City of Seattle CLAIM FOR DAMAGES

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1 Note: Type or Print Legibly. See instructions on back. CLAIMANT City of Seattle CLAIM FOR DAMAGES SEE ATTACHED LETTER NAME (FIRST MIDDLE LAST, OR BUSINESS NAME) DATE OF BIRTH HOME PHONE LISA LYNNE MCKIBBIN & NANCY HELEN BOSTDORFF CURRENT HOME ADDRESS (NUMBER STREET CITY STATE ZIP) BUS. PHONE CITY USE ONLY CLAIM NUMBER DATE FILED HOME ADDRESS AT THE TIME THE CLAIM AROSE (NUMBER STREET CITY STATE ZIP) CELL PHONE E MAIL ADDRESS ACCIDENT/LOSS LOCATION/SITE DATE TIME DIAGRAM Use if this will help you locate or describe what happened BE VERY SPECIFIC: STREETS, ADDRESSES, etc. WHAT HAPPENED? DESCRIBE IN YOUR OWN WORDS HOW THIS LOSS OCCURRED AND WHY YOU BELIEVE THE CITY IS RESPONSIBLE. (additional space on reverse side or attach additional pages and supportive documents as needed) NAMES, ADDRESSES, AND PHONE NUMBERS OF ALL PERSONS INVOLVED IN OR WITNESS TO THIS INCIDENT 1) 2) 3) Ph: Ph: Ph: CITY DEPT? CITY EMPLOYEE CITY VEHICLE NUMBER, LICENSE, etc. WAS YOUR PROPERTY DAMAGED? (i.e. Home, Auto, Personal Property) YES IF SO, THEN FULLY DESCRIBE SUCH AS AGE, MAKE, MODEL, CONDITION, VALUE, OR EXTENT OF DAMAGE NO (additional space on reverse side or attach additional pages and supportive documents as needed) WERE YOU INJURED? YES NO IF YES, THEN COMPLETE THE FOLLOWING: (additional space on reverse side or attach additional pages and supportive documents as needed) DESCRIBE YOUR INJURY (IDENTIFY YOUR DOCTOR(S)) WAGE LOSS YES NO IF YES, THEN RATE OF PAY: KIND OF WORK EMPLOYER AMOUNT CLAIMED $ SIGNATURE OF CLAIMANT (AND TITLE, IF A BUSINESS) SEE ATTACHED LETTER I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct This claim form must be signed by the Claimant, verifying the claim; or pursuant to a written power of attorney, by the attorney in fact for the claimant; or by an attorney admitted to practice in Washington State on the claimant s behalf; or by a court approved guardian or guardian ad litem on behalf of the claimant. EXECUTED this day of, 20, At, County, Washington X SEE ATTACHED LETTER

2 ANIMAL LAW OFFICES OF ADAM P. KARP, JD, MS 114 W. Magnolia Street, Suite 425 Bellingham, Washington Bellingham: (360) 738-RARF (7273) Outside Bellingham: (888) Fax: (360) 392-FYDO (3936) E-Fax: (866) Web: By First-Class Mail Friday, March 11, 2011 City of Seattle City Clerk s Office PO Box Seattle, WA RE: ER 408 Settlement Negotiations Inadmissible Notice of Claim on behalf of Lisa McKibbin and Nancy Bostdorff Dear Risk Management: On behalf of my clients Lisa McKibbin and Nancy Bostdorff, please confirm receipt of this Claim for Damages, following the format prescribed on your online form, subject to objection as stated below and to amendment as discovery and damages are ongoing. Claimants Names and DOBs: Lisa Lynne McKibbin Bostdorff and Nancy Helen Current Home Address: do not contact my clients directly but use my contact information above. Home Address At The Time The Claim Arose: same. Claimants Phone Numbers: - do not contact my clients directly but use my contact information above. Claimants Addresses: do not contact my clients directly but use my contact information above. Date and Time of Incident: Nov. 25, 2010, approx. noon.

