2009 Nutt v Florio (dogs)

KILLIAN NUTT [FN1] . EMIL A. FLORIO & another. [FN2]
No. 08-P-81.
Middlesex. April 14, 2009. – October 19, 2009.
One owning or controlling real estate, Duty to prevent harm,
Foreseeability of harm.
CIVIL ACTION commenced in the Superior Court Department on January 9,
The case was heard by , J., on motions for summary judgment.
for the plaintiff.
for the defendants.
KATZMANN, J. As a result of a bite by a pit bull terrier named Tiny, ten year
old Killian (plaintiff) filed a multiple count complaint [FN3] in Superior
Court against the dog’s owner, Michael Keane, [FN4] and the owner’s
landlords, Emil and Clara Florio (defendants). Both parties moved for summary
judgment. The defendants’ motion was allowed as to all counts and the
plaintiff’s motion was denied. The plaintiff now appeals solely from the dismissal
Dog. Negligence,
Linda E. Giles
Harry J. Vlachos
Karen Piso Nadeau
of the negligence count against the defendants. Informed by a Supreme Judicial
Court opinion issued subsequent to the proceedings here, we reverse the grant
of summary judgment for the defendants and remand for further proceedings.
. The summary judgment record here was developed largely
through deposition testimony. “We recite the material facts in the lightmost
favorable to [the plaintiff], as the nonmoving party.” v. , 436 Mass.
244, 245 (2002).We draw all inferences from the underlying facts in favor of the
party opposing summary judgment, and resolve all doubt as to genuine issues of
material fact against the party moving for summary judgment. . v.
, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982). Although certain
facts are controverted by the defendants, including those pertaining to notice,
and the circumstances surrounding the incident, the evidence taken in the light
most favorable to the plaintiff would permit a jury to find the following. The
plaintiff and his family lived in an apartment in a four-family house on 109- 111
Overland Road inWaltham (premises), which was owned by the defendants.
Keane lived in another apartment at the premises, and owned Tiny. Keane had
gotten Tiny two or three months prior to the incident from his son, who found
him in the woods. On July 18, 2005, Keane, Keane’s friend, and Tiny were sitting
on the front porch steps of the premises, and the plaintiff was playing with a
sprinkler in the driveway of another property adjacent to the premises. Tiny
bolted from the porch, ran down the stairs, leapt into the air and over the
retaining wall separating the properties, and bit the plaintiff multiple times on
the leg. Tiny’s attack was unprovoked. The bites caused serious damage to the
plaintiff’s leg, resulting in a four-day hospital stay. At the time of the biting, Tiny
Attorney Gen
was unlicensed, was not vaccinated for rabies, and was unrestrained, in violation
of the municipal leash law.
Prior to the incident, the plaintiff’s father, Lawrence and his mother,
Elise Hamblett, observed that Tiny exhibited aggressive behavior. They called the
defendants on several occasions to complain about the presence of dogs at the
premises, most notably Tiny. They complained that Tiny generally ran around
unleashed and aggressive, causing them to have safety concerns; and that Tiny
mounted their children at various times and Hamblett on another occasion.
Earlier in the summer of 2005, GraceMorrell, another tenant at the
premises, also had an encounter with a pit bull owned by Keane.While
unloading groceries from her vehicle, Morrell watched in fear as the pit bull ran
toward her. The dog stopped short of Morrell and then returned to Keane, who
was watching from a few feet away. Spooked by the event, Morrell reported the
incident to James Florio, the defendants’ son, and chastised Keane for not
keeping his dog on a leash. AlthoughMorrell testified that the dog that charged
her was not the same dog that bit the plaintiff, there was other evidence that
Keane had only one pit bull.
There was testimony from Emil Florio that he did not allow tenants to have
any pets without his approval and that he had not approved Tiny. He also
testified that seven or eight years earlier Lawrence had kept dogs at the
premises and Florio made him get rid of them. also testified that Florio
made him get rid of dogs he owned at the premises. Hamblett testified that she
and received a letter from the landlord in 1997 stating that no dogs
were allowed on the premises and as a result, she and got rid of their
two dogs.
