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Dog Bite Cases in a Strict Liability State Like Massachusetts (Podcast)

Robert Mazow and Kevin McCullough of the law firm Mazow-McCullough, a law firm dealing with personal injury and dog bite cases, discuss dog bite cases in a strict liability state like Massachuetts.

John Maher: Hi, I’m John Maher. I’m here today with Robert Mazow and Kevin McCullough of the law firm of Mazow-McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Robert and Kevin have a great deal of experience as dog bite attorneys, and today we’re talking about dog bite cases in a strict liability state like Massachusetts. Rob and Kevin, welcome.

Robert Mazow: Thank you, John.

Kevin McCullough: Thank you, John.

Dog Bite CasesDog Bite Law and Strict Liability States

John: Kevin, when it comes to dog bite law, Massachusetts is what’s called a strict liability state. What does that mean?

Kevin: John, strict liability really refers to the burden of proof. In a typical lawsuit or a typical case, the person bringing the lawsuit is known as the plaintiff, and they would have the burden of proof in the legal system or in the court system. What that means is they have to tip the scale in their favor by showing through some evidence or through some facts that they should prevail. That is sort of the starting point for most cases. However, with a strict liability situation, like a dog bite situation in Massachusetts, that burden of proof shifts ever so slightly before you even start the case. In other words, in a dog bite situation, it really immediately shifts to the dog owner or the dog keeper at the time of an incident to show that they didn’t do something wrong or that they may have a certain defense to a claim. A strict liability analysis is something that is very favorable for someone who’s injured because they’re coming out of the gate with the strength of the facts and the law to be able to move forward with their claim for damages.

John: If you could, Kevin, just sort of explain do I have to prove anything in terms of was it actually that dog that bit me or is there any burden of proof on my end? Because what you’re saying is basically that it’s really the defense that has to defend themselves and I don’t really have to do much in the way of proof. But what type of proof do I need to give at all that I was injured and it was this dog or this dog owner’s fault?

Kevin: That’s a good question, John. You do have to prove that an incident actually occurred. Similar to a car accident case, a plaintiff would have to prove that the incident actually occurred and then they would then have to prove that the other person is at fault. In a dog bite situation, with that strict liability, you still have to prove obviously that an incident occurred that you were bit, which should be relatively simple based upon an injury or damages and photographs. But as soon as you prove that an incident did occur and that you did suffer a bite or an injury, that burden shifts immediately to the dog owner or the keeper of the dog at the time. It shifts in that they are responsible, they are at fault, and now if they have some defenses that they may raise to show that they weren’t at fault or that the plaintiff in fact did something to cause the incident. The defendant would have the ability to present those defenses, but a strict liability law, like a dog bite law, is very strong and very favorable for the injured party.

John: Okay, that’s good clarification. Rob, are there any exceptions to this strict liability rule?

Robert: Well, the strict liability rule is a strict liability rule. The defenses that one could raise are limited in Massachusetts, and that would be if the victim of the dog bite was trespassing, was teasing or tormenting the dog. Let me give you an example. If a child, let’s say 15-year-old child, somebody who has reason to know what trespassing is and isn’t, hops over a fence into somebody else’s yard and their German shepherd bites them, then certainly a case could be made that the dog owner is responsible for the dog bite because they own the dog at the time of the bike, but the defense is going to be, and it’s going to be a good defense and probably would weigh very heavily in a jury’s mind, was that the child was old enough to know right from wrong, trespassed and basically assumed the risk that something like this could happen. That’s a kind of defense that you see raised in a dog bite case.

Another kind of defense is if somebody is walking down the street and the dog approaches them and you start poking the dog with a stick, you’re tormenting the dog, you’re teasing the dog. Well, the dog doesn’t have rational behavior. The dog is going to act by instinct and might bite to defend themselves. That would be another kind of defense you might see. Again, that would be a kind of defense, if proven, would weigh very heavily in favor of the defense, the dog owner.

Those are the kinds of things that we’re going to want to look at. Particularly with a child, it’s always raised as a defense, “Oh, the child was teasing my dog. The child was trespassing.” So those are the kinds of things that we’re going to want to get a handle on very quickly to make sure that if those kind of issues are raised we’ll have a response to them if it’s available.

John: Right. You mentioned this case of maybe a 15-year-old knowing the difference between right and wrong and knowing what trespassing is and that they shouldn’t jump a fence like that. Is there an age that is set that determines whether or not somebody is old enough to know better, or is it subjective and is that what comes up if this goes to trial?

Robert: It’s not a set age, but they usually say anything lower than five years old or so, the defense of trespassing or teasing might not be so strong because the child doesn’t have the kind of reason that you might have. Or let’s say if somebody else is mentally handicapped in some way, there may be some different areas of room that you can have to discuss whether or not the person actually knew what they were doing was trespassing. So there’s no set age, but in Massachusetts they tend to say that the younger the child is, the less likely they’re going to be able to have the reason to know right from wrong. Those are the kind of areas you see that in.