3 ocation/site of Incident: 1529 Queen Anne A e. N., Seatt e, WA, at or near a lamppost on that street close to Oslo s: A Men s Store (1519 Queen Anne Ave. N.) and Bricco della Regina Anna (1525 Queen Anne Ave. N.). What happened?: Ms. McKibbin s dog, Sammy, suffered a thal dose of electricity while walking over a handhole plate adjacent or near a lamppost (possibly SCL n mber ) on Nov. 25, 010; Ms. McKibbin suffered physical and substantial emotional arm while trying to save Sammy s life, being shocked in the process. he also enduredd extreme ental anxiety from witnessing Sammy s xcruciating pain and doing her utmost to rescue him from the lethal azard, powerlesss to save im from t e current s grip. At several screte time points prior to Nov. 25, 2010, the City had repeated pportunities to prevent SCL lamppost from becoming ammy s gravestone, and for those reasons, liability attaches. pecifically: After the incident, Edward Smalley, LC, Engineering Department of SCL, summarized findings s follows: Manager of the Streetlight 2

4 Notably, Mr. Smalley reports that [n]one of the poless were properly bonded to ground[..] In other w rds, all four of the poles failed to comply wit Vicki Marsten s permit modification. It would have been one matter entirely had SDOT/SCL failed to evaluate one of the four poles. However, the fact that all four failed specification not only placed citizens and their animals at risk potentially at alll four pole locations on that block, but shows an astounding lack of care, so great as to rise to the level of deliberate indifference As to Mr. Smalley s rumination as to 3

5 whether Potelco had blame for causing the voltage that claimed Sammy s life and injured Ms. McKibbin, even Mr. Smalley acknowledges that while Potelco may have pinched the wire when relamping in April 2010, the failure to properly ground the system in was the cause of the fuse not blowing and neutralizing the threat. All roads return to the failure of SDOT/SCL to check this most basic condition. On or about Jun. 27, 2005, SCL engineer Vicki Marsten modified plans for the project that would energize the street s lampposts to require the contractor to install a copper ground lug and to attach a grounding wire/strap to the lug. After Sammy s death, SCL crews observed no signs there was ever a group lug on the poles. As Richard Sheridan, SDOT spokesperson told the Seattle Post-Intelligencer, At the time (the project was installed), we did not require written field reports from electrical inspectors[.] Vanessa Ho, City Had No Inspection Records Before Dog s Electrocution (Seattle P-I, Dec. 7, 2010). That the inspector (if one ever did inspect the pole) missed this obvious safety protocol imputes fault to the City but not simply due to oversight. Because the City did not require written reports for such a foreseeable and fatal omission, it, too, shares blame in not implementing inspection protocols that would have ensured safe operation of the posts on the 1500 block of Queen Anne Ave. N. before it coursed with deadly current. If the inspector on this project was a highly qualified licensed electrician with fifteen to twenty years of experience, as claimed by Sheridan, then that individual was grossly negligent, if not reckless, in either not inspecting the poles prior to energization or performing such a substandard, shoddy inspection as to constitute recklessness. The City had a right and duty to inspect the contractor s work before accepting it and failed to do so, endangering the public and their animal companions. Electricity, when transmitted at fatal amperages and voltages, at ground level in dense metropolitan areas transited by pedestrians and dogs (as opposed to the transmission of lethal amounts of electricity through uninsulated overhead power lines in rural areas), particularly in a rainy city where contact with water will reduce the resistance of human and nonhuman skin to current, presents an abnormally dangerous activity subjecting the city to strict liability, or, alternatively, to a very high standard of care. See Pacific NW Bell Telephone Co. v. Port of Seattle, 80 Wn.2d 59, (1971)(invoking strict liability for abnormally dangerous activities pursuant to Rest. (2 nd ) of Torts ); Keegan v. Grant Cy. PUD No. 2, 34 Wash.App. 274, 279 (1983)(when danger and likelihood of injury is increased, standard of care rises so that when utility s operation exposes public to serious accidents or death, utility is held to highest degree of care human prudence is equal to). Between Jun. 27, 2005 and April 2006, contractors ostensibly put Marsten s plans into effect, yet there is no indication that Marsten or any City employee confirmed that the plans asbuilt complied with the plans as-permitted. In May 2006, SCL energized the project. Thus, the City had nearly a year to ensure that this failsafe was actually implemented. 4

