The curious case of Governor, the 3-legged dog, who allegedly bit Michiline and Lancer, a dog who belongs to Michael, Micheline’s 95-year-old friend. Although factually there is some confusion as to whether or not Michiline was attacked by Governor, Lancer was bitten by Governor, or both were bitten by Governor (who apparently is very sprightly). Michiline did not say she was bitten until she saw blood on her leg.
This case has prompted me to review the law about dog bites and liability. Boards frequently become embroiled in disputes where unit occupants either have dogs without permission or authorization, have dogs with permission and authorization, or are subject to confrontation with dogs when on the common area. Leaving aside poor Michiline who was awarded less than $5,000.00 after trial (with testimony from several doctors and an economist), what are the rights and liabilities of the various parties in question? (Of course, this article does not in any way address service animals or emotional support animals.) I’m talking about dogs who are pets and not maintained for any other reason.
I have actually had people ask if it is true that every dog is entitled to one bite. While I am sure Governor’s owner would agree, that simply is not the law. It is difficult in law to show strict liability, but dog bites are one of the few areas where strict liability exists. Mass. General Laws Chapter 140, Section 155, specifically states that if a dog damages a person or property, the owner or keeper of the dog is liable for the damage, unless the injured party was trespassing, teasing, tormenting, or abusing the dog. (One of the few times it is permissible to blame the victim.)
Although many associations feel that there are “dangerous breeds” here we have Governor, the 3-legged dog, injuring Michiline and possibly Lancer, the elderly gentleman’s dog.
Is it enough for an association to take the position that the dog owner is always responsible and therefore we don’t have to do anything? Not really! First, nobody wants to see dogs (3-legged or otherwise) running around on the property. Even fluffy little dogs can bite…hence the nickname ankle biters. Secondly, they can really cause damage to the property. Thirdly, Boards need to respect the attitudes of the owners … and this is one area where Boards can exercise their rulemaking power without fear of charges of abuse or charge of discrimination. (Remember, I said I am not talking about service animals or discrimination. Just as rules can be made governing owners and occupants behavior on the common area, so can rules be drafted that govern dogs on the property.
Here is also a little-known law that governs “nuisance” dogs. Chapter 140, Section 136A, defines a “nuisance dog” as one which by excessive barking is a source of annoyance to a sick person residing in the vicinity or by excessive barking causing damage or other interference that a reasonable person would find such behavior disruptive to one’s quiet and peaceful enjoyment or has threatened or attacked livestock, a domestic animal or a person but such threat or attack was not a grossly disproportionate reaction under all these circumstances. Unfortunately, the statute does not provide any information as to what happens to somebody who maintains a nuisance dog as far as the municipality is concerned but associations can very often provide funds in increasing amounts whenever there is a confirmed report of a dog being such a nuisance within the community. As a personal note, as the owner of a beloved but barking dog, this is one of the reasons I always tell people that I will never live in a condominium. I know my dog would be a nuisance with his excessive barking because he annoys me let alone neighbors!
Seriously, well drafted, and evenly enforced rules are the best way to avoid any problems that can arise from maintaining a dog. The usual hearings and fines apply to determinations of violations. However, in an appropriate case, court orders can be sought and have been given for the removal of a dog where the board has brought an action for violation of the rules when unit owners refused to obey them.
To read the Decision [click here].
Written by
Ellen Shapiro
ellen@amcondolaw.com
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