Opinion
11-P-349
12-22-2011
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Craig Mulcahy, appeals from a judgment on a jury verdict for the defendant-dog owner, Kathleen M. Hodgdon. Mulcahy asserts that the trial judge erroneously permitted evidence on the dog's prior behavior. We find that any error was harmless and affirm.
The jury answered 'no' to the special verdict question, 'Has the plaintiff proven that the actions of the dog 'Sadie' caused him to sustain personal injuries.'
The record does not allow us to determine with any certainty whether the issue was preserved. Because we find that there was no prejudice to the plaintiff, we do not address the issue further.
Background. The jury could have found these facts. Mulcahy, a United Parcel Post employee, was attempting to deliver a package to Hodgdon's neighbor when Mulcahy encountered Hodgdon's dog. The dog, a boxer, was standing approximately thirty feet away from Mulcahy. The dog was unleashed and appeared 'frightening' to Mulcahy, by which he meant the dog's 'hair was up' and the dog 'looked like [s]he was ready to lunge.' The dog's appearance prompted Mulcahy to turn around and walk back toward his truck. As he walked away, Mulcahy observed the dog running toward him, causing Mulcahy to break into a run. Consequently, Mulcahy slipped and fell, and dislocated his left shoulder. We refer to other facts as necessary in our discussion of the legal issues.
The plaintiff provided only portions of the trial transcript, limiting our review of the record.
Discussion. Mulcahy contends that G. L. c. 140, § 155, colloquially known as the 'dog bite statute,' renders evidence of the dog's previous behavior inadmissable. See Leone v. Falco, 292 Mass. 299, 300-301 (1935) ('[L]iability of [a dog] owner . . . under the statute is not negatived by proof that such owner or keeper was not at fault; that he neither knew, nor had reason to know, that the dog had any extraordinary, dangerous propensity, or that the dog had no such propensity'). While the parties do not contest that G. L. c. 140, § 155, applies in this case, Hodgdon claims that the dog's propensity was relevant to a negligence count also brought by Mulcahy. Although the negligence count was not formally dismissed until after trial, it is clear from the limited trial transcript that the negligence claim was never submitted to the jury. In his instructions to the jury, the trial judge stated, 'The question is . . . not whether the conduct of the owner of the dog was negligent.'
General Laws c. 140, § 155, inserted by St. 1934, c. 320, § 18, states, in relevant part: 'If any dog shall do any damage to either the body or property of any person, the owner . . . shall be liable for such damage.'
The name, dog bite statute, is a misnomer because the statute applies to 'any act of a dog, which occasioned injury to [the plaintiff] or his property' (emphasis supplied). Canavan v. George, 292 Mass. 245, 247 (1935), quoting from Sherman v. Favour, 1 Allen 191, 192 (1861) (finding statute applied when dog ran by plaintiff, hitting plaintiff's leg and causing plaintiff to fall to ground). A dog's passive conduct, however, does not trigger the application of the dog bite statute. Ibid. ('no liability for . . . 'mere presence or passing of a dog, when no act is done or attack made by [the dog]'').
We cannot determine from the limited trial transcription provided as part of the record on appeal whether the judge dismissed the negligence count before the admission in evidence of the dog's prior behavior. If he dismissed the negligence claim before the admission of the evidence, then the admission was error in as much as the only count before the jury was a claim pursuant to G. L. c. 140, § 155. If he dismissed the negligence claim after the admission, then his failure to provide a curative instruction is error. The inability to determine the nature of the error stems from the plaintiff's failure to assemble a proper record. '[I]t is the appellant's responsibility to ensure that the record is adequate for appellate review.' Commonwealth v. Woody, 429 Mass. 95, 97 (1999).
We need not pinpoint when the error occurred, however, because we find that even if an evidentiary or closely-related instructional error occurred, it was harmless. See Mass.R.Civ.P. 61, 365 Mass. 829 (1974). See also Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Engrs., Inc., 45 Mass. App. Ct. 120, 123-124 (1998) ('[W]e determine if there was error, and, if so, whether the error affected the substantial rights of the [appellant]').
At trial, Mulcahy testified that the dog never barked at him and never came closer than fifteen feet to him. Furthermore, Mulcahy explained that after he slipped and fell, the dog disappeared. Based on this, the jury could have reasonably inferred that Mulcahy overreacted to the dog's presence. Since Mulcahy introduced no evidence that the dog approached him closer than fifteen feet at best, the admission of the dog's past pleasant temperament did not prejudice Mulcahy. See generally Murphy v. Metropolitan Natl. Bank, 191 Mass. 159, 163-165 (1906) (appellant failed to carry its burden of proof, therefore any erroneously admitted evidence was harmless).
Mulcahy's second argument that the jury verdict was arbitrary is equally unavailing. A jury verdict will only be set aside if it is 'so greatly against the weight of the evidence as to induce . . . the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.' Kuhlmann v. Hy-Crest Ranches, Inc., 4 Mass. App. Ct. 542, 547 (1976), quoting from Bartley v. Phillips, 317 Mass. 35, 41 (1944). None of these factors apply; from the evidence recited, supra, the jury reasonably could have found lack of causal connection between the dog's conduct and Mulcahy's injuries. See note 5, supra. Thus, the trial judge's denial of Mulcahy's motion for a new trial was not an abuse of discretion. Brunelle v. W.E. Aubuchon Co., 60 Mass. App. Ct. 626, 630 (2004) ('Whether to set aside a verdict because it is against the weight of the evidence is a question addressed to the discretion of the trial judge, whose decision will not be disturbed unless that discretion has been abused').
Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),