6 On Dec. 7, 2010, SCL employee Bronna Hankoff ed SCL Superintendent Jorge Carrasco and others responding to the question of Councilmember Mike O Brien as to whether the pole had groun fault circuit interrupters ( GFCI ) installed. S e stated: 1 In addition to failing to double-check the work of the contractor after issuing the permit but before energizing the system, the City failed to ensure that the second failsafe would also kick in to avoid pl te electrification. As Bronna Hankoff wrote, when a system is correctly wired, each system circuit is protected by a fuse that is designed to trip when a system fault is detected. In addition, each light pole has a second fuse to isolate a localized fault. Without dispute, lamppost was not correctly wired. The City, as noted above, had a duty to catch this deadly omission before energizing. Sadly, prior to Sammy s death, the City had no plan for testing systems under full load before acceptance to detectt faulty wiring. However, on Dec. 7, 2010, SCL initiated a process to develop such a plan. Failure to test lamppost under fu l load before acceptancee provides the second b sis for liability. In the four years between energization and Sammy s death by electrocution, the City had numero s opportunities to retest the poles in that area. Had they done so, they would have found that [n]one of the poles were properly bonded to ground and could have remedied the wiring to avoid the tragedy that ensued. The City s failure to do so provides the third basiss for liability. astly, the City had yet another opportunity t rectify this dangerous phenomenon by conducting a sweep test (i.e., mobile detection to identify power system faults that present a continuous threat to the public and requires year-longg intervention) for hazardous levels of contact voltage at l mpposts, manholes, and handholes throughout the Seattle area, yet the last time the City ran a sweep to test for this phenomenon was December 2010, after Sammy s death. In other words, the City never took proactive steps to detect what has been repeatedly reported and mitigated intensively by several large cities, such as New Y rk City, as a hot topic, or what sh uld have been before claiming Sammy s life. For instance, Neil Miller, of 8443 Delridge Way,, states that he notified the City in Spring 2009 of his black l b being shocked at the plate near a lamppost (# ). About 24 hours later, work crews serviced the entire block. Mr. Miller approached one of the workers, who 1 Mr. Carrasco s response to Councilmember O Brien about emphasis added by Ms. Hankoff. orty-five minutes later deletes the underlining 5

7 stated without surprise that they knew about the pro lem and these incidents happened with some frequency. This was over a year before Sammy s death. U doubtedly more peoplee than Mr. Miller have notified the City of contact voltage worries, as are now coming to light through major newspapers and blogs such as the Queen Anne View. In addition to being aware of contactt voltage concerns, the issue of grounding handholes is admittedly a hot topic, as noted by SCL s John Barnett: ven Power Survey Company s ( PSC ) Jan. 31, 2011 report recommended, at minimum, a follow-ue if once per year scanning is sufficient or if greater scan frequency is needed. PSC scan of the area after repairs are made, 2 which would allow the City to determi Mobile Contact Voltage Survey of Service Territory, at 3. But after-the-facown Jorge Carrasco stated the obvious when he remarked, Since we are responsible for the maintenance of the streetlights, it stands to testing must occur in concert with pre-energization full-load testing. SCL s reason that we should also inspect them prior to providing power. See Carrasco below. If sensible after Sammy s death, it stands to reason it was equally sensible beforee Sammy s death by electrocution as well. That inspection either did not occur or, i it did, the inspection was so egregiously deficient as to constitute willful nonfeasance, rendering the City liable on Mr. Carrasco s own admission. Further, Mr. Carrasco s below confirms that the City had a policy not to perform pre-energization inspections p ior to accepting streetlights in other words, a policy to stick one s head in the sand and ignore the lethall consequences. He notes the new policy would egin in January, 2011, two months after Sammy s electrocution: 2 The City hired PSC to perform a mobile contact voltage surve of Seattle between Dec. 28, 2010 and Jan. 14, PSC found hazardous voltages, 126 energized streetlights, and 20 energized handholes. Survey, at 1 (Table 1). 6

