Massachusetts Dog Bite Law

§  155. Liability of Owner for Damage by Dog.

    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. If a minor, on whose behalf an action under this section is brought, is under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action. 

HISTORY: 1791, 38, §  4; 1797, 53, §  5; 1798, 54, §  3; 1812, 146, §  3; RS 1836, 58, §  13; GS 1860, 88, §  59; PS 1882, 102, §  93; RL 1902, 102, §  146; 1934, 320, §  18; 1968, 281

NOTES:

EDITORIAL NOTE--

   The 1968 amendment added a sentence to shift the burden of proof of certain factors in dog-bite cases from plaintiff to the defendant where the plaintiff is a minor under 7 years of age.

TOTAL CLIENT-SERVICE LIBRARY REFERENCES--

   2 Mass Jur, Personal Injury and Torts § §  20:8, 20:10-20:15.

Cause of Action Against Owner or Keeper of Domestic Animal to Recover for Personal Injuries Caused by Animal. 14 COA 685.

ANNOTATIONS--

   Contributory negligence, assumption of risk, or intentional provocation as defense to action for injury by dog.  66 ALR2d 916.

Liability of owner of dog for dog's biting veterinarian or veterinarian's employee.  4 ALR4th 349.

Liability of dog owner for injuries sustained by person frightened by dog.  30 ALR4th 986.

Who "harbors" or "keeps" dog under animal liability statute.  64 ALR4th 963.

Liability of owner or operator of business premises for injury to patron by dog or cat.  67 ALR4th 976.

Liability for injuries inflicted by dog on public officer or employee.  74 ALR4th 1120.

TEXTS--

   Mottla, Proof of Cases in Massachusetts, § §  670, 671. 

                                    CASE NOTES

1. In general

2. Essentials of liability

3. Act of dog entailing liability

4. Owner or keeper

5. Conduct of injured person

6. Pleadings and practice

7. Damages

1. In general

The validity of this section has never been doubted. In re Opinion of Justices (1925) 251 Mass 569, 147 NE 681.

Nothing shows the purpose of this section better than its terms. Canavan v George (1935) 292 Mass 245, 198 NE 270.

Nothing in the terms of this section imports that it is not applicable to a rabid dog. Leone v Falco (1935) 292 Mass 299, 198 NE 273.

The amendment of this section was not intended to have any retroactive effect. Cudlassi v MacFarland (1939) 304 Mass 612, 24 NE2d 512.

Individual may not successfully sue her employer for damages incurred in single incident through instrumentality owned by employer but unrelated to employer's business. Barrett v Rodgers (1990) 408 Mass 614, 562 NE2d 480.

Where employee was attacked by employer's dog when she leaned over to pet dog which had no role in employer's business, employee was barred by exclusivity provisions of Workers Compensation Act from recovering in action seeking damages for physical and mental injuries, disfigurement, medical expenses, loss of compensation, and interference with enjoyment of life. Barrett v Rodgers (1990) 408 Mass 614, 562 NE2d 480.

ALM GL c 140 §  155 is intended to benefit those who are unable to protect themselves from injury by dogs. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

In action by plaintiff who was bitten by dog that was confined behind fence at defendant's residence, it was error for court to grant defendant's ALM CIV Rule 41(b)(2) motion for involuntary dismissal at close of plaintiff's evidence based solely on insufficiency of evidence to establish that defendant was owner of dog, without addressing issue of whether defendant was dog's "keeper." Burgess v Uzarins (1999) 20 Mass App Div 81.

2. Essentials of liability

It is settled that this section does not merely increase the damages recoverable at common law for an injury caused by a dog. It creates a new and different cause of action. Canavan v George (1935) 292 Mass 245, 198 NE 270.

Doubtless one of the purposes of this section was to relieve, as a matter of trial procedure, a person injured by a dog from the burden of proving all the essentials of the common law liability. Leone v Falco (1935) 292 Mass 299, 198 NE 273.

The underlying principle of this section is clearly that the risk of harm resulting from the act of a dog to a person who is without fault, so far as this harm can be measured in damages, is placed upon the owner or keeper of the dog and not upon the faultless injured person. Leone v Falco (1935) 292 Mass 299, 198 NE 273.

