Municipalities Liability for Damage Caused by Stray Dogs

According to the Constitution Bulgaria is a unitary state with local self-government. The main regional administrative unit is the municipality. Local authorities have both right and obligation to govern the public relations within the law and to bare its own responsibility for fulfilling these duties.

The current legislation regulating the local self-government differs significantly in comparison with the old one. The municipality is now governed by publicly elected authorities or by its citizens through the forms of direct democracy. Thus, the municipality is responsible for its unlawful actions or omissions and the caused damages.

One of the most important tasks of the municipality is to guarantee its citizens a calm and healthy atmosphere. However, this vital task is not always executed with adequate care and enough efficiency. Hence, numerous problems may occur locally, which can lead to serious aftermaths affecting the life and health of people.

Such a problem, which is a serious threat to our health on a daily basis are the stray dogs. The issue has been underestimated for too many years and nowadays it is getting worrying proportions. There are plenty of unclear questions regarding the problem with stray dogs, their attacks and bites. Even the term “stray dogs” is uncertain. There is not unanimity if stray dogs are possessions, and if yes – who bares the responsibility for their attacks and the caused damages and who is the one responsible for taking care of them. The legislator has not been consistent during the years, either. The first legal act governing this issue is the Veterinary Activities Act from 1999 (hereinafter referred to as “VAA”). Later, this Act has been amended by the new Veterinary Activities Act from 2005. The 1999 Veterinary Activities Act in Art. 35 and Art. 70 sets out that the major of a municipality is the one responsible for taking care of stray dogs, thus having the duty to manage the whole process. Part of this legislation was transported to the new Act.

During last years the number of cases filed against municipalities for attacks of stray dogs has significantly arisen. The reason behind that fact could be easily found in the nature of the animals – despite being friendly in general, when left without food and shelter stray dogs can be often unexpectedly aggressive. The legislator has expressed his concern towards animals by adopting the special Animals Protection Act in 2008. However, this Act does not regulate the described stray dogs issues and, thus, does not provide for any specific measures. Current regulatory framework assigns municipalities the duties of catching, emasculating and isolating stray dogs, and assuring that enough funds are being provided for fulfilling the necessary veterinary procedures, pursuant to Decree-Law No. 41/2008 of 10 December 2008 of the Minister of agriculture and forestry. According to VAA stray animals are all animals born homeless, lost or abandoned by the owners, and animals which do not inhabit any house, farm or a special place. In general, such stray animals (in particular stray dogs) must be temporarily accommodated in specifically designed isolators, provided and owned by the municipalities. The increased frequency of stray dogs attacks raise the question if there are enough and efficient measures to protect citizens from the everyday threats coming from stray dogs. Consequences from these attacks could be sometimes unexpectedly serious and even lethal. Additional questions about the potential sanction against municipalities and the procedure for attacked citizens to be compensated reasonably arise. The answers are still debatable and, therefore not only the legal framework should be analyzed, but also the case law applying this framework.

In order to answer all the mentioned questions and issues, an explanation about the characteristics of the duties concerning stray dogs is a must. The actions of municipalities towards stray dogs could be described as an administrative activity. In this case, the liability of the municipalities for their actions and/or inactions should be sought under the scope of the State and Municipalities Liability Act (hereinafter referred to as “SMLA”). On the other hand, if these duties are accepted as non-administrative activities, then, the procedure bringing the liability of municipalities for their inactions (and the followed stray dogs attacks) would be governed by the default rules of civil and private law, and more precisely – by the Obligations and Contracts Act (hereinafter referred to as “OCA”). Establishing a shelter for stray dogs and the care for them is definitely not an administrative duty. Therefore, the liability procedure against municipalities is believed to be civil tort liability.

Dealing with the current topic presumes a clarification about the borders within which Municipalities Liability could be sought. Since there is no legal definition of stray animals, the definition is to be brought out by interpretation of the law. It is here worth mentioning the case law, which determines that if the attack is committed in а public place, and no people showed any signs of ownership towards the dogs, it is a clear indication for stray dogs attack. (As decided in Judgment No. 262 of 11 May 2010 in case No. 1155/2009 of High Court of Cassation). Therefore, if the attacking dog inhabits public places and there are no signs of people owning that dog, the Municipality where the aggression has happened is liable for the suffered damages. As mentioned, the procedure should be filed before a Civil Court, and local jurisdiction is granted to the court of the place of the offence.

The question about the nature of the lawsuit against the Municipality has also been a controversial one. Since, the High Court of Cassation has excluded the possibility for a legal entity to bear the liability under Art. 45 OCA, there are only two hypothesis left. First one is the liability of a grantor under Art. 49 and Art. 45 OCA. The second one is the liability of an owner under Art. 50 OCA. Dealing with this problem, the case law has taken the following direction – the Municipality does not carry out directly this specific activity, but performs its legally implied duties through a specially established municipal undertaking. Hence, Municipality liability is brought as the liability of the grantor of the municipal undertaking under Art. 49 and Art. 45 OCA. In such regard is the consistent case law of the High Court of Cassation (Case No. 1155/2009 and Case No. 2398/2008).

As for the nature of the compensation – pursuant to the mandatory directions given by the High Court with its Decree No. 4/1968 – the Municipality is liable for all direct and immediate damages, which can be both material and non-material. According to this Decree all damages that have occurred or will occur as direct and immediate consequences and are in continuous casual link with the damage are to be compensated. Thus, not only the cost for medicines and hospitalization are to be covered by the Municipality, but also a compensation for all the suffered pain, fear and anxiety. As it often happens after such incidents the attacked people are afraid to go out alone. When calculating the compensation, except for the visible wound the Court must take into consideration also the caused pain and suffering. It is not uncommon for the psychological marks and consequences to be more serious and sustained than the physical ones. For the same reason it is important for the Court to use its discretion given in Art. 52 OCA in full volume.

