As a result of a bite by a pit bull terrier named Tiny, ten year old Killian Nutt (plaintiff) filed a multiple count complaint
Background. The summary judgment record here was developed largely through deposition testimony. "We recite the material facts in the light most favorable to [the plaintiff], as the nonmoving party." Lyons v. Nutt, 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. Attorney Gen. v. Bailey, 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 in Waltham (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 was unlicensed, was not vaccinated for rabies, and was unrestrained, in violation of the municipal leash law.
Earlier in the summer of 2005, Grace Morrell, 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. Although Morrell 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 Nutt had kept dogs at the premises and Florio made him get rid of them. Nutt also testified that Florio made him get rid of dogs he owned at the premises. Hamblett testified that she and Nutt received a letter from the landlord in 1997 stating that no dogs were allowed on the premises and as a result, she and Nutt got rid of their two dogs.
Finally, Ann Campobasso, inspector of animals in Waltham 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
Discussion. A. Standard of review. "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." Nelson v. Salem State College, 446 Mass. 525, 530 (2006), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 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 Kennie v. Natural Resource Dept. of Dennis, 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 Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 794 (1987); Roderick v. Brandy Hill Co., 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. Manning v. Nobile, 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 Glidden v. Maglio, 430 Mass. 694, 696 (2000); Lieberman v. Powers, 70 Mass.App.Ct. 238, 242 (2007). See also Restatement (Second) of Torts § 281 (1965).
B. Negligence claim. 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 of a dog is liable ... for injury resulting from an act of the dog without proof ... that its owners or keeper was negligent
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.
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." Or v. Edwards, 62 Mass.App.Ct. 475, 484 (2004). See Griffiths v. Campbell, 425 Mass. 31, 34 (1997). See also Toubiana v. Priestly, 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").