Dog Bites and Negligence - Mazow

Rob Mazow and Kevin McCullough of the Law Office of Mazow McCullough sit down with

John Maher to talk about dog bites and negligence. They explain the strict liability for dog owners and keepers in Massachusetts and New Hampshire. And then, they outline when others may be held responsible for negligence.

John Maher: Hi, I’m John Martin. I’m here today with Rob Mazow and Kevin McCullough of the law office of Mazow McCullough. Today, we’re talking about dog bites and negligence. Welcome, Rob and Kevin.

Rob Mazow: Hi John, how are you?

Kevin McCullough: Hi, John.

Do Dog Bite Victims Have to Prove the Owner Was Negligent?

John: Good. So in a dog bite case, does a dog bite victim have to prove that the owner was negligent?

Rob: Not in Massachusetts or New Hampshire, which is where we practice. They’re both strict liability states. What that means is that the owner of the dog or the keeper of the dog at the time… And when I say keeper, I mean, it could be a neighbor watching the dog or a dog walker that you hire to take care of the dog. They would be both responsible, regardless of any negligence, regardless of any knowledge that the dog may or may not have a propensity to bite. The dog owner or dog keeper are strictly liable for any damage that the dog causes.

Can Dog Bite Victims Pursue Compensation Under a Negligence-Based Theory?

John: And can a dog bite victim pursue compensation under a negligence-based theory, though, if they want to or if they feel like the dog owner was negligent?

Rob: Well, a negligence theory is a harder and higher burden than a strict liability. What strict liability means is that the dog, if it bites, the dog owner or the dog keeper is responsible. To prove negligence, creates a higher burden for a plaintiff, for an injured party, to get over.

They would have to show that the dog owner knew or reasonably should have known that the dog could bite or attack. And in Massachusetts, thankfully, you don’t have to do that, but there are other avenues, if you want to try to recover compensation for a dog bite, you could look to a negligence theory, perhaps, against a landlord. Let’s say a landlord rents their apartment to somebody who owns a dangerous dog. Let’s say it’s one of the known dogs with a bad history of… Let’s say it’s a pitbull who’s bitten before and the landlord knew or reasonably should have known that that dog could bite. The landlord could be sued under a negligence theory that they had a duty not to rent to somebody who owns a dog like that, that they still did rent to a person with a dog like that, and that that dog caused an injury.

You might want to look for a case like that if the dog owner doesn’t have insurance coverage. So even if you have a strict liability claim against the dog owner, there’s no avenue of recovery. They don’t have homeowner’s insurance. They don’t have renter’s insurance. That’s the kind of time you might want to look to the landlord. And Kevin, actually, years ago, did have a case like that, where… Well, Kevin, you can talk about it, but I think it was a bad fence that the landlord had or something.

Example of Landlord Liability in Dog Bites Cases

Kevin: Yeah. It’s actually a very good question, John, and it just highlights the fact that if someone is the victim of a dog bite or a dog attack, it’s critical and important to go to someone who’s experienced, to go to a lawyer or a law firm who has handled dog bite cases with different fact patterns.

Every case is different. And when we meet with clients who are victims of a dog bite or a dog attack, as Rob mentioned, the dog owner or the dog keeper, in Massachusetts and New Hampshire, is strictly liable. No questions asked. So long as there’s no teasing or tormenting the dog, the dog owner, or the person responsible for the dog at the time of the bite, are strictly liable and legally responsible. However, there are times that other parties or other entities may also be at fault, responsible, or held negligent.

And the case that Rob was referring to was, in fact, a situation where someone who was not the owner of the dog and was not even the keeper of the dog at the time was partially responsible for a particular incident. And that was under a negligence theory, as you mentioned. So the owner and the keeper are strictly liable, but there can be other people who take on this role, who take on this duty that they owe to people who come onto their property or walk by their property.

And as Rob mentioned, the case that we had involved a property owner who knew that the tenant had a dog and kept a dog, and the property owner allowed that dog to be on the property. In fact, the property owner directed the tenant who had the dog where in the yard they could let the dog roam and run around. And, in that situation, the dog got off of the… Or out of the property, rather, and attacked a young child and injured the child.

In that situation, we pursued and recovered against the dog owner, the dog keeper, but also the landlord and the property owner because when that property owner knew the dog was present, told the tenant where in the yard the dog could go, but yet failed to keep that area safe and prevent the gate from opening, that landlord, that property owner, breached the duty owed to anyone walking by, including this young child.