After the issues about unlawful conduct, injury and causation link were discussed in details in the previous paragraphs, the problem about guilt needs to be further elaborated. When tort is the case, according to Art. 45 OCA the guilt is always presupposed and it is often hard to prove the lack of such. In that respect, what is the case if the liability is brought under the procedure of Art. 49 and Art. 45 OCA? This kind of liability is determined in the mid 20th century by the High Court of Cassation as warranty-collateral liability. As set up in Decree 7/1958 of the High Court, such a liability differs from both contractual and tort liability. The High Court accepts that the contracting principal does not perform any unlawful acts. As a matter of fact, his/her actions are seen as plausible – the contracting principal assigns a task in order to fulfill his/her governmentally set duties. Thus, the High Court concludes that assignation of a task to another person is not a tort and no guilt could be sought in the contracting principle. This provision is interpreted in connection with Art. 54 OCA which provides the possibility for reimbursement of the paid compensation due to a reverse liability of the contracting executor. If the contracting principal were liable for what the executor did, then the principal would not be entitled to use the reverse liability claim against the executor. On this ground, the High Court believes that the liability under Art. 49 OCA has warranty – collateral function. This kind of liability is not a result deriving from the guilt of the contracting principal. It is accepted that guilt could only be sought in the one who perform the task, and not the person assigning it. Under Art. 49 OCA the liability is borne for the guilty actions of someone else, who is wrongly chosen by the contracting principle. Unlike Art. 53 OCA in such cases there is not joint liability. This warranty – collateral liability is prescribed by law in order for secure, quick and easy compensation to be granted. The one who bears the liability under Art. 49 OCA can defend himself by proving either of the following: i) no damage has been done; ii) the damage has not been caused by his contracting executor; iii) the damage is not caused by the guilty actions of the executor. It is correctly recognized by the Case Law that granting the contracting principal a chance to prove that he has made a decent choice and has performed effective control on the chosen executor will endanger the goals and the wished results. In other words, the High Court emphasizes on the social characteristic of the problem and the public necessity for such a liability.

Applying these conclusions to the issues concerning the Municipality liability for damages caused by stray dogs bites, the following could be concluded: in the beginning the Case Law correctly accepts that the Municipality is only liable for a specific legally given result, which in our case is taking care for stray dogs and creating a calm and healthy environment for the people. Such a result is provided to take place in each municipality and all the means and methods depend on Municipality appraisal. The legislator only aims at fulfilling the goals as they correspond to the public needs. It is strongly believed that if the desired result has not been achieved regardless of the actions and measures taken, there is a total in-activity and non-performance by the addressee of the duty – the Municipality. Therefore, the Municipality liability does not arise for non-performing specific actions, not taking special programs, etc., but for non-achieving the goals set by the Law. When the assigned task is performed effectively and completely the undertaken measures should be constant monitoring and accommodation of the stray dogs in a specifically designed shelters where permanent care would be given. As a result of these measures not a single stray dog would live in the urban areas and would be a threat for the health of citizens. Of course, it is up to the Municipality to determine how many and which people to engage with the issue. For that reason, the older case law of the High Court should be granted support. It is also notable, that the latest court decisions, including the ones handed under Art. 290 of the Civil Procedure Code, set the way forward for a slightly different and not so fair notion which is in deviation with the legally provided warranty – collateral function. In the cited decision the Court allows the Municipality to avoid any liability in case of stray dog accident if it manages to prove that measures preventing the attack were undertaken, without even taking into account the type of measures. Such a notion could be seen as dangerous and unlawful. Assigning this duty to the Municipality the legislator did not set or implement any specific measures. The pursuit of the objectives initially set is granted towards the Municipality and it is the only subject to determine all the means. Therefore, every single municipality can have a different understanding and thus, a different approach on how to achieve the targeted objectives. This assessment could be neither monitored, nor supervised by the government. Hereof, the legislator expectation is for a final result apart from the kind of measures undertaken. The government does not interfere in the assessment of the whole process and for that reason it only sanctions the final result. Opting for the opposite thesis would seriously jeopardize the fundamental rights and legitimate interests of citizens for protection of their health and life.

In the end it can be concluded that on the issues concerning the liability of municipalities in cases of attack or biting by stray dogs there is a contradictory practice of the the High Court. On the one hand Decision No. 639 from 02.07.2009 in Case 2398/2008 of the High Court of Cassation and Decision No. 383 from 27.07.2010 in Case 424/2009 of the High Court of Cassation deem the idea for warranty – collateral function of the liability of municipalities and prohibit the possibility for municipalities to avoid such liability if proper care and efforts have been put in place. On the other hand, Decision No. 368 from 18.11.2005 in Case 2045/2015 of the High Court of Cassation and Decision No. 488 from 07.02.2012 in Case 899/2010 of the High Court of Cassation takes the controversial side. All of the above pointed decision are issued under the procedure of Art. 290 of Civil Procedure Code and are therefore compulsory for all the court and governmental authorities. In view of the need for security and foreseeability of law enforcement dealing with municipalities liability for stray dogs attacks, it is vital that the Case law is applied in a uniform manner through an interpretative decision by the High Court of Cassation.