and five contemplate more serious
behavior than occurred here, and level two contemplates less
serious behavior.
West argues that the hearing officers interpretation
could result in an animals classification for injuries that it
causes inadvertently. But the ordinance mitigates this risk by
providing a list of nine exceptions to the classifications29
including injury resulting from the animal acting out of pain,
protecting its young, playing with the family that owns it, and a
general exception for when [t]he decision not to classify
reasonably serves and promotes justice, fairness, and the
purposes and intent of this title, the protection of public
health, safety and welfare, and the humane care and treatment of
animals.30 Given the plain meaning of AMC 17.40.020(A)(3), its
context, and the exceptions to the classifications, the hearing
officer properly interpreted the ordinance to apply to any
physical injury to a human.
C. The Hearing Officers Decision Was Supported by
Substantial Evidence.
In order to uphold the administrative decision, we must
determine whether the hearing officers decision was supported by
substantial evidence. As noted above, level three classification
required a determination that an animal under restraint caused
any physical injury to any human.31 The municipal code defines
physical injury as an impairment of physical condition or pain
that is accompanied by scrapes, cuts, punctures or other evidence
of similar injuries.32
It is uncontested that (1) Gummie was restrained33 and
(2) Gummies actions resulted in several scratches to the babys
face, though they were not deep.34 All parties agree that Gummie
did not display aggressive characteristics such as snarling,
baring teeth, growling, [or] snapping. Thus, Gummie did not
inflict an aggressive bite,35 but inflicted physical injury if the
scrapes were accompanied by pain.
The witnesses disagreed about the babys reaction, which
is important for satisfying the pain element of the physical
injury definition. Trescott testified that her baby was crying,
while Knight and West testified that he did not cry out and was
merely in shock. The hearing officer found Trescotts testimony
on the babys reaction to be more credible because she had a
better view. On appeal, West contends that this is false because
Knight was standing next to the baby. However, Knights own
testimony indicated that he believed Trescott had the better
view:
I think [Trescott] may have seen more [than
me]. She was pretty concerned about the
baby. Where the baby was and everything.
She was constantly looking down at the baby
while she was talking to me . . . .
Additionally, testimony that the baby remained silent
is contradicted by other parts of the record. In Wests affidavit
to Anchorage Animal Control, made two days after the incident, I
was unaware there was even a baby present until the baby cried.
Similarly, the animal control report of a conversation with
Knight the day after the incident states that [Knight] said West
came thru the door with his dog and then when he (Knight) heard
the infant start crying he looked over in the direction of the
infant, and saw the dog with the blanket in its mouth.
Finally, the hearing officers decision involves a
credibility determination that we leave to the trier of fact.36
West cites several cases from foreign jurisdictions to argue that
the hearing officer should be required to articulate more of his
reasoning. In this case, the hearing officer did clearly
articulate his reasoning Trescott was in the best position to
view the baby and thus was more credible on the issue of the
babys injuries and reaction. Moreover, we have stated in workers
compensation cases that credibility determinations do not require
substantial findings of fact on the record:
Credibility decisions regarding witness
testimony, however, are uniquely within the
province of the Board and it is not our task
on review to reweigh them. There is less
need, then, for extensive findings of fact
regarding witness credibility. Our task when
reviewing a Board decision is to ascertain
whether it was based upon substantial
evidence, evidence which a reasonable mind
might accept as adequate to support a
conclusion.[37]
The hearing officers conclusion that the mother was more
observant of her baby at the time of the incident and more
accurately remembered her babys reaction is supported by
substantial evidence. Trescott testified, My memory is not
faulty. That memory is never going to go out of my mind. I will
probably remember that when my son is 30 years old, how lucky I
was that that dog did not decide to bite down and crush Ethans
skull. Certainly a reasonable mind could have been persuaded by
that testimony.
The hearing officer concluded that Gummie, while
restrained, caused a physical injury (the uncontested scrapes)
which resulted in pain (as evidenced by the crying). Both
elements of this determination were supported by substantial
evidence and are thus affirmed.
V. CONCLUSION
We AFFIRM Gummies classification because the decision
of the hearing officer was correct on the issues of law and
supported by substantial evidence.
EASTAUGH, Justice, dissenting in part.
To illustrate my disagreement with what the court seems
to say about the municipalitys animal control ordinance, consider
two leashed dogs, both walking with their masters on a municipal
sidewalk. The first, without provocation, suddenly administers
an aggressive bite to a pedestrian. The second clumsily and
without aggression bumps into a pedestrian and knocks him down,
causing a painful break in the skin. No doubt the municipality
has a legitimate interest in the safety of both pedestrians, and
can regulate the behavior of both animals.
