Case Brief 3

Case 3: Segal

Goal

Read a case and create a brief of the judge’s analysis. Compare your response to a sample answer document.

Process

Read the case below.

Create a Word document with your name on the first line. Name the document you create LWc3_yourname.doc (or docx or pdf).

Create a case brief. It should include the case name and citation and the following headers:

Facts
Question or Issue
Answer or Holding or Rule of Law
Application

Now submit your brief. Keep a file copy for yourself. This exercise is required but will not be graded.

Segal v. Chelsea, 619 N.E.2d 555, 319 Mass. 234 (1992).

Tom Segal was seven years old. His friend, Charlie Chelsea, was eight. Tom and Charlie were playing cards on the front porch of Charlie’s home. The front porch was approximately 15 feet by 10 feet. It was a hot and humid day in July; the temperature was 96 degrees.

Also on the porch was Charlie’s dog, Finn. Finn was a 135-pound Leonberger. Earlier in the year, Finn had given birth to a litter of nine puppies. All the puppies had been sold when they were eight weeks old, and Finn had fully recovered from the birthing. However, Finn was still recovering from being hit by an automobile three weeks earlier. As a result of being hit by the automobile, Finn had eighteen stitches in her hindquarter and had stayed at the veterinary hospital for four days.

Tom and Charlie soon got bored playing cards. Tom tossed a few cards at Finn’s face. Finn responded by trying to bat the cards away from her face with her paws. The boys thought this was amusing. The boys’ actions escalated when Tom, bored with the card tossing, actually kicked Finn. Finn responded by growling. Mrs. Chelsea, hearing the growl, went to the porch and told Tom to go home and Charlie to go to his room. She then left the porch and continued to clean her house. Tom kicked Finn for a second time. For a second time, the dog growled. The dog had never growled at Tom before. In fact, Tom and Charlie had often played well with Finn. Tom knew he was making Finn angry.

After Tom kicked Finn for a third time, Finn’s mouth came in contact with Tom’s face. The dog’s teeth cut the plaintiff on the forehead partly back of the hairline and also at the corner between Tom’s nose and right eye. Tom screamed like a baby and ran home. Tom’s mother took him to the emergency room, where he received three stitches.

The Segal family sued the Chelsea family under the Massachusetts dog bite statute, G.L. c. 215. The Chelsea family admits that they own Finn and that Tom was lawfully on the premises (even though Mrs. Chelsea did ask Tom to leave the porch), but they argue that Tom provoked Finn into biting him. Tom’s attorney argued that the boys “were being boys” and there was no intent to provoke Finn into the action of biting Tom. Such argument is without merit. Tom testified that Finn growled after each kick. Additionally, Tom testified that when Finn growled, Tom knew Finn was angry. He further stated the dog had never growled at him before being kicked. Even if, as the Segals argue, the provocation in the statute requires specific intent, the record of the trial court evidences intent on the part of Tom. Tom’s kicking the dog on three occasions constitutes intentional and continuous provocation.

The Chelsea family also argues that plaintiff failed to prove other necessary elements of the statutory cause of action. The other necessary elements argued by the Chelseas are that the person injured must have been acting peaceably. It is argued that Tom was not acting peaceably before the dog bite occurred. We think it unnecessary to discuss this point in view of the fact that we have determined Tom’s conduct to be provocative, thereby losing the authority of the dog bite statute.