Finally, Ann Campobasso, inspector of animals inWaltham for six years,
testified that the pit bull was the breed of dog that was involved in more human
biting cases than any other breed.
In count 4, alleging negligence against the defendants, the plaintiff claimed
that the defendants “allowed [Tiny] to roam unrestrained in and around the
Premises”; that “as owners and landlords of the Premises, [they] had a duty to
keep their tenants, in this case the plaintiff[], free from an unreasonable risk of
harm”; and that “[b]y allowing Keane, a tenant, to keep on the Premises the very
aggressive pit bull terrier dog . . . in the presence of the young tenant
children,” “they breached their duty of reasonable care to the plaintiff[] and
caused the plaintiff[] harm.” Based on the summary judgment record, the judge
ruled that the plaintiff’s family’s fears of Tiny were “subjective,” that they failed
to establish that Tiny had any dangerous propensities, and that from all the
record revealed, Keane’s dog simply acted as dogs do naturally. Accordingly, the
judge allowed summary judgment for the defendants as matter of law on the
negligence claim.
. A. . “The standard of review of a grant of
summary judgment is whether, viewing the evidence in the light most favorable
to the nonmoving party, all material facts have been established and the moving
party is entitled to a judgment as a matter of law.” v. ,
446 Mass. 525, 530 (2006), quoting from . v. ., 410
Mass. 117, 120 (1991). The same standard applies to appeals of summary
judgments, and appeals are subject to de novo review of this court. See v.
, 69 Mass. App. Ct. 158, 161 (2007).
Generally, courts do not resolve negligence claims through summary
judgment because the question of negligence is usually a fact determination for
the jury. See v. , 399 Mass. 790, 794 (1987);
v. ., 36 Mass. App. Ct. 948, 949 (1994). That rule is not
absolute, however, especially where the moving party can establish that its
opponent cannot prove an essential element of its claim. v. , 411
Mass. 382, 388 (1991). In a negligence case, a plaintiff must show that the
defendant breached a duty of care, that the plaintiff suffered a loss, and that the
defendant’s breach caused the loss. See v. , 430 Mass. 694, 696
(2000); v. , 70Mass. App. Ct. 238, 242 (2007). See also
Restatement (Second) of Torts § 281 (1965).
B. .We are concerned here with the potential liability of the
defendants, who were the owners of the property where Tiny lived, but were
not the owners or keepers of Tiny. Thus, this is not a case governed by the strict
liability “Dog-Bite statute,” G. L. c. 140, § 155, under which “the owner or keeper
Discussion Standard of review
Nelson Salem State College
Augat, Inc LibertyMut. Ins. Co
Natural Resource Dept. of Dennis
Solimene B. Grauel & Co., KG
Roderick Brandy Hill Co
Manning Nobile
Glidden Maglio
Lieberman Powers
Negligence claim
of a dog is liable . . . for injury resulting from an act of the dog without proof . . .
that its owners or keeper was negligent or otherwise at fault, or knew, or
had reason to know, that the dog had any extraordinary, dangerous propensity,
and even without proof that the dog in fact had any such propensity.” v.
, 344Mass. 66, 69 (1962), quoting from v. , 292 Mass. 299,
300 (1935). In this case, we apply common-law principles, given that there is no
controlling statute. See v. , 63Mass. App. Ct. 727, 736
(2005). See also v. ., 283 Mass. 158, 162 (1933) (if “no
statute intervenes, the liability for bodily injuries caused by dogs falls within the
general principles governing liability for injuries caused by animals ordinarily
harmless”). As owners of the property, the defendants owed a duty of
reasonable care to the plaintiff. See v. , 363 Mass. 693, 707
(1973). See also v. , 29 Mass. App. Ct. 909, 910 (1990) (a person
who is not an owner of a dog may still owe a duty to exercise reasonable care to
protect the plaintiff from harm caused by the dog). Such a duty, however, does
not make a landowner an insurer of her property. , at 709.