The instant section imposes strict liability on the owner or keeper of dog which does damage to a person or property, and proof of negligence or other fault of the owner or of knowledge of dangerous propensities of the dog is not required. Malchanoff v Truehart (1968) 354 Mass 118, 236 NE2d 89.

Dog bite statute (ALM GL c 140 §  155) is indifferent to any question of negligence. Brown v Bolduc (1990) 29 Mass App 909, 556 NE2d 1051.

ALM GL c 140 §  155 imposes strict liability. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

3. Act of dog entailing liability

The liability imposed by this section is not limited to injury caused by biting of dog. Canavan v George (1935) 292 Mass 245, 198 NE 270.

The terms of this section are not narrowed in meaning by the use of the word "assault" in related statutes. (GL c 140 § §  156-159.) On the contrary there is more reason for thinking that the use of the word "assault" in these sections and its omission from §  155 show that it was not intended that §  155 should be limited to injuries resulting from assaults. Canavan v George (1935) 292 Mass 245, 198 NE 270.

Liability under this section is not negatived by proof that the owner or keeper was not at fault; that he neither knew, nor had reason to know, that the dog had any extraordinary, dangerous propensity, or that the dog had no such propensity. The wrong actionable under this section "consists not in the act of the master in owning or keeping, or neglecting to restrain, the dog, but in the act of the dog for which the master is responsible." Leone v Falco (1935) 292 Mass 299, 198 NE 273.

Under the instant section, unlike the common law, the owner or keeper of a dog is liable for injury resulting from an act of the dog without proof that he was negligent or otherwise at fault, or that he knew or had reason to know that the dog had any dangerous propensity. Rossi v Del Duca (1962) 344 Mass 66, 181 NE2d 591.

This section is broad enough to cover injuries caused by a dog running into a person. Poirier v Rogers (1957) 14 Mass App Dec 154.

Visitor to premises where dog was kept recovered judgment against dog's owner on basis of dog bite statute, where St. Bernard dog weighing 125 pounds bit visitor on nose, requiring 48 sutures and resulting in some permanent disfigurement. Brown v Bolduc (1990) 29 Mass App 909, 556 NE2d 1051.

4. Owner or keeper

Where the owner of a dog exhibited it at a fair but maintained control of it and was holding the chain when it broke loose and bit the plaintiff, the operators of the fair were not the keeper within the meaning of this section although the dog was exhibited under their regulation. Cruickshank v Brockton Agricultural Soc. (1927) 260 Mass 283, 157 NE 357.

The owner and the keeper of a dog are not liable jointly and severally as tortfeasors under this section; an election must be made to sue either the owner or the keeper; and if a judgment is obtained against one no suit against the other can be maintained even if the judgment remains unsatisfied. Maillet v Mininno (1929) 266 Mass 86, 165 NE 15.

The fact that a license to keep the dog that the plaintiff alleged caused his damage was issued to the son was evidence that the dog was owned by him, but such evidence was not conclusive--it could be rebutted by evidence tending to show that the defendant was the owner. Curran v Burkhardt (1941) 310 Mass 466, 38 NE2d 622.

Ownership is question of fact for jury. Curran v Burkhardt (1941) 310 Mass 466, 38 NE2d 622.

The plaintiff was entitled to recover if he proved his injury was caused by a dog owned by the defendant, and it becomes unnecessary to determine whether the evidence was also sufficient to show that the defendant was also the keeper of the dog. Curran v Burkhardt (1941) 310 Mass 466, 38 NE2d 622.

In a case where a husband and wife were sued for injuries inflicted by a dog, it was held that the plaintiff having proved joint ownership of the dog in the husband and wife, it was unnecessary for the plaintiff to prove in addition that the husband and wife were joint keepers. Koller v Duggan (1963) 346 Mass 270, 191 NE2d 475.

Where a housekeeper whose employer knew that she habitually walked and fed his dog had obtained a verdict in superior court awarding her damages when the dog injured her seriously while on a walk, for there was a question of fact for the jury as to whether she was keeper of the dog within statute imposing liability upon owner or keeper. Siira v Shields (1972) 360 Mass 874, 277 NE2d 825.

Dog owner's parents who allowed daughter [owner] to live in their trailer rent free and to keep horses there and who visited daughter frequently were not keepers of dog and were not obliged to give warning to daughter's guests about danger from dog or to insist on other precautions. Brown v Bolduc (1990) 29 Mass App 909, 556 NE2d 1051.

