Mack Everly Paralegal Certificate Legal Writing Prof. Spada Feb.

9, 2012 Persuasive Memorandum Woodley Hypo Introduction The objective of this memorandum is to advocate the liability of defendant, Ms. Sue Smith to pay for the injuries sustained by plaintiff, Helen Woodley. Helen Woodley and her mother Elizabeth were patrons of the Stone Zoo in Randolph, Massachusetts. Helen was attacked and bitten by a German Shepherd owned by Sue Smith, groundskeeper of the Stone Zoo. Plaintiff is suing the defendant, pursuant to the Massachusetts Dog Bite Statute, G.L. c. 215, to recover damages caused by her German Shepherd. I. Facts On January 1, 2006, eight-year-old Woodley and her mother were visiting the Stone Zoo in Randolph, MA. The two of them decided to visit one last building before leaving the zoo a brick building slightly set apart from the others, but of similar architecture to the rest of the zoo. They walked up the snow-covered path to the door when a dog came out from behind a snow-covered hedge to the left of the front door. The dog was running loose and greeted the Woodley s playfully. They played with and pet the dog and then continued to the front door. Helen scooped up a snowball and threw it at her mother, who ducked at the last second. The snowball hit the dog instead, and although it didn t cause the dog any real pain, the snow startled the dog. The German shepherd ran at Helen and bit her four times on the arm and hand. Helen needed 117 stitches. The building where Helen was attacked was not an exhibit, but the private residence of the groundskeeper Sue Smith. It also contained the zoo s administrative offices. Elizabeth claims there were no signs labeling the building as a private residence or warning of the presence of a dog. II. Issue Under the Dog Bite Statute, is Smith liable for Woodley s injuries? III. Rule The Dog Bite Statute, G.L. c. 215 states: If a dog or other animal, without provocation, attacks or injures any person who is peacefully conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.

IV. Application Precedent set by Pappalardo v. Santoro, 548 N.E.2d 1, 548 Mass. 887 (1990) dictates that the four elements of G.L. c. 215 must be satisfied for a plaintiff to impose liability upon the defendant and recover damages: 1. Injury must be caused by a dog owned or harbored by the defendant. 2. Lack of provocation. 3. Peaceable conduct of the person injured. 4. Presence of the person injured in a place where he has a legal right to be. This memorandum will examine the four elements necessary to fulfill the requirements of the Dog Bite Statute. 1. Ownership Defendant, Smith, admits to ownership of the dog that bit the plaintiff, Woodley. 2. Lack of Provocation The issue with this element is whether or not Woodley provoked the dog by missing her mother with the snowball and accidentally hitting the dog. Provocation includes both intentional and unintentional acts according to Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (1994). This memo will now examine both types of provocation. (i) Intentional Provocation The issue is whether Woodley s snowball, which was intended for her mother, but instead hit the dog, can be considered intentional provocation. The court has seen an excellent example of intentional provocation in Segal v. Chelsea, 619 N.E.2d 555, 319 Mass. 234 (1992). In that case, the defendant, Tom Chelsea, was found to have intentionally provoked the dog that bit him. Tom kicked the dog three times; each kick received a growl in response, until the dog bit him in the face. Tom was aware of the dogs increasing anger with each kick and still proceeded until he was bitten. The court found that Tom s three kicks were intentional provocation and barred him from the protection of the Dog Bite Statute. These facts are not at all similar to the case at hand. Helen s snowball was intended for her mother, not the dog, unlike the kicks of the boys in Segal. Therefore, this case is not and cannot be one of intentional provocation on the part of Helen Woodley. However, there is still the matter of unintentional provocation. (ii)Unintentional Provocation The issue is whether Woodley provoked the dog unintentionally. There is case law concerning unintentional provocation as it relates to the Dog Bite Statute in Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (1994). In that case, two-and-half-year-old Evelyn Rose was thrown during a game of crack-the-whip at a neighbor s house and accidentally fell on the tail of the neighbor s dog, which had been peacefully

