Wednesday, October 28, 2009
Waltham, MA - The second-highest court in Massachusetts recently ruled that a landlord may be held accountable if a tenant's pit bull goes on the attack. The Court specifically singles out the breed as one known to have a propensity for aggression. The appeals court ruling, which reversed a lower-court decision, arose from a 2005 lawsuit against landlords Emil and Clara Florio in which a 10-year old boy's leg was badly injured by their tenant's pit bull named Tiny.
The appeals court opinion, written by Justice Gary Katzmann, stated: "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." Katzmann ruled that the lower court erred in dismissing the negligence charge. The case was returned to superior court for further proceedings.
In its argument, the appeals court made use of a 2008 state Supreme Judicial Court decision -- which had not been issued at the time of the lower-court's ruling -- that found pit bulls are "commonly known to be aggressive." In that decision, the Court determined police officers may not have to "knock and announce" their presence to execute a search warrant if a pit bull is on the premises. The ruling comes as state lawmakers push to update existing animal control laws.
Killian Nutt vs. Emil A. FlorioOn July 18, 2005, 10-year old Killian Nutt was playing in a sprinkler when Tiny the pit bull "bolted" from its porch, "leapt into the air and over the retaining wall" and violently attacked Killian. According to Harry Vlachos, the attorney representing Killian, the appeals court ruling says that it is "up to a jury to decide whether a pit bull has to bite somebody before it's considered dangerous." He added, "What it says is pit bulls may present certain issues that Lassie doesn't."
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." [Note 7] Commonwealth v. Santiago, 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. Id. at 578.
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").
Related ZUPF video
11/17/08: Common Wealth vs. Luis Santiago
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| 10/28/2009 2:25 PM |
As far as I am concerned, not a landlord in Massachusetts (other than an absetee slumlord) could now allow a pit bull in a tenants apartment. This ruling should be followed by mandatory spay and neuter laws to slow down the glut of unwanted pit bulls that are being bred by criminals and losers by the thousands. Pit bulls are the dog of choice for low income transients...I would LOVE to know how many pit bull owners actually own their own home. I would like to see the insurance companies beocme more involved, and offer a hotline to people to report neighbors uninsured pit bulls.
| 10/29/2009 1:11 PM |
If you take a look at Boston Craigslist, its loaded with people dumping their pit bulls, and rescues pleading for folks to adopt out pit bulls. Some pit bulls are dumped on CL, only to appear again and again. Some of the pits dumped are dangerous and aggressive, with owners who plead that their lovable pit "doesn't like kids" or "doesn't like other dogs". Its a disgrace that breed advocates continue to protect the criminal breeders and animal abusers by fighting any reasonable restrictions on breeding, then blame the media, landlords, and everyone on the planet for not running out and adopting one of these dogs, so the thugs and dog fighters can breed more.
Its such a bizzare dynamic...I wish child safety advocates could partner with the insurance companies to work together to reduce risk by providing a hotline for people who want to report an aggressive pit bull, or other dangerous dog.
| 10/30/2009 2:02 AM |
THANK GOD a judge has sent this to a jury: "It is up to a jury to decide whether a pit bull has to bite somebody before it's considered dangerous."
Every jury member -- your normal hardworking American -- understands that pit bulls are dangerous. In the environment of a courtroom, jurors will easily acknowledge the "ugly, invisible elephant in the room."
| 11/06/2009 9:22 PM |
Attorney Bruce Bierhans blogged about this:
"In effect, the court is saying that if a pit bull is involved, you don't necessarily have to show that the dog attacked in the past. The landlord's knowledge that a dog is or may be aggressive may impose a burden on a landlord to be alert for their tenants' safety, particularly where there are complaints from other tenants, or other evidence of "potential" aggression. As stated by Lawyers Weekly, a landlord may now be liable for injuries even though the landlord was not the animal's owner and there was no evidence that the animal had ever attacked anyone before."
| 11/06/2009 9:29 PM |
I'm sure the jurors are asked this question. A friend of mine was recently asked by the prosecution (in a domestic violence case) what talk radio shows she listens to. She said "NPR" and they booted her (presumed to be a liberal).