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Bystander Bitten by Police Dog Had Right to Seek Compensation Under Massachusetts Tort Claims Act

police dogPolice dogs are used by many law enforcement agencies across the country to assist officers as they search for drugs, locate missing individuals, and, sometimes, help apprehend suspects who attempt to flee the scene after being arrested.

Just as human officers can occasionally make mistakes, so, too, can K-9 officers. When this happens, should an innocent person who is injured by the dog’s error have the right to sue the government for damages?

Facts of the Case

In a recent case, the plaintiff was a man who was bitten by a police dog in 2011. The dog’s handler had been in pursuit of the suspect for quite some time, having engaged in a high-speed motor vehicle chase from Boston to West Bridgewater. After the suspect crashed his vehicle and began running through a public parking lot, the handler (a state trooper) released the dog to apprehend the suspect. Unfortunately, both the handler and the dog lost sight of the actual suspect, and the dog mistakenly attacked the plaintiff instead.

The plaintiff filed suit against the Massachusetts State Police (the handler’s employer), seeking to recover compensation for his injuries under the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258. According to the plaintiff, the officer’s release of the animal in a public space created a foreseeable and substantial risk of harm to an innocent bystander. The trial court granted summary judgment to the defendant based on the ground of sovereign immunity, specifically §§ 10(b) and (j) of the Act. The plaintiff appealed.

Decision of the Massachusetts Appeals Court

The appeals court reversed the trial court’s grant of summary judgment to the defendant. The court first noted that, in this particular case, the dog and the handler worked together as a team, and the dog did exactly what the handler commanded him to do. The court then reiterated prior case law to the effect that State Police canine handlers have at least some discretion with regard to deciding appropriate tactical measures that should be taken with regard to the use of a K-9 officer.

Under Massachusetts law, the government is protected from liability in cases in which a discretionary activity was of the “planning or policy-making type” but not when the conduct at issue involves the “implementation” of government policy. Here, the court found that – at least at the summary judgment stage – it could not be said that the handler’s commanding the dog to apprehend a criminal suspect involved the “planning or policy-making type” of discretion.

Furthermore, the defendant was not entitled to governmental immunity on the ground that the officer’s conduct was not the “original cause” of creating the harmful condition that resulted in the plaintiff’s injuries. When the trooper made the decision to release the police dog in a “moderate to heavily occupied parking lot” to attack the suspect, he created the harmful condition that led to the plaintiff’s injury.

Get Advice from an Experienced Cape Cod Injury Lawyer

Dog bites can result in serious injuries, and those who are bitten or attacked due to the negligence of a property owner or, as in this case, an allegedly careless professional handler, have the right to seek fair compensation. At the Law Offices of John C. Manoog, III, our experienced Cape Cod dog bite attorneys can help you determine whether you have a viable personal injury claim. For a free consultation, call us at 888-262-6664 and schedule an appointment in either our Hyannis or Plymouth offices.

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