Pit Bulls Singled Out
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. Florio
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").
On 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."
11/17/08: Common Wealth vs. Luis Santiago