chewing on a bone. The dog responded by scratching Evelyn in the face and permanently damaging a tear duct, but not affecting her vision. The court ruled that the girl s fall upon the dog, although unintentional, was still a form of provocation under the Dog Bite Statute and thus forbade imposition of liability upon the defendant. However, the court made an interesting statement regarding the proportionality of viciousness in a dog s response to unintentional provocation. The court explicitly stated, had the dog, in fact, acted viciously in his response to [Rose s] unintentional provocation, [they] would probably rule differently. This case of Helen Woodley s unintentional provocation falls into the court s rule of proportional viciousness. Helen s action of accidentally hitting the dog is directly comparable to accidentally falling on the dog s tail in the case of Rose. Except the dog reacted differently in this case and the viciousness of its response was completely disproportional to the unintentional provocation of Helen s snowball. It is therefore conceivable that the court would rule in favor of the plaintiff and find that there was no unintentional provocation, thus satisfying a necessary element of the Dog Bite Statute. 3. Lawfully on the Premises The issue is whether Helen and her mother were lawfully on the premises at the time of Helen s injury. There is case law concerning the instant statute and the court s interpretation of lawfully on the premises in the past. The issue was first raised in Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (1999), when Mark Bjorstrom, who was selling greeting cards for his high school, was attacked by a bulldog on the fourth floor of the Copley Mall in Boston, MA. Unbeknownst to Bjorstrom, the fourth floor was used as a private residence for the owner of the mall. However, the fact that the fourth floor was not open to the public or that it was used as a residence was not posted on the exterior of the building or on the directory in the lobby. The court found that, because there were no postings, people like Bjorstrom [could be lead] to surmise that the entire building was devoted to business purposes [and would have] no reason to believe that the fourth floor was used for residential purposes or that vicious dogs were kept there. Bjorstrom v. Carey Management Association, 732 N.E.2d 441, 690 Mass. 332 (1999). The facts in the case of Helen Woodley are similar to that of Bjorstrom. Helen s mother maintains that there were no signs informing her that Smith s building was a residence and not another exhibition, nor that there was a dog present. Additionally, it could be said that any reasonable person would assume the same conclusion as the Woodley s due to the similarity in structure of the building compared to the other exhibits. Although there was a sign present in the case of Bjorstrom, the court found that the warning sign was in the wrong location [and] did not give adequate warning of the danger and therefore, Bjorstrom was still considered to be lawfully on the premises even though there was a sign warning of the presence of a dog. It can be assumed, in light of the facts of the

Woodley case the similar architecture and the absence of a warning sign that Helen and her mother were indeed lawfully on the premises. There is still one more case that builds support for the fact that Helen and her mother were lawfully on the premises. In Dan v. Gilbert, 818 N.E.2d 325, 983 Mass. 332 (2004), Penny Dan was bitten by Josh Gilbert s dog on his property while she was selling Girl Scout cookies door-to-door. The facts of the trial court maintained that Dan walked up the provided path from the sidewalk to Gilbert s door and was attacked approximately five feet from the door. The court held that the defendant s provision of a walkway from the public sidewalk/street extends a license to anyone who wishes to use the walkway during ordinary hours of the day. The presence of and use of the path in the Woodley case, despite the fact that it was covered with snow, would logically bring the court to the same conclusion that Helen and Elizabeth were exercising their license to use that walkway during ordinary hours of the day and were, therefore, lawfully on the premises at the time of Helen s injury. 4. Peaceable Conduct There should be no dispute as to whether or not the conduct of Helen and her mother was peaceable. They testify that the dog came up to them friendly and playfully and allowed them to scratch, pet, and play with him for several minutes before they decided to move on. In Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (2004), the court found that Evelyn s conduct was peaceable, despite her accidental unintentional provocation of the dog she fell on, since she was playing a children s game without any intent or focus on the dog in that case. The facts at hand in the Woodley case are similar in that Helen was, in effect, playing a children s game with a snowball by lobbing it at her mother. Perhaps the dog was startled and did not interpret Helen s actions as peaceable, but since the dog cannot be questioned, peaceable conduct should be defined according to what a reasonable person would believe to be peaceable conduct. V. Conclusion The analysis above demonstrates that each of the four elements of the Dog Bite Statute has been fulfilled. 1. Ownership Smith admits ownership of the dog in question. This element is satisfied. 2. Lack of provocation Despite the precedent set in Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (2004) over unintentional provocation, the court acknowledged the issue of proportionality of unintentional provocation to the viciousness of the dog s response and outrightly stated they would rule differently were the acts disproportionate. The evidence in this case strongly supports the alternate conclusion alluded to by the court, which could satisfy this element.

3. Lawfully on the Premises The facts of the case and application of case law precedent in the above analysis demonstrate that this element is element is satisfied since Helen and her mother had no reason to believe the building was not another zoo exhibit and there was no sign warning of the presence of a dog. 4. Peaceable Conduct Comparison of this case to the case of Rose v. Leopold, 718 N.E.2d 853, 415 Mass. 576 (2004) in the above application demonstrate that the conduct of Helen Woodley should be considered peaceable. This element is satisfied. The satisfaction of the Dog Bite Statute s four necessary elements dictates that liability for Woodley s injuries should be imposed upon Sue Smith. Helen Woodley should be able to recover damages.