Under the common-law principles applicable here, the plaintiff cannot
recover from the defendants without evidence that they knew or reasonably
should have known that the dog had dangerous propensities. [FN6] See
v. ., 239 Mass. 232, 234 (1921); v.
., 306 Mass. 381, 385 (1940). See also v. , 63
Mass. App. Ct. at 736. As a general principle, knowledge of the mere presence of
the dog on the landlord’s property is insufficient, as “[d]ogs are regarded by the
common law as ordinarily harmless animals.” v.
DelDuca Leone Falco
Audette Commonwealth
Andrews Jordan Marsh Co
Mounsey Ellard
Brown Bolduc
Mounsey supra
E.B. Nelson Grocery Co Splaine Eastern Dog
Club, Inc Audette Commonwealth
Splaine Eastern Dog Club,
Inc Andrews Jordan Marsh Co
Commonwealth Santiago
Or Edwards Griffiths
Campbell Toubiana Priestly
., 306 Mass. at 385, quoting from v. ., 283Mass. at
161. Our assessment of the defendants’ knowledge of Tiny’s propensities,
however, is informed by a decision of the Supreme Judicial Court issued after the
summary judgment here and thus not available to the judge in the proceedings
below. There, in the criminal context, the court observed that the pit bull is a
breed “commonly known to be aggressive.” [FN7] v. ,
452 Mass. 573, 577-578 (2008). The court justified an exception to the “knock
and announce” rule for the execution of a search warrant where, among other
factors, on the premises to be searched was a pit bull — an animal the court
stated was “known to be dangerous and aggressive” — that could be used to
confront the officers. . at 578. [FN8]
While the defendants may not be held strictly liable by virtue of Tiny’s breed,
knowledge of that breed and its propensities may properly be a factor to be
considered in determining whether the defendants were negligent under
common-law principles. At issue, then, is whether Tiny had dangerous
propensities, whether the defendants knew or should have known about them,
and, if so, what actions by the defendants would have been reasonable, in light
of their duty as landlords “to protect tenants from reasonably foreseeable risks
of harm.” v. , 62 Mass. App. Ct. 475, 484 (2004). See v.
, 425Mass. 31, 34 (1997). See also v. , 402 Mass. 84,
88-89 (1988) (question was whether fact finder could reasonably conclude that,
“in view of all the circumstances, an ordinarily prudent person in the defendant’s
position would have taken steps, not taken [here] by the defendant [s], to
prevent the accident that occurred”).
Reviewing the record de novo, we think that these questions create a
genuine issue of material fact and, as such, are proper for the resolution by the
jury. Compare v. , 63Mass. App. Ct. at 736-737
(summary judgment was properly allowed where there was no evidence that the
defendants knew of the dog’s allegedly vicious propensities). [FN9] Here,
questions of fact exist as to Tiny’s dangerous propensities as well as the
defendants’ knowledge of those propensities in light of the complaints claimed
to have been made by the plaintiff’s parents to the defendants. These issues are
all matters for the fact finder. [FN10] Accordingly, summary judgment was
inappropriate. The matter is reversed and remanded for proceedings consistent
with this opinion.
FN1 By his mother and next friend, Elise Hamblett.
FN2 Clara E. Florio. Both Florios are sued individually and as trustees of the
Emil A. FlorioM&A Living Trust and the Clara E. FlorioM&A Living Trust.
FN3 The complaint also listed the plaintiff’s two siblings, Shannan
and Tarryn as plaintiffs, along with his father, Lawrence They
Audette Commonwealth
So ordered
Nutt, Nutt.
are not parties to this appeal.
FN4 The plaintiff did not appeal from the dismissal of the two counts against
Keane, who is not a party to this appeal.
