Background:
In Massachusetts, a well-meaning homeowner wished to enhance he and his wife’s relationship with the neighbor family. To achieve his amiable objective, he invited the neighbor’s 2-year-old child to become familiar with his German Shepherd. The 2 families had detached homes with a common fenced backyard. Therefore, it was easy for the male dog owner to coax the child to walk toward the dog.
The child, clad only in a t-shirt and diaper, willingly entered the neighbor’s side of the yard. Then, the dog owner instructed the child to interact with the German Shepherd via the medium of toys and treats.
Unfortunately, early in their engagement, the dog suddenly clamped his teeth about the child’s right arm. Almost instantly, the child screamed in fear and agony. The force of the bite twisted the child’s arm, whereby torsion hurled the child to the ground. Force and torsion from the bite, combined with impact upon the ground, caused the child to suffer a supracondylar humerus fracture- Type 4.
Plaintiff and Defendant Witness Statements:
The mother of the child (Plaintiff), who stated she witnessed the event, believed the German Shepherd’s actions were “vicious.” She supported her characterization by describing the dog’s failure to immediately release its bite after the child fell to the ground. Moreover, the dog ignored multiple owner commands to release its bite.
In contrast, the dog owners (Defendants) countered that the mother did not witness the actual event. In their depositions, they responded the mother observed only the aftermath. Furthermore, in their opinion, the dog remained calm throughout its interaction with the child. The dog merely attempted to grab a toy held by the child. In the process, the dog accidentally contacted the child with its teeth. And they stated the dog released its bite rapidly and independently, without a command.
Nevertheless, the parties did not dispute that the child was injured. More importantly, they agreed the proximate cause of the injury was oral contact from the German Shepherd.
Massachusetts State Law:
Massachusetts state law Part 1, Title XX, Chapter 140, Section 155 states that if “any dog” does “damage to either the body or property of any person” the owner shall be liable, unless the person damaged was trespassing, committing a tort, or teasing, tormenting, or abusing the dog. Thus, the law imposes strict liability. Moreover, should an exemption possibly apply, the burden of proof lies with the Defendant (dog owner).
Yet, the Defendant’s homeowner’s insurance carrier was slow to negotiate in good faith. Furthermore, the carrier insisted that the mother’s careless parent-child supervision was the primary cause of the child’s injuries. Therefore, a CPT expert proved valuable.
The CPT Expert’s Opinions:
The CPT report elaborated on:
- the dog’s lack of prior socialization with toddlers;
- the owner’s lack of education in supervising dog-child interaction;
- poor owner supervision of the dog during the interaction;
- how including a toy in the interaction likely initiated possessive aggressive behavior;
- the difference in neural velocity between and adult dog and a human child;
- the difference in coordination and speed between an adult German Shepherd and a human child;
- the bite force of an adult German Shepherd;
- how the bite force, mass, and superior athletic ability of the dog created a situation where the child had little ability to evade the animal once it exhibited aggression;
- epidemiological data regarding dog bites inflicted upon young children;
- information in the public domain regarding the injurious potential of German Shepherds;
- medical research regarding how torsion and elbow impact with the ground frequently cause pediatric supracondylar fractures;
- how the harsh human-dog communication of the male owner exacerbated the dog’s stress, which in a video was observable via the dog’s facial and body language changes.
In summary, when inviting the child, the dog owners enticed a situation for which they were uneducated and unprepared. They carelessly failed to consider the size, athleticism, and power difference between their 6.5-year-old German Shepherd and the 2-year-old toddler. Moreover, they failed to recognize the aggressive potential of their dog.
Their actions carelessly created a situation that initiated canine anxiety and injurious dog-child possessive aggressive behavior. In toto, through their purposeful actions, the Defendants negligently provoked the child’s injuries. Once inviting the child to their property and accepting supervision, they failed to prudently acknowledge risk and neglected to exercise an appropriate duty of care to the Plaintiff.
The Result:
The CPT expert report armed Plaintiff counsel with a greater number of arguments and superior strength when supporting claims. Subsequently, counsel successfully prodded the insurance carrier to significantly increase its settlement offer. Ultimately, the case settled favorably for the Plaintiff client.
Massachusetts state law Part 1, Title XX, Chapter 140, Section 155