Since there was adequate evidence that plaintiff, visiting her sister's house, was not "keeper" of dog and that dog damaged plaintiff, judge erred in allowing directed verdict for defendant dog owner. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

"Keeper" of dog may not maintain action against "owner" of dog under ALM GL c 140 §  155. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

Judge erred in ruling that there was insufficient proof that plaintiff was not "keeper" of dog and in granting defendant's motion for directed verdict in action brought pursuant to ALM GL c 140 §  155, where there was jury issue whether plaintiff's act of moving dog from inside house to back porch fit within general description of keepership. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

Veterinary technician bitten by dog in her care as she attempted to muzzle dog in preparation for operation was "keeper" of dog and thus disqualified for recovery under ALM GL c 140 §  155. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

Defendants were not "keepers" of dog in question within meaning of ALM GL c 140 §  155 merely on basis that dog had stayed in truck in driveway of defendants' home on 2 prior occasions and that dog bit plaintiff while defendant was walking dog on leash. McRae v Siler 1999 Mass App Div 18.

Father (and landlord) of dog owner was entitled to summary judgment in action by social worker who was bitten when visiting owner's premises, even though owner and his father shared same 2-family dwelling, where owner maintained separate apartment, owner had purchased, housed and fed dog, and father never walked, trained, played with or disciplined dog. Seletsky v Ruiz 2002 Mass. App. Div. 100.

Father's mere ownership of a house and his knowledge that his son kept a dog on the premises were not sufficient to raise a triable issue as to father's status as a co-keeper. Seletsky v Ruiz (2002) 2002 Mass App Div 100, 2002 Mass App Div LEXIS 41.

5. Conduct of injured person

In an earlier case, it was said that it is a well-settled rule that the plaintiff in an action under this section, for injuries caused by a dog is not entitled to recover if his own negligence or misconduct contributed to his injury. Ryan v Marren (1914) 216 Mass 556, 104 NE 353.

The strict liability imposed by the instant section is of no avail to a plaintiff if at the time of the injury he was committing a trespass or other tort, or was teasing, tormenting or abusing the dog, and it is incumbent upon a plaintiff to plead and prove that he has done none of those things. Rossi v Del Duca (1962) 344 Mass 66, 181 NE2d 591.

Where a child, pursued by one dog, entered the land on which the defendant kept a dog, in order to escape the pursuing dog, and where the child was injured by defendant's dog, it could have been found that the child was not, as to the defendant, a trespasser but that she had a qualified privilege to enter the land in order to prevent serious harm to herself and, hence, that the child was not barred from recovery under the instant section. Rossi v Del Duca (1962) 344 Mass 66, 181 NE2d 591.

Where plaintiff beauty salon customer was injured by the owner's dog when the customer bent down to pat the dog, it was held that the burden was on the plaintiff to show that she was not committing a trespass or other tort at the time of the injury and that she was not teasing, tormenting or abusing the dog, but it was not enough to bar the plaintiff that her act of patting the dog might have constituted a technical trespass against the dog. Koller v Duggan (1963) 346 Mass 270, 191 NE2d 475.

Under the provision of the instant section barring recovery where the injured person was "committing a trespass or other tort, or was teasing, tormenting or abusing such dog", the word "trespass" viewed in the context of the entire statute, which evidences a legislative recognition of a possessor of land to keep a dog for protection against trespassers, does not include a technical trespass against the dog, as where the injured person was patting the dog when injured. In such latter case, the injured person would be barred only by conduct toward the dog which constituted "teasing, tormenting or abusing" the dog. Koller v Duggan (1963) 346 Mass 270, 191 NE2d 475.

While, under the instant section, the burden is on the plaintiff to prove that she was not teasing, tormenting or abusing the dog, evidence that the plaintiff, who was 3 years old at the time, offered the dog a bone, whereupon he bit her, is sufficient to provide an inference that she was not teasing the dog, and, additionally, the age of the plaintiff could be taken into account in determining whether she was teasing the dog. Malchanoff v Truehart (1968) 354 Mass 118, 236 NE2d 89.