Trespassing and Strict Liability Dog Bite Law

John: Okay, Kevin, do you have to go to court to determine if the victim was trespassing or maybe provoking the dog? What happens if you have been found to have been doing one of those things, that you were teasing the dog and you jumped a fence and you went in their backyard, or something like that? Does that just automatically throw the case out, or what’s the deal?

Kevin: It doesn’t automatically throw the case out, but it is a very fact-intense analysis. What I mean by that is every case is different and if there is a dog bite case where the defendant or dog owner is asserting trespass, tormenting or teasing as a defense, it really puts the burden on that party to prove those facts or that allegation. There may be witnesses to the dog bite or the dog attack that may talk about a child hopping a fence or entering someone’s property. There may be witnesses involved as far as trying to prove that a plaintiff or person that was injured was somehow teasing or tormenting the dog. But those situations and those defenses when they come up are very fact-intensive. Oftentimes, what we typically see is the dog owner being the only person able to testify or offer evidence that the person was trespassing or the person was teasing or tormenting the dog.

Kevin: If that’s the case, it’s really who do you believe. Again, if there are independent or unbiased witnesses, oftentimes those witnesses will prevail and provide evidence or testimony to show which side is being truthful and which side is telling the truth, but when it’s word versus word, those are the situations that may ultimately go to trial or may have to come out in a courtroom and have the jury decide who you believe.

But what we typically see on a practical analysis of these situations is those are the talking points between our office or the insurance company, where there may be an allegation or an accusation the defense raised and then we’ll flush out through evidence, through depositions, through written discovery and questions, document requests. We’ll focus on what that defense is that’s raised, we’ll find out if it’s valid, if it’s truthful. Ultimately, if we can’t talk through and negotiate the strength of that evidence, we’ll try to settle the case. Ultimately, yes, we could be in trial in a courtroom and having a jury decide was there a trespass or tormenting or teasing involved, as raised by the defendant in a case.

John: Couple of followup questions on trespassing. One, what is considered trespassing? Is it just if a yard has a fence and you’ve hopped the fence or gone through a gate uninvited or something like that, or could I be considered trespassing if I just walk up the walkway to the front door and knock on the front door or something like that?

Robert: All right, well the first part is, let’s say you have a dog behind a fence and the fence has a warning that the dog is there or No Trespassing signs and a person decides to hop the fence. I think there’s a pretty good no trespassing defense in that case if a person’s bit by dog. Walking up to somebody’s front yard to ring the doorbell or to deliver something, I don’t believe you are going to be successful with a trespassing defense if the dog bolts at you and causes injury. That’s because a person has a reasonable expectation not to get bitten by a dog or attacked by a dog if they are walking up somebody’s front yard.

It’s when they enter an area that’s not open to the public, that somebody wouldn’t expect them to be. I’d say somebody’s backyard could be considered trespassing. If you’re cutting through there to get from one street to another street and the dog attacks you, you’re in somebody’s backyard, well, you’re going to see the defense of trespassing raised there. But walking up the street or walking up the sidewalk or walking up the front door, I don’t believe a jury is going to take that very seriously if a trespass defense is raised in that case. Then that would be raised all the time and I don’t think that that’s what the courts are expecting to see happen in these dog bite cases.

John: Right. You brought up actually the second point that I wanted to bring up, which was what if there are signs posted that either say Do Not Trespass or maybe Beware of Dog or something like that, does that make it more obvious that this would be a trespassing case?

Kevin: John, that’s why these cases are so fact specific. Whether or not there are signs posted would strengthen the argument or the position from the defendant that the plaintiff should not have been in the yard or on their property. If there were no signs posted, why was that person on the front porch or on the property? When there’s a fence involved and someone’s hopping a fence or climbing over a fence, that’s one situation, but nowadays we see these fenceless perimeters with dogs allowed to run free on someone’s property. They’re contained or limited to the property, but there is no fence there. So a child or even a teenager may enter someone’s property or driveway for a particular reason and not even see the dog or know that there’s a dog present, and they may be bit by the dog on the property, but there may be reasons justifying why they were on the property, as Rob mentioned a few minutes ago. It really comes down to what that expectation is or what it should be with a particular case.

I mean, that’s why it’s so important to gather that information, to gather witness information and to do that full investigation when an incident occurs, because all of those little things that you may not be thinking about at the time that an incident occurs are reasons why hiring an attorney on a case like this to gather and capture all of that immediately may be helpful down the road in order to present and prove your claim.

John: Okay. Rob, finally, does Massachusetts being a strict liability state generally mean that dog bite injury cases are easier to win?

Robert: I’m not going to say any cases are easy to win. I think there are less hurdles that you otherwise would need to get over in a regular case, but winning is very subjective. They’re not easy to get a jury to give a significant amount of money to. You’re more likely to get a plaintiff’s verdict, but again, a plaintiff could win, it’s just a matter of how much or what a jury is going to give. Each and every kind of case has its own challenges, even dog bites happening to have a strict liability standard allows us to get to a jury more efficiently.

John: All right, that’s great information. Rob and Kevin, thanks again for speaking with me today.

Robert: Thanks, John.

Kevin: Thank you, John.

John: For more information on dog bite cases or other personal injury cases, visit the firm’s website at helpinginjured.com or call 855-693-9084.

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