8 ven internally, City employees expressed disbelief that SDOT/SCL would allow the project to pass inspection. SCL employee Larry Wor s writes to Mr. Carrasco expressing his concern about an irresponsible penny wise, pound foolish municipal custom of relying on contractors to do the work of trained electrical workers who then fail to meet satisfactory, basic sa ety standar s. Mr. Carrasc writes on Nov. 30, 2010 that the contractor i explanation ignores that the City had the duty and right to inspect service. Any liability that might befall a contractor impute circumstances. allegedly to blame. But this before placing the system in to the City under these 7

9 In sum, had SDOT properly inspected the installation of the lamppost before handing over the system to SCL, Sammy would not have died since the grounding wire would have been correctl installed and, upon being pinched and creating stray voltage, the fuse would have blown interrupting the circuit. Names, Addresses, and Phone Numbers of Al Incident: Persons Involved in or Witness to this o Lisa McKibbin & Nancy Bostdorff. Contact information above. o John McDowell Queen Anne Ave. N., Seattle, osamensstore.com. WA 98109, (206) , o o o Lucas Cain. Address unknown; (206) , Alan Cain. Address, phone unknown. David Fleming, DVM and staff. Emerald City Emergency Clinic, 4102 Stone Way N., Seattle, WA 98103, (206) City Dept?: SDOT, SCL. City Employee: To be determined. City Vehicle Number, License, Etc.: Not applic ble. Was Your Property Damaged? YES. Though animate, sentient, and a family member, the law presently regards Sammy, claimants trained, beloved, 6-ye r-old, neutered male German Shorthaired Pointer, as property, albeit a form sui generis. Sammy had an ntrinsic value, no market value, and no replacement value, and was n t fungible. Details concerning Sammy, expenses incurred t roughout his life, his special value, veterinary expenses to save his life, and private cremation costs may be found in some or all of the bulleted sections (1)-(6) contained in 8

10 the Offer of Settlement section below, which details are, on information and belief, incorporated by reference here. Were You Injured? YES (Lisa McKibbin); NO (Nancy Bostdorff). Describe Your Injury (Identify Your Doctor(s)): therapy related to Nov. 25, 2010 incident [ ]. Details of Ms. McKibbin s personal injury may be found in some or all of the bulleted sections (1)-(6) in the Offer of Settlement section, which details are, on information and belief, incorporated by reference here. Wage Loss? NO Amount Claimed: Pursuant to ER 408 and FRE 408, $60,000 or $30,000 and nonmonetary changes as discussed in the Offer of Settlement section that follows. Without waiving objection to the requirement that the claimant (or claimant s counsel) sign the Claim for Damages under penalty of perjury, as an ante litem requirement, as unconstitutional and/or illegal on other grounds, on behalf of my clients, as their attorney at law, I declare under penalty of perjury that the foregoing allegations are true and correct. ANIMAL LAW OFFICES Digitally signed by Adam P. Karp Location: Bellingham, WA 'Date: :07:29-08'00 Adam P. Karp, Esq. Attorney for Lisa McKibbin and Nancy Bostdorff Executed this Mar. 11, 2011 in Bellingham, Washington 9

