The United States has a dog population of over 72 million and Massachusetts has more than its proportional share of them.  We are generally a dog loving state whose owners consider dogs to be family members.

But we have very little tolerance for dogs that attack people, especially children.  It is outrageous and unacceptable when we hear about aggressive breeds of dogs mauling children.  The Massachusetts Legislature long ago expressed our intolerance for dog attacks by passage of a strict liability dog bite statute.  Strict liability means that there will be legal responsibility for a dog attack irrespective of the defendant’s or the dog’s degree of blameworthiness – i.e., poor breeding, poor training, owner fault.

A.        The Dog Bite Statute.

In Massachusetts,

“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.”

On the books since 1812, the statute is referred to as the “dog-bite statute” because it is usually invoked to seek legal redress for bite injuries.  However, the statute is broader that than.  It applies to any injury caused by a dog and could also include injuries caused by a running or jumping dog that knocks someone down.  A claim under the statute is an independent legal cause of action separate from common law negligence.

Under the express language of the statute, the plaintiff must prove three things:

1. Injury proximately caused by a dog;

2. Defendant was the owner or keeper of the dog; and

3. Plaintiff did not commit trespass or another tort and was not teasing, tormenting or abusing the dog.

Liability under the statute is no-fault.  It is unnecessary for the plaintiff to prove that the dog was dangerous, that the owner knew it to be so, or that the owner was somehow negligent in failing to restrain or secure the dog.

B.        Dog-Related Injury.

Most cases brought under the statute concern dog bites.  These injuries can include puncture wounds, lacerations, internal damage, broken bones, the transmission of rabies and in the more serious cases permanent scarring and disfigurement, and even death.  Many dog-bite victims also develop a psychological fear of dogs after an attack that can affect them for the rest of their lives and manifest whenever they see a dog.

Liability is not limited to bite injuries.  Plaintiffs can also recover under the statute for bodily injury after being knocked or pulled down by a dog, as well as for damages to tangible property including other animals.  It is not even necessary for the offending dog to come into actual physical contact with the plaintiff or the plaintiff’s property.

The dog’s apparent intent is also totally immaterial.  Even if a dog causes an injury while playing or fetching a stick, the owner or keeper is still legally responsible for the injury.

C.        Owner or Keeper of the Dog.

The plaintiff must show the defendant was either the owner or keeper of the dog at the time of the injury.

Ownership is fairly straightforward.  Most dog owners readily identify themselves to the police or to the injured person at the time of the incident.  In addition, dogs must be registered with in their city or town and the registration form will identify the owner by name and address.  Ownership can also be proved through veterinary records or American Kennel Club records.

Keepership is a little more nebulous than ownership.  Keepership is defined as harboring a dog for the purpose of assuming custody, management and control of the animal.  Keepership involves more than mere possession and control.  It is more than simply taking some else’s dog for a walk.  The mere fact that a dog is kept on someone else’s property with the permission of the property owner does not alone make the property owner a keeper of the dog.  Keepership requires some degree of affirmative assumption of care of the dog.  This can be provide with evidenced that the defendant boarded, fed, groomed and/or administered routine medication like heartworm tablets, vitamins or flea and tick repellent.  A keeper of a dog will be responsible for damage the animal may do while it is in the custody or control of that person.  Once the dog is returned to the owner’s exclusive control, the keepership ends.

Veterinary staff will likely to be considered keepers even though their contact with any particular dog may be brief.  As such, veterinarians can be liable for dog injuries visited upon other customers on the premises during the time of the keepership.  However counter-intuitive it may seem, when veterinary staff are considered the keeper of a dig, they cannot avail themselves of the statute as plaintiffs when they are injured by the dog, usually on the examination table.  Of course, veterinary staff could always try to pursue a regular negligence claim against the owner though it would be difficult given their particular expertise and superior knowledge of canine behavior.

In addition, it is important to know that one spouse will not necessarily be deemed a keeper of a dog owned by the other spouse.  This holds true even where the dog is kept on premises owned by the first spouse and occupied by both.

D.        Plaintiff Did Not Trespass or Commit Another Tort and Was Not Teasing, Tormenting, or Abusing the Dog.

To recover under the statute, the plaintiff must also prove that he “was not committing a trespass or other tort, and was not teasing, tormenting or abusing the dog.”

The only exception is for a minor plaintiff under the age of seven years.  The law regards such ages as being legally incapable of forming the necessary intent to commit such wrongful acts.

Whether a plaintiff over the age of seven years was teasing or tormenting the offending dog depends on the factual circumstances of the incident.  This determination is generally left to the jury’s common sense and will only be disturbed by the court if the finding is so at odds with the evidence as to defy all reason.  In one case, the plaintiff simply offered a bone to the dog and the dig growled and bit her.  Affirming the jury verdict for the plaintiff, the court noted that the plaintiff’s conduct – though it may have induced the dog to bite and contributed to causing the injury – did not rise the level of teasing, tormenting or abusing.

When analyzing this issue, the plaintiff’s intent is to be considered.  In another case, a plaintiff was bitten after he tried to break up a dog fight by kicking the defendant’s dog which then turned and bit the plaintiff.  The jury and trial judge found that the plaintiff’s intent was to force the defendant’s dog to abandon the fight, not to torment or abuse it.  The appellate court agreed and stated that striking a dog to prevent it from acting in a harmful manner, rather than to irritate or annoy it, does not constitute the kind of wrongful act on the part of the plaintiff that could prevent recovery under the statute.

E.        Proximate Causation.

The plaintiff needs to also prove that the dog’s actions proximately caused an injury or damage.  Usually this is done by simply offering the ambulance and medical records and bills, and perhaps a police report, into evidence along with the plaintiff’s testimony as to how the incident occurred and what the damages are.

F.         Defenses.

If possible, the defendant will always try to show that he was not the owner or keeper of the offending dog.  More often the defendant will try to argue that the plaintiff teased or tormented the dog.

There may an additional defense if the offending dog is owned or kept by a governmental agency which would enjoy the benefits of sovereign immunity.  Government-owned dogs include bomb-sniffing or drug-sniffing dogs at airports and other transportation checkpoints, search-and-rescue dogs and police K-9 unit dogs that are trained to attack and subdue criminal suspects.  Theoretically, governmental immunity could shield the agency to the extent that the ownership or keepership of the dog involves the exercise of a so-called discretionary function.  Governmental immunity will also limit any recovery to $100,000 based on the liability cap in Massachusetts.

The exclusivity provisions of the Workers’ Compensation Act would also bar a plaintiff from bringing suit under the statute against his employer if he or she was injured by the employer’s dog at work.

The statute of limitations under the dog-bite statute is three-years.  A lawsuit filed more than three years after the incident will surely be challenged on that basis.

G.        Insurance.

Most dog injury cases are covered by the owner’s or keeper’s homeowner insurance policy.

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