Case 2: Dan
Read a case and create a brief of the judge’s analysis. Compare your response to a sample answer document.
Read the case below.
Create a Word document with your name on the first line. Name the document you create LWc2_yourname.doc (or docx or pdf).
Create a case brief. It should include the case name and citation and the following headers:
Question or Issue
Answer or Holding or Rule of Law
Now submit your brief. Keep a file copy for yourself. This exercise is required but will not be graded.
Dan v. Gilbert, 818 N.E. 2nd 325, 983 Mass. 332 (2004).
On July 4, 1997, at 10:00 in the morning, the plaintiff, Penny Dan, suffered injuries when she was bitten by a bullmastiff owned by the defendant, Josh Gilbert. Defendant had chained his dog to a pipe so that the dog was confined within defendant’s property in Carlisle, Massachusetts. Plaintiff, a frail seventeen-year-old, was in the neighborhood selling Girl Scout cookies door-to-door. There were no signs or posted notices on defendant’s property warning salespeople to keep off the property.
Plaintiff came to defendant’s home. She walked up a dirt path that led from the sidewalk to the defendant’s front door. When plaintiff was within five feet of the front door, defendant’s dog jumped on plaintiff, biting her on the eye and cheek. After getting away, plaintiff was taken to the emergency room, where she received over thirty stitches for her eye injury alone.
Plaintiff filed suit against the defendant, based on what is colloquially called the dog bite statute, G.L. c. 215, which provides:
Dogs attacking or injuring person—Liability of owner. 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 term “owner” includes any person harboring or keeping the dog. The term “dog” includes both the male and female of the canine species.
The trial court awarded plaintiff $250,000 in damages. The defendant appealed. He contends that plaintiff was a trespasser when she entered defendant’s property and accordingly no judgment could be awarded pursuant to the dog bite statute.
A trespasser is a person who performs an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. G.L. c. 884. See Commonwealth v. Jones, 332 N.E.2d 876 (Mass. 1980). By this definition, plaintiff was not a trespasser on defendant’s land when she went there during ordinary hours of the day to solicit Girl Scout cookie sales.
On several prior occasions, this court has ruled that the owner of property who provides a path or walkway from a public street or sidewalk to his front door without some indication (a sign, posting of notice, or symbol of danger) to warn away those who seek lawful business with him, extends a license to use the path or walkway during the ordinary hours of the day. See Commonwealth v. MacDonald, 665 N.E.2d 648 (Mass. 1994); Commonwealth v. Christie, 564 N.E.2d 342 (Mass. 1992). Our decision in Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (1999), supports this view.
Defendant argues in his appellate brief that when the plaintiff came upon defendant’s property, she saw the dog that bit her. Defendant maintains that the best warning a property owner can give to those who may come onto his land is the sight of his dog chained, in plain view, standing guard. Defendant further contends that the presence of his dog in this way was constructive notice to the plaintiff that she would enter defendant’s property at her own peril.
We agree that a dog chained in a place it can be seen, to guard its owner’s property, is notice that entry on the land is prohibited. In many ways, a chained dog in a place it can be seen is better than any worded sign or poster telling those intending to enter the land of the dangerous dog. However, the trial court’s findings of fact do not support the set of facts defendant sets forth in his appellate brief. Both plaintiff and defendant testified that there were bushes on both sides of the front door to defendant’s home. Plaintiff testified that she never saw the defendant’s dog before it bit her because it “must have come out of the bushes.” In other words, defendant’s dog was not in a place where plaintiff could have seen it. Appellate courts are not in the business of changing facts previously determined in the trial courts.
Accordingly, plaintiff was legally on defendant’s property when she was bitten by defendant’s dog. She was peaceably conducting herself and doing so without provocation. The trial court’s judgment of damages is affirmed.
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