11 My clients merit the following compensation: ( 1) intrinsic value of Sammy, (2) loss of use of Sammy, (3) veterinary countermeasures and private cremation expenses, (4) pain, suffering, and emotional distresss to Lisa McKibbin, (5) medical bills to treat Lisa McKibbin, (6) reasonable attorney s fees and costs. (1) Intrinsic value of Sammy. Offer of Settlement (ER 4088 Protected): At the time he died, Sammy did not have a fair market or replacement value. Instead, he had a unique value, also known as intrinsic value, to hiss owner-gu rdians,. See Kimball v. Betts, 99 Was. 348 (1918) and Herberg v. Swartz, 89Wn.2d 916 (1978) (per se intrinsic value rule for househo d goods and personal effects kept for use and ot re-sale); Wilcox v. Butt s Drug Stores, Inc., 38 N.M. 502 (1934) (applying Kimball rule to dog killed by strychnine poisoning); Burgess v. Shampooch Pet ndus. Inc., 35 Kan.App.2d 458 (2006) (noting that Restatement and most jurisdict ons take position that cases involving pet dogs should not unjustly limit damages to fair market alue but should instead use value to the owner measure) ; Restatement (2 nd ) of Torts 911 cmt. e (dog trai ed to obey one master has special value). My special boy Posted on November 29, 2010 by sammysbigheart My clients loved Sammy as if he were their child. In return, Sammy provided succor and joy to my clients family. The avoidable and wholly unexpected death by electrocution o Sammy caused complex grief and emotional harm to both my clients. Six years of training, bonding, and incorporating Sammy into the daily routines and synchronicities of their household caused his value to increase steadily with each day (over 2000 days, to be precise). Each year starting in 2005, my clients took him on vacation to Banff, Portland, the San Juan Islands, Tofino, Victoria, Salt Spring Island, Cannon Beach, Kelowna, Sunshine Coast, and Canby. To the left is a picture taken in Tofino (2007). Below is a 2009 picture in the Canadian Rockies. They also spent over an estimated $10,000 on training, medical care, treats, toys, and ther paraphernalia, not excluding the purchase price of $200. Below are blog entries on a site dedicated to Sammy, providing insight into who Sammy was and who he became while in my clients care: 10

12 Sam relaxing on his favoritee patio couch at my birthday party in July. It s very difficult for me to look at photos of him right now. I can t stop sobbing and aching as it is, so I will just leavee this one alone for now. More laterr as time starts to heal.. Sammy, I will never get over you my love. You were my sweetie, my little boy who gave me the world and more. I can t tell you enough how much yo are missed, I keep hoping to find you on the couch, or in the bed curled up with the covers over ou, waiting to watch a movie with me. Things my mom (and me) loved about Sammy, sweet boy Posted on December 6, 2010 by sammysbigheart Things I loved abou Sammy and much more~ -How he howled whenever the telephone rang, singing along with t e tune -How he purred whenever he was petted -How he stood on the back of the sofa, looking out the window to s neighborhood, leaving his slimy nose prints on the glass e what was happening in the -How he slept under the covers -How he wagging got so excited whenever we brought a new bag of food into the house, smelling it, and his tail -How he was so happy to see us returning from anything, his whole body vibrating -How he loved to run up and down the yard, back and forth, incessantly, at huge speed, with his ears flying -How he loved to st -How he loved to s nd up on the fence, watching every hing around im and retrieve things, he would have been an 11 wesome dock dog

13 -How enthusiastic he was to go to Nose Works class an master birch and anise, only second to Tucker y about 25 seconds, and he loved practicing the skill at home too -How he licked everything new in the house -How he scratched the door to come in -How we had to console him whenever theree were sirenss -How he couldn t loved the bunnies at Discovery Park, and became motionless/pointing at things we see there -How he played tug-of-war with Lucy, and also trying too master squeaky toy contests -His nose working first thing in the morning when we went outside -How he loved the food room, where we kept his food -How he loved our homemade treats, especially tuna melts and peanut butter/banana cookies -How he loved to look out the car window, hanging his head over the back of the seat -How he learned a vocabulary of rabbits, ducks, geese, cows, horses -How he kissed Lucy, telling her he loved her -How he loved was never afraid to go to the vet, instead he liked it, becau e he would be touched and -How he used to wake me up at sunrise to be fed by sticking his big, cold nose in my face, saying get up! feed me!, and in summer, that was very early indeed -I ll miss calling him Sammy Claus at Christmas time -How he Sam loved riding in the car and checking out everything, we called him passenger man -How everytime we came home from running an errand or whateve thoroughly with his nose to determine wheree we d been, he would inspect us -How he grew into his big, floppy, Dumbo ears -How he was stuck temporarily in the tree chasing a squirrel -How he toppled over with his lampshade after his ope ation 12