FN5 The parties also described Tiny’s behavior as “humping” the children’s
FN6 The plaintiff does not argue that we should pronounce a rule that pit bull
terriers are inherently dangerous by virtue of their breed, thereby in effect
creating a new cause of action by imposing strict liability upon owners of
properties where they are kept.We thus do not address such an argument, and
in any event, the decision to create “a species-specific standard of care” is likely
one for the Legislature. See v. , 823 A.2d 1134, 1138 (R.I. 2003) (in
a negligence suit arising from a bite inflicted by a pit bull, the Rhode Island
Supreme Court noted that while “some states and municipalities successfully
regulate certain breeds of dogs such as pit bulls[, the Rhode Island] Legislature
has not, as yet, chosen to create ‘a species-specific standard of care’ “; judge
“properly declined the invitation [to impose strict liability upon pit bull owners]
because the creation of a new cause of action should be left to the Legislature”)
(citations omitted).
FN7 There appears to be no dispute among the parties here that Tiny is a pit
Ferrara Marra
bull.We note, however, that the term may describe any number of breeds. See
. v. , 404Mass. 73, 79-80 (1989) (while “some
dogs which, because of registration, known parentage or close conformance in
appearance to commonly accepted standards representative of ‘Pit Bull,’ would
be ‘commonly understood’ to be ‘Pit Bulls,’ ” city’s pit bull ban was void for
vagueness where identification of dog as “pit bull” did not provide ascertainable
standards for enforcement).
FN8 Regarding the pit bull, Justice Cowin observed in concurrence that “the
fact that the dog is in the home and is of a breed known to be dangerous, either
in the officers’ own experience or through common knowledge, should be
sufficient” for a “no-knock” warrant to issue. , at 579.
FN9 In , the plaintiff argued that the defendant’s agent knew of the
police dog’s vicious propensities because the agent trained the dog to
apprehend suspects. , at 736.We ruled that the simple fact that
the dog was trained for police work, without more, was not enough to establish
that the defendant knew of the dog’s dangerous propensities. . at 737.
FN10 Courts in other jurisdictions have reversed summary judgments in favor
of landlords where, as here, there was a genuine issue of material fact as to a
landlord’s knowledge of the dog’s alleged dangerous propensities. For example,
as noted above, see v. , 823 A.2d at 1138 (summary judgment
American Dog Owners Assn Lynn
Santiago supra
Audette supra
Ferrara Marra
reversed where the landlord knew that pit bulls were kept on premises and
there existed a question of fact as to the landlord’s knowledge of the pit bulls’
dangerous propensities due to the existence of a police report that one of the
dogs had bitten a child at the premises). See also v. , 584 So. 2d
187, 189 (Fla. Dist. Ct. App. 1991) (summary judgment improperly granted to
landlords where prior to an attack on her son, mother had a neighbor notify the
managers that there was a pit bull on the premises that was barking and lunging
at children; the fact that the dog was barking and lunging at children, particularly
in light of the characteristics of pit bulls, was sufficient for a jury to reasonably
conclude that the landlord was on notice as to the vicious propensity of the dog);
v. , 6 So. 3d 815, 819 (La. Ct. App. 2008) (reversing summary
judgment where there was conflicting testimony regarding whether the dogs,
including a pit bull, would bite if unleashed; whether the landlord saw the dogs
chasing people; and other facts relevant to the landlord’s knowledge of the dogs’
dangerous propensities); v. , 188 A.D.2d 1054, 1054 (N.Y. 1992)
(landlords were not entitled to summary judgment because triable issue of fact
existed as to their knowledge of vicious propensities of husky dog where [1]
plaintiff submitted affidavits which indicated that, whenever people neared the
dog, it would run and attack the front fence area, growling, barking, and showing
its teeth; and [2] plaintiff averred that landlords visited tenants to collect rent
and, therefore, could have observed the dog’s aggressive behavior).
Giaculli Bright
Bradford Coody
Dixon Frazini

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