Glidden v. Szybiak

New Hampshire Supreme Court · Torts

TortsDog-bite liabilityTrespass to chattelsPossessiondog liability statutetrespasstrespass to chattelsharm to chattel

Facts

The plaintiff Elaine was injured by a dog named Toby and sued under a statute imposing liability on a person who owns, keeps, or has possession of a dog, unless the injured person was committing a trespass or other tort. The defendants argued that Elaine was engaged in a trespass at the time of her injury. No claim was made at trial that Elaine's conduct injured the dog in any way. The uncontradicted evidence showed that Toby belonged to Jane, that Jane was told she would be fully responsible for and take care of him, that Jane and then her mother cared for the dog, and that Louis had nothing whatever to do with the dog's care.

Issue

Was Elaine barred from recovery under the dog-liability statute because she was committing a trespass to the dog at the time of her injury? Separately, was Louis in possession of the dog within the meaning of the statute so that liability could be imposed on him even though he was not the owner?

Rule

A person commits trespass to a chattel only when, without consent or privilege, she intentionally uses or intermeddles with another's chattel and the chattel is impaired in condition, quality, or value, or the possessor is deprived of its use for a substantial time, or bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest. Under the dog-liability statute, possession implies the exercise of care, custody, or control of the dog by one who, though not the owner, assumes to act in the owner's stead.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, 12-year-old Nora Lin reached through an open gate and briefly patted a neighbor’s dog, Jasper, without permission. Jasper was not hurt or restrained, but immediately bit Nora’s hand. Nora sues Jasper’s owner under a statute imposing liability on one who owns, keeps, or has possession of a dog unless the injury occurred while the plaintiff was committing a trespass or other tort.

Is Nora most likely barred from recovery because she was trespassing to the dog when bitten?

Explanation. The majority held that the statutory bar applies only if the plaintiff was committing a trespass or other tort, and that trespass to chattels requires intentional, unprivileged intermeddling plus one of the Restatement conditions: impairment of the chattel, deprivation of use for a substantial time, or specified resulting harm. A brief, harmless patting of the dog does not satisfy that standard, so Nora is not barred. (Derived from Glidden v. Szybiak (n.d.).)