14 -How he snapped to attention and wanted to put his nose out the window everytime we passed the zoo -How he was spoiled with cookies at the ferry toll booth, and got so excited, expecting the same thing, going through a drive-through, and even with the customs officials, traveling across the border! He was a very happy little man. Lisa and Nancy purchased Sammy, a purebred German Shorthaired Pointer, in Over the years in their care, exclusive of food, they spent over $10,000 as indicated below: Purchase price: $200 Training: $475 Doggie day care: $5212 (Metro Dog) Hotel surcharges: $400 est. Neuter surgery: $200 est. Queen Anne Animal Clinic: $ Animal Eye Clinic: $ Emerald City Emergency Clinic: $ (including private cremation) The intrinsic value of Sammy well exceeds any agglomeration of expenses, including acquisition cost, expenses related to nurturing, training, invaginating Sammy into my clients family over the six years prior to his unexpected and violent death. (2) Loss of use of Sammy. My clients lost Sammy s utility from Nov. 25, 2010 to date, and counting. The law allows for the recovery of loss of use of property while it is being repaired, so long as it is reasonably susceptible to repair and for a reasonable period of repair. McCurdy v. Union Pac. R.R. Co., 68 Wn.2d 457, 470 (1966). Even when destroyed (or, here, deceased), loss of use damages apply. Straka Trucking, Inc. v. Estate of Peterson, 98 Wash.App. 209 (1999) held that loss of use damages for a destroyed truck were recoverable between date of loss and date the defendant paid for the truck. (3) Veterinary countermeasures and private cremation. In an effort to save Sammy s life, my clients rushed him to the emergency clinic on Stone Way. Despite reasonably prudent lifesaving efforts, Dr. Fleming and staff failed to resuscitate Sammy. With private cremation, the bill amounted to $1339. Failure to seek treatment would arguably have constituted failure to mitigate. In Burgess v. Shampooch Pet Industries, Inc., 35 Kan. App. 2d 458, 131 P.3d 1248 (2006), the plaintiff took her dog to the defendant for grooming. Immediately after the grooming session, the dog was limping. The defendant denied liability even though a veterinarian had 13

15 given the dog a clean bill of health just two days before. The dog underwent hip surgery after the incident. The plaintiff recovered judgment for veterinary fees and court costs. The defendant/groomer appealed, insisting that damages should not exceed the dog's market value. Essentially, the defendant was arguing that damages were zero. The issue on appeal was the measure of damages. In this case of first impression, the Kansas Court of Appeals affirmed the plaintiff's damages award. It agreed with the trial court that a pet is different than a motor vehicle or other items of personal property in that a pet has no real market value[.] Shampooch, 131 P.3d at The plaintiff likened her years of companionship to her dog to the Master Card ad priceless. Id. Emphasizing long-standing, common-sense jurisprudence, the court upheld the award of damages even though the plaintiff's dog had no market value. Id., at 1252 (quoting Zager v. Dimilia, 138 Misc.2d 448 (J.Ct.1988)( it is impossible to reduce to monetary terms the bond between man and dog, a relationship which has been more eloquently memorialized in literature and depicted on the motion picture screen ). The court added that: the award of the amount Burgess spent on veterinary bills is in accord with the very purpose of the law of damages to make Burgess whole and return her to the position she was in prior to Shampooch's tortious conduct. It can hardly be said that a lesser award for example, Murphy's original purchase price of $175 depreciated over 13 years would make good the injury done, Kansas Power & Light Co. v. Thatcher, 14 Kan.App.2d 613 (1990), or fairly and adequately compensate Burgess or her out-of-pocket expenses. Id., at Other courts in the District of Columbia and New Jersey have similarly held. In Kaiser v. U.S., 761 F.Supp. 150 (D.D.C.1991), veterinary fees of $1, were awarded pursuant to the Federal Tort Claims Act for injury to a dog shot by the U.S. Capitol Police officer. In Hyland v. Borras, 316 N.J.Super. 22 (App.Div.1998), the court permitted $2,500 in vet bills for a dog where the cost of new dog was $500, stating: It is purely a matter of good sense that defendants be required to make good the injury done as the result of their negligence by reimbursing plaintiff for the necessary and reasonable expenses she incurred to restore the dog to its condition before the attack. Id., at See also Leith v. Frost, 899 N.E.2d 635, 641 (2008). (4) Pain, suffering, and emotional distress to Lisa McKibbin. Ms. McKibbin merits emotional distress damages in two capacities as a bystander to an immediate family member suffering a startling, unforeseeable, and alarming injury and in the capacity of personal invasion. As to bystander liability, while the Pickford v. Masion decision of 2004 (never appealed to the Supreme Court) holds that NIED does not apply to animal injury or death, I frankly assert that this presents an exceptional test case to reverse that precedent. A perfect example is found in a case of similar circumstances, Vaneck v. Cosenza-Drew, 2009 WL