So it is very important to gather as much information as you can when you’re meeting with a victim of a dog attack to see if multiple people can be at fault or be held responsible. And that’s critical when you’re tracking down insurance coverage to compensate victims for these injuries.

When Should a Dog Bite Victim Pursue a Negligence Claim?

John: Right. So in what cases would a dog bite victim want to or not want to pursue a negligence claim against somebody? Rob, you said that it’s a harder case to win. Is it an all or nothing thing, where if they go after it from a negligence perspective, that they could just lose everything? Or what would be the reasons why they would want to pursue that or not?

Rob: So let’s give an example. Let’s say you’ve got somebody who was terribly injured by a dog. Let’s say permanent scarring on their face, and they would be entitled to be compensated from some source for those injuries. Now, let’s also say that the dog owner or the dog keeper, who would otherwise be strictly liable, in other words, 100% responsible for the actions of their dog, doesn’t have insurance, doesn’t have any assets, doesn’t have any money. So where do they turn to?

They have to, like Kevin said, if they talk to an experienced attorney, they have to say, “Okay, what are our options here? What can we do?” We would look to see whether or not there would be somebody who might be negligent and held responsible for what happened here, the landlord, for instance, that Kevin said, somebody else who might have allowed that dog bite to happen.

Let’s say somebody, who has nothing to do with the dog but the dog was on their property for some reason and they knew about it, opened the gate and allowed the dog to go and attack. So that would be a case where you would have to look at negligence as opposed to strict liability.

John: Because with the strict liability, they’re not going to get anything from that, because the responsible person doesn’t have insurance. They’re not going to get anything, so that’s your only avenue.

Rob: Right. So it would be those circumstances where we would have to look at other areas, and we would end up having to prove negligence, negligence being the person had a duty. They breached that duty. It was foreseeable that this could happen.

Those cases are harder to prove, obviously. You have to prove a lot more things than you do in a strict liability case, but if you have a serious injury and there’s no other avenue of recovery, you’re going to want to look and see whether or not there’s somebody that might be negligent.

When Do You Identify the At-Fault Parties?

Kevin: And I do want to address one of the points directly, John, that you raised in your question, because I think any dog bite victim listening to this information, it’s not an all or nothing thing that has to be decided at the outset of the case or at any time during the case. It’s something that when we evaluate a case and we sit down with a client and we see who’s responsible or who may be responsible for what happened, it can be one person, it can be two people, it can be five people, and those are referred to, at-fault parties or defendants. We would pursue all of those individuals.

And if, during the pursuit of the recovery for our client, if some of those defendants settle with us or if those cases get dismissed for any reason, that doesn’t prevent us from moving forward with the parties that are left or remaining in the case. So it’s something that a victim has the right to pursue any and all recourse. And it’s critical that they do pursue any and all recourse for those damages. And it isn’t necessarily, “I didn’t pursue them initially, so I can’t pursue them, or I have to choose which one.” No, that’s not the situation. You can, and we do, pursue all potential defendants for recovery of those damages suffered by that victim. And the idea is to make them whole.

What Defenses Do Dog Owners Use?

John: And then, finally, what are some of the defenses that a dog bite owner might use to fight a claim of negligence that’s brought against them?

Rob: Yeah. Kevin had touched on it briefly earlier. The only defense to a strict liability dog bite statute is if the person who was injured was teasing the dog at the time, tormenting the dog at the time, poking him with a stick, something like that, or trespassing. And there are some exceptions even to those. And I’ll get to those in just a second.

But an example would be, if a person is walking through somebody’s backyard, is trespassing, and the dog attacked them, well, shame on the person for trespassing. And that’s a defense to the strict liability of dog biting. Now, sometimes you see very young children. I’m talking about eight years old and younger, five years old, who might poke a dog or might be trespassing in some neighbor’s yard. Now, they don’t have the maturity to know the difference. So, in those instances, those defenses won’t really work. But if you’re talking about a teenager or an adult who’s poking a dog or trespassing or teasing a dog and they get bit, well, that’s a defense that the dog owner or dog keeper is going to make.

John: Because they should reasonably know better.

Rob: Exactly. Right. Yeah.

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

Rob: Thanks John.

Kevin: Thank you, John.