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Massachusetts Dog Bite Law– You’ve Been Bitten, Now What?

There are three main points to consider when it comes to dog bites in Massachusetts: 1) Dog Bites are a strict liability offense in Massachusetts; 2) Strict Liability does not apply if you were “teasing, tormenting or abusing” the dog or if you were trespassing; and 3) There is a presumption that a child under seven is not teasing or tormenting or abusing the dog when he or she is bit.[1]

Strict liability arises when someone is deemed to be legally responsible for loss or injury to another, regardless of fault.

Of course in dog bite cases, as in much of Massachusetts injury law, there are exceptions to the general rule: a) if the person bitten is trespassing or b) if you were tormenting the dog, abusing it, or teasing it. An example of trespassing arises in a situation where someone may be breaking into your home and your dog attacks him; or breaking into a junkyard after hours, and the junkyard dog gets you.  The second exception prevents a dog owner from being liable to the person bitten if that person was deliberately or intentionally annoying or irritating the dog. For example if you hit the dog and then, in response, the dog bites you back – no strict liability.[2]

There is, however, a difference between teasing or tormenting a dog and playing with it. “It is common knowledge that ordinarily dogs enjoy play with humans. When a person engages in such play, it is not natural for a dog to resent it or to be irritated by it to the extent that the dog will attack.” [3] A dog is not being tormented or teased when someone is playing fetch with it. Thus, if the dog bites someone during a game of fetch or playful wrestling, the dog’s owner may be strictly liable.

Additionally, the law presumes that if a dog bites a child under the age of seven, the child was not trespassing on another’s property or teasing, tormenting or abusing the dog. Typically the victim must prove that when he or she was bit by a dog, it was 1) owned by the defendant; 2) that she was not trespassing on the defendant’s property and 3) that she was not abusing, teasing, or tormenting the dog. But, if the person bit was under the age of seven, the burden shifts and the owner must prove that the person bit was trespassing or teasing or tormenting the dog.

Of course, even if strict liability does not apply, the owner of a dog who bites may be responsible for injuries under typical negligent rules. So when there is a dog bite, it is important to make note of:

  1. the age of the person being bit;
  2. who is the owner of the dog;
  3. the location of the person when he or she was bit by the dog;
  4. what he or she was doing with the dog when she was bit; and
  5. then get pictures of the dog and the injuries.

So if you’ve been bitten and injured by a dog:

  • Clean the wound and use antiseptic
  • Take pictures, then:
  • Call your lawyer.

[1] Mass. Gen. Laws ch. 140, § 155.

[2] It is almost as if the dog (or its owner) is entitled to the stand your ground defense.

[3] Malchanoff v. Truehart, 354 Mass. 118 (1968).

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