16 (Conn.Super.Apr.20,2009), where pro se plaintiff Hermann Vaneck s dog Shadow was struck by Joyce Cosenza-Drew s car, causing internal organ damage, a severed spinal column, and death. Notably, Vaneck rejected defendant s claim that NIED does not apply when it arises from injury to personalty. It further distinguished Myers v. Hartford, 84 Conn.App. 395 (2004), relied upon by the defendant, by noting that Vaneck did witness the fatal injury to Shadow. The court also resisted the urging of the defendant to restrict bystander NIED claims to human family members, by noting that the common law doctrine articulated in Clohessy v. Bachelor, 237 Conn. 31 (1996) referred to the class of plaintiffs as those such as a parent or sibling, and that, as far as the first Clohessy element is concerned, the complaint impels the inference that [Vaneck] had a close relationship with [Shadow]. This conclusion was reached in light of the Myers decision and modern legislation pertaining to domestic violence protection orders for animals. The court added, [Connecticut] has not published any appellate authority or legislation prohibiting a litigant s pursuit of a claim for bystander emotional distress which may be suffered by a human being who witnesses the death or injury of a pet, such as Shadow, with whom he or she has a close relationship. Of course, proving gross negligence or recklessness escapes the Pickford precedent completely, an alternative claim I intend to bring, as explained below. Emotional distress also exists in the context of imminently invading Ms. McKibbin s personal space and security (with direct possibility of and actual physical invasion). Murphy v. Tacoma, 60 Wn.2d 603, (1962); Wilson v. KeyTronic Corp., 40 Wash.App. 802 (1985)(allowing general damages for physical invasion without objective symptomology). Ms. McKibbin will testify to complex grief, emotional and physical stress, haunting flashbacks replaying the witnessing of Sammy s death, fear of herself also being killed by lethal voltage and losing him so tragically and unexpectedly. (5) Medical expenses to treat Lisa McKibbin. Ms. McKibbin saw on Jan. 5, 2011 and Feb. 13, 2011 for treatment related Ms. McKibbin does not have medical insurance and cannot afford on-going counseling, though she requires it to attempt to resolve the injuries she has endured as a result of the Thanksgiving Day tragedy. The cost of each visit with Ms. Siemon is $75. (6) Reasonable attorney s fees and costs. 42 U.S.C permits recovery of reasonable attorney s fees and litigation costs upon proof of a constitutional injury by a state actor. As explained below, SDOT and SCL, and its employees, provide public utility service under color of state law. Each employee responsible for inspecting and permitting the project in 2005, followed by energizing the system that resulted in electrification of the vault next to the pole upon which Sammy tread acted with authority of state law. A 1983 violation arises where a state actor deprives a plaintiff of a federally protected right, privilege, or immunity, causing damage. The three essential elements of a 1983 Fourth 15

