Case Brief

Bjorstrom

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Case 1: Bjorstrom

Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (2005).

Dante, Presiding Justice

Mark Bjorstrom (“Bjorstrom”), a 14-year-old high school student, brought this action against the Carey Management Association to recover damages Bjorstrom sustained as the result of being bitten by the Carey Management Association’s dog. Bjorstrom brought his action based on Massachusetts’s dog bite statute, G.L. c. 215. Bjorstrom won at the district court level; however, Carey is arguing that the trial judge made two errors of law when he instructed the jury about the correct standard of law: one regarding the legal definition of lawfully on the premises, and the other regarding the legal definition of lack of provocation.

Bjorstrom suffered his injuries in the Copley Mall building in Boston, Massachusetts. Located in the lower level of the Copley Mall were various stores: Williams-Sonoma, Hugo Boss, Chanel, Ralph Lauren, and Neiman Marcus. On the upper level of the mall were J.Crew, Nine West, Timberland, A Pea in the Pod, French Connection, and Baby Gap. On the upper level of the Copley Mall was the Loews Copley Place Cinemas.

Justine Carey, of Carey Management Association, has been the manager of the Copley Mall for the last seven years. He and his wife Jill occupied the fourth floor of the mall building as their residence. The Carey’s apartment contained a safe in which the rents from the operation of the building were kept. Additionally, the apartment contained the Careys’ furniture and their three-year-old bulldog, Bowser. Bowser was there to protect the collected monies of the Copley Mall.

The various businesses located in the mall were advertised by signs on the exterior of the mall structure and on a building directory, which was located in the building lobby on the first floor. There were, however, no notices anywhere that the fourth floor was used as a private residence and not for commercial purposes. All the floors of the building were served by an automatic elevator that could be entered on any of the first three floors.

At about 2:00 p.m. on Friday, December 2, 2005, Bjorstrom entered the Copley Mall building for the purposes of selling holiday cards; the profits from his sales went to the nonprofit group the Samaritans. He said it was the first time he had been in the Copley Mall building. As he walked through the lobby, he saw a security guard at the entrance to the mall. He passed the security guard, walked into the elevator, and rode it to the fourth floor. When he got to the fourth floor, the first door in the elevator opened automatically. Bjorstrom said that before he could step out of the elevator, he had to manually open a second door, which swung outward.

He opened this second door, which he said was very heavy. He had to push against it with the weight of his body before the first door started to close on him. Bjorstrom stepped out into the fourth floor hall and turned left to knock on a door 15 feet down the hallway. At this point, Bowser ran out of the Careys’ residence door (15 feet down the hall to the right of the elevator) and jumped on Bjorstrom. He testified: “The dog bit me on the leg, and he bit me on the body, and he bit me on the arm, and I tried to cover my face. The dog was bigger than I was, and he was on top of me.” Bjorstrom finally managed to get back to the elevator and to ride down to the first-floor lobby, where he told the security guard what had happened.

During the trial, the Careys showed Bjorstrom a photograph of a sign that read:

WARNING
Keep Out
Vicious Police Dog
INSIDE

The Careys identified the photograph as the picture of a sign that was posted two feet above the bottom of the manually operated second elevator door, which swung outward into the fourth floor and was exceedingly heavy. Bjorstrom responded that he was pushing the door—it was heavy—so he didn’t look at the bottom of the door and didn’t see the sign.

Regarding Bjorstrom’s injuries, he identified two exhibits as accurate pictures of the large marks and wounds inflicted by Bowser. Bjorstrom testified that the attack left holes in his arms and he felt pain for about two months. Additionally, Bjorstrom testified he could not sleep for one month after the attack.

Defendant Carey testified that he witnessed a kid who looked like Bjorstrom walk into the lobby and proceed directly to the elevator without looking at the directory. He said that he saw Bjorstrom board the elevator and that he noticed the elevator proceed to the fourth floor. Carey further testified that the door on the elevator opens automatically; that when this door opened onto the fourth floor, there was a second door that must be opened outward by hand to gain entrance to the fourth floor; and that there was a sign warning of a vicious dog two feet above the bottom of this heavy door. Carey also testified that the heavy second door on the fourth floor could be locked by a key, but that it was not locked on the day of the attack.