It should be obvious that there are legally significant
distinctions between the conduct, behavior, and mental states of
the two animals. Likewise, there are legally significant
distinctions between the probability and magnitude of risk each
animal poses and between the consequences to their respective
victims. But the subsection of the ordinance pertinent here,
Anchorage Municipal Code (AMC) 17.40.020(A)(3), draws no such
distinctions. It treats the aggressive biter the same as the
clumsy oaf. It does so because subsection .020(A) classifies the
aggressive biter the same as an animal that causes physical
injury to any human, and because AMC 17.05.010 defines physical
injury to include scrapes, cuts, and similar injuries.1
It is equally undiscriminating in requiring the same
protective measures for each animal. Both the biter and the oaf
must now wear muzzles when they are not on their owners
property,2 even though the oaf did not use his teeth or mouth (or
even his paws).
I agree with most aspects of todays opinion but write
separately to address two significant problems inherent in AMC
17.40.020(A)(3). Both raise questions about the rationality of
the ordinances behavioral classifications and the required
remedial measures. And both problems make arbitrary enforcement
likely, if not inevitable.
West tersely but adequately raises the classification
issue by arguing that it makes no sense to classify Gummie as
level three for having scratched the baby with his paws, without
aggressively biting the infant. West also argues that physical
injury can flow from very minor to major without aggression or
intent by the animal. He contends that [t]he classification
would be proper if the injury was aggressively caused which would
clearly rule out incidental or accidental contact resulting from
the dog stepping on, pushing, playing [with] or even licking a
child. Because the hearing officer found that Gummie
administered the marks with his mouth, and that there was thus a
bite, Wests assertion that the scratches were pawmarks is
unavailing absent clear error. West does not challenge the
rationality of muzzling Gummie, even though he argues that Gummie
must have used his paws, rather than his mouth. The essence of
Wests classification argument nonetheless remains viable because
the ordinance treats the aggressive dog the same as the
unaggressive dog. It treats the soft-mouthed retriever that
accidently scratches someone with its teeth the same as the dog
that aggressively bites its victim.3
West also contends that aggressive in AMC
17.40.020(A)(3) modifies both bite and any physical injury.4 The
court rejects that contention.5 Because Wests reading is so
obviously contrary to the plain words of the ordinance, I agree
with the courts reading of the ordinance.
But West also argues that the reading the hearing
officer and superior court gave the subsection, and thus the
reading this court adopts today, makes no sense. Because the
subsections text mandates the reading this court gives it here,
Wests argument necessarily raises the question whether the
ordinance as written makes sense. The court does not squarely
hold that it does, but its opinion implies that the subsection
rationally treats an animal that administers an aggressive bite
the same as an animal that causes any physical injury to any
human.6 Thus, it asserts that reading the level three
classification to include any physical injury to humans fits
logically within the context of the classification.7
I disagree with this assertion. If future readers
would regard this assertion as mere dictum, and would not be
deterred from challenging the substance of the ordinance on
grounds of irrationality, no further discussion would be needed.
But there is a danger the courts words might be read by future
courts, and by the municipality itself, as an endorsement of the
subsections validity. Moreover, there is a danger the courts
words today would be read to apply even to animals whose behavior
is unambiguously passive and innocent. And indeed, the seeming
precision of the subsections words, in context of the seemingly
comprehensive ordinance, might give the appearance that the
animal control law was carefully crafted.
The court asserts that the classification exceptions
prevent the ordinance from being improperly applied.8 But no
specific exception applies to the clumsy oaf that accidentally
trips the pedestrian and causes physical injury. And the
ordinances general exception, AMC 17.40.020(B)(9), does not
adequately mitigate the risk of misclassification. The general
exception gives the animal control officer authority to refrain
from classifying an animal even if it engaged in behavior
specified in subsection .020(A) if the officer determines that
[t]he decision not to classify reasonably serves and promotes
justice, fairness, and the purposes and intent of this title, the
protection of public health, safety and welfare, and the humane
care and treatment of animals.9 Because this exception fails to
articulate a meaningful standard that could be used to evaluate
whether a misclassification has occurred, I do not see how this
exception mitigates the risk of misclassification.
This standardless exception also necessarily invites
arbitrary enforcement. Perhaps the municipality would be
reluctant to require the clumsy or exuberant animal to be
muzzled, and would even be reluctant to classify it the same as
the aggressive biter. But the general exception contains no
principled basis for avoiding classifications that either are
required by the plain words of subsection .020(A) or are
consistent with the eight other exceptions in subsection .020(B),
some of which contain limitations on the exceptions.
The other classification levels are equally flawed.
For example, level four deals with unrestrained animals. There
is no exception for the exuberant, unleashed dog that trips a
hiker, causing a minor laceration; the ordinance mandates a level
four classification for this animal, just as it does for an
unleashed dog that aggressively bites.10 It is facially
arbitrary and irrational to treat the aggressive animal the same
as the nonaggressive animal, and to treat inadvertently caused
injuries the same as those caused by aggression. I therefore
dissent from the courts opinion to the extent it states that
subsection .020(A)s classification scheme makes sense or that
classifying as level three an animal that unaggressively causes
any physical injury fits logically within the context of the
classification.
