Massachusetts Appeals Court Finds Landowner Not Responsible for Tenant’s Dog

By | March 8, 2021

Victor Creatini says he was taking a bike ride with his dog on a leash beside him when a pit bull ran into the street and attacked his dog, causing him to fall from his bike and suffer injuries.

Although Creatini argued the owner of the property where the dog was unleashed and unfenced breached a legal duty to protect him from the pit bull, the Massachusetts Appeals Court says that isn’t the case, as the dog was kept on the property by the landowner’s tenant.

Mark McHugh owned a multifamily dwelling where he lived on the second floor and had known for more than a year that Sean Mills, his first-floor tenant, kept a dog at his apartment, according to the Appeals Court decision. McHugh says he had previously asked Mills to get rid of the dog, describing it as a mixed breed and speculating that pit bull could have been one of the breeds.

At the time of the accident, Creatini and McHugh had never met. Although Creatini suffered injuries when he fell off of his bike, he was not attacked or bitten by the pit bull. Still, he claimed that his injuries were a foreseeable consequence because McHugh did not properly store the pit bull on his property.

A Superior Court judge initially disagreed and allowed summary judgment for McHugh, and Creatini appealed.

The Massachusetts Appeals Court explained in its decision that in order for a negligence claim to be successful, Creatini would have to prove that McHugh owed him a duty of reasonable care and breached that duty, which resulted in damage.

Typically, landowners in Massachusetts do not have a duty to take steps to protect against dangerous or unlawful acts by third parties, according to the Appeals Court decision. However, there is an exception when a special relationship exists between a landowner and a plaintiff.

For example, a landlord could be expected to take steps to protect a tenant from harm by another tenant’s pit bull on the property, the Appeals Court decision explained.

“However, no Massachusetts appellate court has extended such a duty to a passersby injured by a tenant’s dog after the dog leaves the landlord’s property,” the Appeals Court decision said. “We decline to do so here.”

In this case, the Appeals Court found that McHugh and Creatini did not have a special relationship, as they had never even met, and Creatini’s injury occurred on a public street rather than on McHugh’s property.

Because nothing in the summary judgment record indicated that McHugh was aware Mills’ dog was aggressive or prone to attack passersby, the Appeals Court found that in these circumstances, the attack and resulting injuries were not a foreseeable event.

Creatini argued, however, that there should be a rule declaring pit bulls to be dangerous and imposing a duty of reasonable care on all owners of land where pit bulls are kept.

“While we acknowledge that some pit bulls can be aggressive … we see no reason to treat them as ‘dangerous instrumentalities’ like ‘firearms, explosives, poisonous drugs, or high tension electricity,’ which require the landowner’s closest attention and most careful precautions,” the Appeals Court decision stated, adding that “legislative enactments in Massachusetts reflect a strong public policy to prevent damage by uncontrolled dogs.”

These statutes place responsibility for dogs, including pit bulls, on the owners of those dogs, however, rather than on third-party landowners.

With this in mind, the Appeals Court found that while the risk of harm to passersby from a tenant’s dog might be a foreseeable event for a landlord in some circumstances, that was not the case in this situation. The Appeals Court agreed with the Superior Court’s decision and ruled in favor of McHugh.

The case is Victor Creatini vs. Mark McHugh.

Topics Massachusetts

About Elizabeth Blosfield

Elizabeth Blosfield is the East region editor for Insurance Journal. She can be reached at eblosfield@wellsmedia.com. More from Elizabeth Blosfield

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