17 Amendment cause of action are (1) an act under color of state law, (2) that constitutes a search or seizure (3) that is objectively unreasonable. In the Ninth Circuit, it is clearly established law that killing a dog constitutes a Fourth Amendment seizure: As we stated in Fuller I, "The destruction of property is 'meaningful interference' constituting a seizure under the Fourth Amendment..." Fuller I, 36 F.3d at 68 (citing United States v. Jacobsen, 466 U.S. 109, (1984)). Shooting and killing a dog clearly constitutes "destruction" of that dog. In 1991 it was apparent in light of preexisting law that shooting and killing a dog constituted a seizure within the meaning of the Fourth Amendment. Fuller v. Vines ( Fuller II ), 117 F.3d 1425 (1997), unpub. Other Circuits have reached the same conclusion: Brown v. Muhlenberg Tsp., 269 F.3d 205 (3 rd Cir.(Pa.),2001)(shooting of Immi, a Rottweiler, was a seizure); Lesher v. Reed, 12 F.3d 148 (8 th Cir., 1994); Viilo v. Eyre, 547 F.3d 707 (7 th Cir.2008)(executing Lab/Springer mix with shotgun a seizure); Maldonado v. Fontanes, 568 F.3d 263 (1 st Cir.2009)(raid of public housing to seize dogs and cats and then kill them constituted seizure); Altman v. City of High Point, 330 F.3d 194, 206 (4 th Cir. 2003)(dogs are effects and their destruction triggers a seizure). see also Newsome v. Erwin, 137 F.Supp.2d 934, 943 (S.D.Ohio,2000)(killing of pet lioness was seizure); Van Patten v. City of Binghamton, 137 F.Supp.2d 98 (N.D.N.Y. 2001)(destruction of dog Shadow was seizure). That Sammy died from being seized with current constitutes a Fourth Amendment seizure, literally and figuratively. For the reasons stated below, the acts and omissions of SCL/SDOT employees constituted a seizure of Sammy and Ms. McKibbin without objective rationality. Section 1983 liability also arises based on municipal fault, which attaches here based on Monell doctrine and the theory that the City s policy/custom was the moving force behind injury to Sammy and Ms. McKibbin. Per City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989), municipalities face 1983 liability only if there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Direct causal links include a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body s officers, per Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978), or a custom, even though such a custom has not received formal approval through the body s official decisionmaking channels. Id., at A custom, or usage, of [a] State for 1983 purposes requires the force of law by virtue of the persistent practices of state officials. Adickes v. S.H. Kress & Co., 398 U.S. 144, 167 (1970). Municipal liability for informal customs or practices under Section 1983 received detailed treatment in the throw down case of Webster v. City of Houston, 689 F.2d 1220 (5 th Cir.1982), reversed en banc, 735 F.2d 838 (1984), aff d and rev d in part, 739 F.2d 993 (5 th Cir.1984). Evidence in Webster sufficiently established the informal policy of using a weapon, having killed or wounded an unarmed suspect, to place at the suspect s side to justify the shooting, along with the cover-up that followed the shooting. Here, evidence is abundant that prior to Sammy s death, the city had a policy not to routinely or intermittently check poles for 16

18 hazardous levels of contact voltage, nor to require written field inspection reports, steps that were the moving forces behind the Nov. 25, 2010 incident. Should this case be filed, upon winning my clients would be entitled to prevailing party costs. RCW , (1). These include a statutory attorney s fee of $200, court costs ($230 for filing and an estimated $75 for service of process), as well as other permitted sums. Note that pursuant to RCW (1), full or partial payment of amounts sought herein prior to entry of judgment will allow my clients to recover costs as prevailing parties simply by making full or partial payment. In light of the above, my clients are willing to compromise their position by settling this matter as stated, thereby avoiding protracted litigation and the burdens it places on the City and its employees. This sum is within the range of recoveries I have obtained over the past twelve years of exclusively litigating animal disputes. I attach a sampling. A jury will likely award substantial sums as a result of this avoidable tragedy, in excess of the sampling due to the additional harm to Ms. McKibbin and the recoverability of attorney s fees and general damages under For purposes of prompt resolution and compromise, my clients will accept either sixty thousand ($60,000) dollars to settle all claims or thirty thousand ($30,000) dollars with the City s commitment to the following nonmonetary terms: 1. Posting safety tips regarding contact voltage on the SCL website. 2. Participating in the annual Jodie S. Lane Public Safety Foundation contact voltage conference by sending at least one representative from SCL to learn from other utility experiences and mitigate the impact of contact voltage throughout the metropolitan Seattle area. To learn more, go to strayvoltagenyc.org. 3. Increase scans from quadannual to annual, the minimum recommended by PSC, though the City is free to conduct more inspections as it sees fit and appropriate guided by evolving facts, national standards, and prudent government administration. Respectfully, ANIMAL LAW OFFICES Adam P. Karp, Esq.. CC: Clients 17

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