Case Brief 4

Case 4: Rose

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Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (2004).

Smith, Judge

Plaintiff brings this action pursuant to G.L. c. 215, otherwise known as the dog bite statute.

On the date of her injury, Evelyn Rose, a two-and-a-half-year-old, was playing crack-the-whip in defendant’s backyard with defendant’s daughter, friends, and cousins. Evelyn Rose was on the end of the whip. The testimony at the trial court shows that after she had been thrown off the whip, Evelyn Rose fell on Chewbacca, defendant Jack Leopold’s three-year-old Saint Bernard. Chewbacca reacted by scratching Evelyn Rose in her left eye. There was no evidence that Evelyn Rose or anyone else had teased or aggravated Chewbacca before the incident, nor was there evidence that the dog had ever scratched, bitten, or attacked anyone else. According to Jack Leopold, Chewbacca had not appeared agitated either before or after the incident. As a result of her injuries, Evelyn Rose incurred permanent damage to a tear duct in her left eye. It was determined that Evelyn Rose’s left eye will overflow with tears more frequently and as a result of less irritation than normal. Her vision, however, was not affected.

Massachusetts General Law Chapter 215 pertaining to liability of an owner of a dog attacking or injuring a person provides:

If a dog or other animal without provocation attacks or injures any person who is peacefully conducting himself in any place where he many lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.

Under this statute, four elements must be satisfied for a plaintiff to prove defendant’s liability: injury caused by a dog owned or harbored by the defendant; lack of provocation; peaceable conduct of the person injured; and the presence of the person injured in a place where he has a legal right to be. See Dan v. Gilbert, 818 N.E.2d 325, 983 Mass. 332 (2001); Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (2005).

There is no dispute that the defendant, Jack Leopold, owned Chewbacca. Also not in dispute are the facts that Evelyn Rose’s conduct was peaceable and she was playing in a place where she had a legal right to be. The issue presented before this court is whether Evelyn Rose’s unintentional act constitutes provocation within the meaning of the statute.

This is a case of “first impression.” The statute does not distinguish between an intentional act of provocation and an unintentional act of provocation, and never before has a Massachusetts court been asked to distinguish between the two regarding G.L. c. 215. Defendant Leopold argues that the mental state of the actor—here two-and-a-half-year-old Evelyn Rose—who provokes the dog is irrelevant. Evelyn Rose’s attorney argues she cannot be responsible for her accidental and unintentional provocation of Chewbacca.

This court will examine other cases in this jurisdiction that have examined the concept of provocation within the meaning of the dog bite statute. While the court recognizes none have addressed this particular issue of unintentional provocation, prior case law may serve to guide the court in its current analysis. In Segal v. Chelsea, 619 N.E.2d 555, 319 Mass. 234 (1992), we held there was provocation where the injured boy and his companion kicked a dog three times. The argument was raised in Segal that provocation meant only an intentional act, but the court did not pass on this argument, as it found the injured boy’s acts in kicking the dog clearly intentional and provoking. So Segal is not particularly enlightening to the present set of facts. In Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (2005), the court found no provocation on the part of the plaintiff when he walked into a hallway patrolled by a guard dog that attacked him on sight. The court held that the acts of the plaintiff did not constitute provocation within the intent of the statute and that plaintiff had a right to be in the defendant’s hallway. While Evelyn Rose’s counsel argues that in Bjorstrom the plaintiff did not intend to provoke the dog (and there was no provocation found in that case), it appears that the court’s holding was based on a determination that plaintiff’s actions and conduct were not of a provoking nature, and further, that the holding was not based on any determination of the intent motivating plaintiff’s actions, which might make it relevant to the present case. The court in Bjorstrom stated that it did not believe provocation within the meaning of the statute was intended to apply to a situation where a vicious dog interpreted a visitor’s nonthreatening movements as hostile actions calling for attack. Such is not the case under the present set of facts. Here we cannot call Evelyn Rose’s acts nonthreatening, since indeed they resulted in her actually falling on Chewbacca, albeit unintentionally; therein lies the rub. So prior case law is not illuminating on the issue of whether provocation can be intentional or unintentional for purposes of the statutory intent.

In the present case, it is admitted that plaintiff fell on the dog’s tail; that the dog was of a peaceful and quiet temperament; and that the dog was gnawing on a bone when the incident occurred. Under these circumstances we believe the Saint Bernard was provoked, although the provocation was unintentional.

Evelyn Rose’s attorney argues that since her act was unintentional, or because she was of an age at which she could not be charged with even the ability to form legal intent, she did not provoke the dog within the meaning of the dog bite statute. Although her attorney presents a compelling argument for interpreting the statute to essentially impose strict liability on a dog owner for injuries caused to a child of tender years, we cannot agree that the public safety of this Commonwealth compels the adoption of such a standard.

Before the legislature passing G.L. c. 215, Massachusetts case law held that anyone bitten by a dog could recover from the owner only if the person bitten could prove that the dog had manifested a disposition “to bite mankind” and that the owner had notice of this disposition. In reality this came to be known as the “one bite rule.” Each dog got one free bite before the owner could be held liable. When presented with this situation, the Massachusetts legislature passed the dog bite statute, G.L. c. 215, to correct the common law development of the one bite rule. The dog bite statute substantially eased this one-bite burden on the public. It eliminated the requisite proof that the dog was vicious toward humans and that the owner knew it; it also made irrelevant any questions of the injured person’s contributory negligence and replaced it with the issue of the injured person’s potential toward provocation.

We do not believe, however, that it was meant to impose strict liability on dog owners for all injuries caused by dogs, except those intentionally provoked. Instead this act was drawn to eliminate as much as possible any inquiry into subjective considerations. Whether the injured person was attacked or injured while conducting himself in a peaceful manner in a place where he could lawfully be are all matters that require no inquiry into a person’s intent. We believe that the determination of provocation should also be made independently of such considerations. A determination of provocation does not require consideration of the degree of willfulness that motivates the provoking cause. Had the legislature intended only intentional provocation to be a bar to recovery we think it would have so worded the statute. An owner of a dog who would injure someone without provocation should be liable. This implies that the intent of the plaintiff is immaterial. Nor do we think the age of the child should relieve her of all responsibility for a provoking act.

Although we believe that the instant statute does not impose liability on a dog owner whose animal merely reacts to an unintentionally provocative act, the present appeal does not involve a vicious attack that was out of all proportion to the unintentional acts involved. If the dog had in fact acted viciously in his response to her unintentional provocation, we would probably rule differently.

But the facts of this case are unambiguous. She unintentionally fell on the dog, and the dog responded proportionally by swiping at her. Although her tear duct is damaged, her vision remained unaffected. This response of the dog can scarcely be described as vicious. Therefore we hold that provocation within the meaning of the instant statute means either intentional or unintentional provocation, and that Chewbacca was provoked by Evelyn Rose’s unintentional act and did not react viciously. Accordingly Evelyn Rose cannot recover damages.