The Massachusetts dog bite statute governs this case. In pertinent part it provides:

If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

The Supreme Judicial Court of Massachusetts in Pappalardo v. Santoro, 548 N.E.2d 1, 548 Mass. 887 (1990), first interpreted the Massachusetts dog bite statute. Pappalardo set forth the four elements of the dog bite statute that had to be satisfied for any plaintiff to prevail in a dog bite case. The Pappalardo case set forth the four elements as follows:

Injury caused by a dog owned or harbored by the defendant
Lack of provocation on the plaintiff’s part
Peaceable conduct of the person injured
The presence of the person injured in a place where he has a legal right to be
In the instant case, no one is disputing that Carey owned the dog that bit Bjorstrom. Defendant Carey contends that the other elements are not satisfied, however, because Bjorstrom’s entry onto the fourth floor past the sign warning of a vicious dog constituted an unlawful entry by Bjorstrom, as well as provocative behavior on his part.

This court disagrees with Carey’s contention that Bjorstrom was not lawfully on the premises. From all indications on the exterior of the Carey’s building, in its lobby, and on the inside of the elevator itself, people like Bjorstrom could only surmise that the entire building was devoted to business purposes and that it was intended that the public was invited into the premises to do business. No notices anywhere indicated that any part of the premises was used as a private residence. It is clear, therefore, that when Bjorstrom entered the building, crossed its lobby, entered the elevator, and rode it to the fourth floor, Bjorstrom was lawfully on the premises. In addition, we believe that he was also lawfully on the premises when he entered the fourth floor hall where he was attacked. Persons entering the building and riding its elevator would have no reason to believe that the fourth floor was used for residential purposes or that vicious dogs were kept there.

The sole warning to this effect was the sign posted two feet from the bottom of the door, where it could be seen only split seconds before one would enter the danger area and only at a time when the elevator passenger would be concerned with pushing open the heavy door so as to step into the hall and continue on with his business there. We agree with the trial court that under these circumstances the warning sign was in the wrong location, that it did not give adequate warning of the danger, and that hence the sign gives no grounds for holding that persons who enter the hall have no legal right to be there.

The Careys presented several cases to this court that they contend support their position that Bjorstrom was unlawfully on the premises. The cases that the defendants rely on are distinguishable on their facts. In Newman v. Johnstone¬, 685 N.E.2d 333 (Mass. App. 1996), the Massachusetts Appellate Court affirmed a judgment for the defendant in a case brought by a 15-year-old child to recover for injuries she received when bitten by the defendant’s dog. The child had sued pursuant to the dog bite statute. In that case, however, unlike our case, it appears that the child had been given a direct oral instruction not to go into the yard where the dog was. In another case, Boylan v. Sheedy, 719 N.E.2d 587 (Mass. 1996), the court affirmed a judgment for the defendant. That case is not factually similar to this case. In Boylan, the plaintiff saw and heard the dog before she entered the fenced yard where the dog was kept.

Next Carey argues that Bjorstrom was guilty of provocative behavior at the time he was attacked. Carey reasons that Bjorstrom approached the fourth floor apartment without giving a warning as to the nature of his visit, that this act somehow represented a threat to the security of the fourth floor apartment, and the dog was merely defending his home. Such an argument is ludicrous. Bjorstrom was under neither statutory nor common law duty to give warning as to the nature of his visit. Bjorstrom was merely walking in a hallway where he had a legal right to be. His only actions at that point consisted of stepping off the elevator and walking a short distance away from the defendant’s apartment door. We do not believe that the term “provocation” as used in this statute was intended to apply to a situation like this, and thereby relieve from responsibility the owner of a vicious dog—a dog that was kept specifically for protection—simply because the dog interpreted the visitor’s movements as hostile actions calling for attack.

The trial court’s judgment awarding damages to Bjorstrom is affirmed.

Judgment Affirmed.

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