_______________________________
1 See AMC 17.40.040, .090.
2 An animal classified as level three will not
necessarily be subject to all of these restrictions for the
remainder of its life. A level three classification may be
removed, reduced, or modified upon satisfaction of several
requirements including the passage of two years without further
incident, completion by dog and owner of an obedience training
course, and the payment of fees. AMC 17.40.085.
Reclassification can result in the lifting of all restrictions
except the requirement that the animal remain in a secure
enclosure when on the owners property. AMC 17.40.085(B).
3 Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1253
(Alaska 2007).
4 Id.
5 State v. Pub. Safety Employees Assn, 93 P.3d 409, 413
(Alaska 2004).
6 Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
161 (Alaska 1982).
7 See Thoeni, 151 P.3d at 1253.
8 Fernandes v. Portwine, 56 P.3d 1, 4 (Alaska 2002)
(quoting Spenard Action Comm. v. Lot 3, Block 1 Evergreen
Subdivision, 902 P.2d 766, 774 (Alaska 1995)).
9 See G‚czy v. State, Dept of Natural Res., 924 P.2d 103,
104 (Alaska 1996).
10 West also cites the due process clause of the Alaska
Constitution to support this point. West offers no support for
the assertion that the due process clause entitles him to a
specific standard of proof in an animal control case and we
therefore deem the argument to be waived. Hikita v. Nichiro
Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1180 n.39 (Alaska 2000)
(concluding issue waived where party offered no support for
assertion).
11 736 P.2d 297, 300 (Wash. App. 1987).
12 Id.
13 Id. at 301.
14 491 P.2d 759 (Alaska 1971).
15 Id. at 766-67. The burden to show non-compliance is
borne by the plaintiff. However, once non-compliance has been
proven by a preponderance of the evidence, the burden shifts to
the defendant to prove, by a preponderance of the evidence, an
inability to comply with the order.
16 874 F. Supp. 1051 (D. Alaska 1994).
17 Id. at 1063.
18 Id. at 1064.
19 This provision can now be found at AMC 08.55.060.
20 Id.
21 AMC 17.40.020(A)(3) (emphasis added).
22 Blacks Law Dictionary 556 (8th ed. 2004).
23 625 P.2d 857 (Alaska 1981).
24 Id. at 859 (citations omitted).
25 AMC 17.05.010. The definition of physical injury is
discussed at greater length below. See infra Part IV.C.
26 AMC 17.40.020(A)(2).
27 Level four behavior is established if any of the
following occur:
a. An unrestrained animal inflicts an aggressive bite
or causes physical injury to any human; or
b. An unrestrained animal kills a domestic animal
that is restrained; or
c. An animal, regardless of whether it is restrained,
for the second time injures or kills a domestic
animal.
AMC 17.40.020(A)(4).
28 AMC 17.40.020(A)(5)(a) (emphasis added).
29 AMC 17.40.020(B).
30 AMC 17.40.020(B)(9). West did not appeal the
discretionary determination not to except Gummie from the
classification on this basis.
31 AMC 17.40.020(A)(3).
32 AMC 17.05.010.
33 The fact that Gummie was on a leash was apparently
uncontested at the hearing and is not on appeal now.
34 In Wests brief he focuses on the alleged manner in
which Gummie caused the scratches. Because the level three
classification did not depend on whether or not the injury was
caused by Gummies paw or his teeth, it is irrelevant whether this
specific element of the officers decision was supported by
substantial evidence.
35 See AMC 17.05.010. If Gummie had inflicted an
aggressive bite, the municipality would not have had to prove any
physical injury.
36 See Fyffe v. Wright, 93 P.3d 444, 450-51 (Alaska 2004).
37 Whaley v. Alaska Workers Comp. Bd., 648 P.2d 955, 958
(Alaska 1982).
1 The applicable definition does not distinguish between
broken-skin injuries caused by paw, mouth, or exuberant behavior.
It defines physical injury as an impairment of physical condition
or pain that is accompanied by scrapes, cuts, punctures or other
evidence of similar injuries. AMC 17.05.010.
2 AMC 17.40.040.
3 The hearing officer found that Gummie administered a
bite that was not aggressive.
4 AMC 17.40.020(A)(3) provides:
A. Classifications. Subject to the
authority of the chief animal control officer
under subsection B below, an animal may be
classified based on one of the following
levels:
. . . .
3. Level three behavior is established
if an animal, while under restraint,
inflicts an aggressive bite or causes
any physical injury to any human.
5 Slip Op. at 9.
6 Slip Op. at 9-10.
7 Slip Op. at 10.
8 Slip Op. at 10-11. The court states that the nine
exceptions includ[e] injury resulting from the animal . . .
playing with the family that owns it. Slip Op. at 10. There is
no playing exception as such, and the exception for the owner and
the owners family expressly excludes a minor who is not involved
in training or competing with the animal. AMC
17.40.020(B)(8)(b). Consequently, the family dog that, without
aggression, harms a family minor during play is not excepted.
9 AMC 17.40.020(B)(9).
10 AMC 17.40.020(A)(4)(a); AMC 17.40.020(B).
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