The entry upon the land of another, or into his premises, at usual and reasonable hours and in a customary manner for any of the common purposes of life, is not regarded as a trespass, so that a plaintiff who entered defendant's premises in the daytime to ascertain whether the defendant would permit the plaintiff to ride the defendant's horse for pay, was not guilty of trespass, having had an implied license to go upon the land, and defendant's allegation that the boy was a trespasser, was no defense to the boy's action for personal injuries resulting from his being bitten by the defendant's dog. Raboin v O'Connor (1970) 44 Mass App Dec 24.

A plaintiff who entered onto the defendant's premises in the daytime to determine whether the defendant would permit him to ride the defendant's horse for pay, and who was chased by the defendant's dog, did not "tease" the dog by ramming his bicycle into the dog to prevent being attacked and bitten, so as to establish a defense to the plaintiff's action for personal injuries resulting from being bitten. Raboin v O'Connor (1970) 44 Mass App Dec 24.

A child, 12 years of age, not a trespasser, and not engaged in teasing or tormenting the animal was entitled to recover damages when bitten by a dog. Tornberg v Hairston (1972) 48 Mass App Dec 116.

Record supported judge's finding that plaintiff's striking of dog in attempt to and in course of terminating fight between dog and other dog did not amount to abusing dog, and judgment for plaintiff was upheld. Burgoyne v Owen (1991) 1991 Mass App Div 192.

Plaintiff dog bite victim, a child, was not engaging in tortious conduct which precludes recovery under ALM GL c 140, §  155 by fighting with defendant's child in an essentially harmless child's altercation when defendant turned her dog loose on plaintiff. Dawley v Chase (1977, Mass App Div) 1977 Adv Sheets 856.

6. Pleadings and practice

As a rule, proof that the defendant is the keeper will suffice without more. Ryan v Marren (1914) 216 Mass 556, 104 NE 353.

In an action at common law for personal injuries sustained by misconduct of defendant in setting his dog on the plaintiff the latter need not allege or prove that he was in the exercise of due care. But on obtaining a verdict plaintiff is not entitled to double damages because recovery is at common law and not under this section, as it formerly read. Zink v Foss (1915) 221 Mass 73, 108 NE 906.

This section in terms is broad enough to impose liability where the declaration alleges plaintiff was "injured" by dog. Canavan v George (1935) 292 Mass 245, 198 NE 270.

An instruction that "the burden of proof was upon the defendant to establish by a fair preponderance of evidence that the plaintiff was injured as a result of his teasing, tormenting or abusing the dog," was erroneous and harmful, notwithstanding ALM GL c 231 §  85, providing that contributory negligence shall be an affirmative defence to be set up in the answer and proved by the defendant. Sullivan v Ward (1939) 304 Mass 614, 24 NE2d 672, 130 ALR 437.

7. Damages

Where plaintiff was injured at time when the statutory liability of the defendant was "double the amount of damages sustained," a vested right to double remedial damages arose, as right was not affected by the 1934 amendment to this section, which was not intended to have any retroactive effect. Cudlassi v MacFarland (1939) 304 Mass 612, 24 NE2d 512.

The phrase "damage to either the body or property of any person" appearing in the instant section, does not mean that recovery thereunder is limited to damages which are the direct result of an injury but, under the statute, recovery may be had by a parent for consequential damages. Rossi v Del Duca (1962) 344 Mass 66, 181 NE2d 591.

Judge erred in trebling damages found by jury, where citations issued by dog officer for apparent violations of municipal leash law were not restraint orders issued under ALM GL c 140 §  157 which, if issued, would have permitted trebling of damages. Carmel v Grandbois (1988) 25 Mass App 1000, 522 NE2d 428.

In action for damages against owner of dog, plaintiff is confined to compensatory damages authorized by ALM GL c 140 §  155 in absence of restraint order issued under ALM GL c 140 §  157. Carmel v Grandbois (1988) 25 Mass App 1000, 522 NE2d 428.

Judge erred in ruling that plaintiff had not sufficiently proven that dog proximately caused her injuries and in granting defendant's motion for directed verdict in action brought pursuant to ALM GL c 140 §  155, where plaintiff was holding dog's collar in one hand and undoing chain with other hand when dog ran forward, pulling plaintiff over and causing her to fall and severely injure her hip, even if dog's behavior was affectionate and not malign and even if there was no direct collision or contact between dog and plaintiff. Salisbury v Ferioli (2000) 49 Mass App 485, 730 NE2d 373.

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