HB 2757 Text

H. B. 2757

          (By Delegates Sponaugle, Lynch, A. Evans and Andes)

          [Introduced February 27, 2013; referred to the
          Committee on the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §19-20C-1, §19-20C-2, §19-20C-3 and §19-20C-4, all relating to the creation of a civil cause of action in magistrate court for the purpose of seeking euthanization of a violent dog; elements of action; proceeding; attorney fees; limitations of action; and order of the court.
Be it enacted by the Legislature of West Virginia:
     That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-20C-1, §19-20C-2, §19-20C-3 and §19-20C-4, all to read as follows:
ARTICLE 20C. FELICITY'S LAW.
§19-20C-1. Short Title.
_____This article may be known and cited as "Felicity's Law".
§19-20C-2. Purpose.
_____The purpose of this article is to protect the public by providing a private cause of action seeking euthanasia of a dog in magistrate court to a person who has been attacked and injured by the dog causing damages in the amount of $1,000 or greater or who has been attacked by the dog and the dog had attacked a person causing injury within the previous twenty-four months.
§19-20C-3. Procedure; petition to magistrate court; elements of action; burden of proof; attorney fees; limitation of action.
_____(a) A person seeking relief under this article may apply to the magistrate court in the county where the dog owner resides, or the county where the injury occurred, by verified petition setting forth and affirming the following:
_____(1) That the owner of the dog resides in the county where the petition is filed or the attack giving rise to the action occurred in the county where the petition is filed;
_____(2) That the petitioner was:
_____(A) Attacked by the dog and the attack resulted in injuries and damages in the amount of $1,000 or greater; or
_____(B) Attacked by the dog and the dog had engaged in a separate attack causing injury within the previous twenty-four months; and
_____(3) That the petitioner was not at fault in the attack.
_____(b) The petition and summons shall be served on the respondent in the manner set forth in Rule 4 of the West Virginia Rules of Civil Procedure.
_____(c) The petitioner must prove the allegations in the petition by clear and convincing evidence.
_____(d) The prevailing party is entitled to an award of reasonable attorney fees and costs.
_____(e) The limitations of the cause of action in this article are as follows:
_____(1) Jurisdiction is exclusively in magistrate court;
_____(2) The magistrate serves as the trier of fact;
_____(3) The disposition by the magistrate court is final and binding;
_____(4) Relief, other than attorney fees and costs in subsection (d) of this article, is limited to an order directing that the owner of the dog have the dog euthanized; and
_____(5) The cause of action provided by this article does not establish statutory liability nor does it supplant a common law negligence cause of action.
§19-20C-4. Order of the magistrate court.
_____(a) If the court finds by clear and convincing evidence that the dog who is the subject of the action under this article has attacked the petitioner and caused damages in the amount of $1,000 or greater or that the dog attacked the petitioner and within the twenty-four month period prior to the attack had engaged in a separate attack causing injury, then the court shall order the owner of the dog to have the dog euthanized.
_____(b) The magistrate court shall issue and file a written order that sets forth the following:
_____(1) Findings of fact and conclusions of law; and
_____(2) If the court orders euthanasia, a specific date upon which the owner of the dog must have the euthanasia performed and a direction that documentation be mailed to the petitioner and filed with the court by a specific date showing that the procedure was performed.
_____(c) If the court does not order euthanasia, the order shall dismiss the petition with prejudice.
_____(d) The magistrate court may award reasonable attorney fees and costs to the prevailing party.
_____
     NOTE: The purpose of this bill is to protect the public by providing a private cause of action seeking euthanasia of a dog that has attacked a person and caused damages in an amount of $1,000 or greater or has attacked a person and, within the previous twenty-four months, had engaged in a separate attack. The bills also provides a magistrate the discretion to award attorney fees and costs. The bill is titled "Felicity's Law" because Felicity was the two year old victim of a vicious dog attack whose parents sought judicial relief under §19-20-20, a statute providing for the destruction of vicious dogs. The West Virginia Supreme Court, in a 2012 decision, denied the relief sought by Felicity's parents, holding that §19-20-20 allows the destruction of a dog as a result of a criminal proceeding and does not authorize a private cause of action.

     This article is new; therefore, it has been completely underscored.

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