Each year, countless children and adults are injured by dogs around the country. And as we look to take advantage of the nice weather that summer has to offer, we also need to be aware of some of the interactions that can occur between your family and domesticated pets that you may encounter while outdoors. You should know how you can best protect yourself, your rights, and your family if you are unfortunate enough to experience a dog bite first hand.
The traditional common law approach to dog owner liability for bites causing personal injuries was that the owner had to have reason to know of the dog’s propensity to bite. As a practical matter, this rule meant that every dog got one free bite. With the next bite and subsequent bites which caused personal injury came liability of the dog owner for those injuries. Early in the 1800s, Massachusetts changed this traditional approach to liability by statute. The present dog bite liability statute states:
If any dog shall do any damage to either the body or property of any person, the owner or keeper, or if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, is under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant (dog owner) in such action. Massachusetts General Laws Chapter 140 Section 155.
This law has several interesting consequences:
First, the personal injury does not need to be caused by a dog bite. A personal injury caused by tripping over a dog or a dog jumping up on a victim causing a fall, for example, would result in liability for the dog owner as well as a bite.
Second, the liability for dog-caused personal injury claims is not limited to the owner. It extends as well to the ‘keeper’ of the dog. A keeper is someone who ‘harbors’ a dog with an”…assumption of custody, management and control of the dog….” Salisbury v. Ferioli, 49 Mass. App. Ct. 485 (2000) Thus a veterinary technician or a dog walker could be a ‘keeper’ and subject to liability for the dog caused personal injuries.
Third, there is no requirement that the injured victim prove negligence. It’s enough to show that the injury was caused by the dog and meets the other requirements of the statute.
Fourth, the only defenses are that the dog bite victim was a trespasser or teasing, tormenting or abusing the dog. Any negligence of the injured victim is irrelevant if he or she was doing none of these things.
Fifth, the dog bite law creates a special rule for children under 7. A ‘presumption’ that a child is not trespassing, teasing tormenting or abusing the dog means that the dog’s owner or keeper would have to prove that the child was doing one of these things. It also allows the court to require substantial proof of this from the dog’s owner or keeper. The net is that, in most cases, when a dog injures a child under 7, the owner or keeper will have no defense.
As the Massachusetts dog bite statute applies only to dogs, other types of pets, domesticated animals, or kept wild animals are not included and different rules apply. In addition, the liability of dog owners or keepers is usually insured by a homeowner’s policy. However, a number of insurers have taken to excluding certain breeds (pitbulls, for example) from this coverage. In this case, the owner or keeper might be subject to personal liability for their dogs causing personal injuries.
Despite the apparent simplicity of the Massachusetts dog bite law/statute, interesting and complex issues can arise. Therefore, it is important for a victim injured by a dog to consult an experienced personal injury law firm.