Lorrain v. Branscombe CV-11-145-JL 1/30/12
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Lisa Lorrain
v. Civil N o . 11-cv-145-JL
Opinion N o . 2012 DNH 024
John Branscombe
OPINION & ORDER
This case involves a boy and his dog (actually, the
defendant’s adult son and his d o g ) . Plaintiff Lisa Lorrain,
crashed her motorcycle into a telephone pole while trying,
unsuccessfully, to avoid hitting a dog that had darted into the
road in front of her. The dog was owned not by defendant John
Branscombe, but by his adult son Geoff. Geoff lived with the dog
on property owned by John’s business, where Geoff also worked
(and where he brought the dog during working hours).
Lorrain’s complaint asserts a single claim against the elder
Branscombe for strict liability under N.H. Rev. Stat. § 466:19,
the“dog bite statute,” which provides that a "person to whom
. . . damage may be occasioned by a dog not owned or kept by such
person shall be entitled to recover damages from the person who
owns, keeps, or possesses the dog." This court has diversity
jurisdiction under 28 U.S.C. § 1332(a)(1) because Lorrain is a
citizen of Maine, Branscombe is a citizen of New Hampshire, and
the amount in controversy is greater than $75,000.
Branscombe has moved for summary judgment, see Fed. R. Civ. P.
5 6 , arguing that the dog bite statute does not apply because (1)
Lorrain’s accident was not caused by any “vicious or mischievous”
act by the dog, which is required under the New Hampshire Supreme
Court’s construction of the “dog bite” statute, and (2)
Branscombe was not “the person who own[ed], ke[pt], or
possesse[d] the dog” within the meaning of the statute. After
hearing oral argument, the court grants the motion. Both of
Branscombe’s arguments are correct, and each independently
requires that judgment enter in his favor.
First, this case is controlled by Noyes v . Labreque, 106
N.H. 357 (1965), in which the New Hampshire Supreme Court held
that the plaintiffs could not recover under the dog bite statute
for injuries suffered when the defendants’ dog ran out into the
street in front of their motorcycle because running out into the
street was not a “vicious or mischievous act.” Second, even if
Noyes could be distinguished, other case law from the New
Hampshire Supreme Court makes clear that Branscombe, although he
may have permitted the dog to live on his property and visit his
business, can not be held liable under the statute for the dog’s
actions as a matter of law.
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I. Applicable legal standard
Summary judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if it could reasonably be
resolved in either party’s favor at trial. See Estrada v . Rhode
Island, 594 F.3d 5 6 , 62 (1st Cir. 2010) (citing Meuser v . Fed.
Express Corp.,
564 F.3d 5 0 7 , 515 (1st Cir. 2009)). A fact is
“material” if it could sway the outcome under applicable law.
Id. (citing Vineberg v . Bissonnette,
548 F.3d 5 0 , 56 (1st Cir.
2008)). In analyzing a summary judgment motion, the court “views
all facts and draws all reasonable inferences in the light most
favorable to the non-moving party.”
Id. But the court need not
credit “conclusory allegations, improbable inferences, or
unsupported speculation.” Meuser, 564 F.3d at 515 (quotation
omitted). The following factual background is set forth
accordingly.
II. Background
The dog, a chocolate-brown Labrador retriever named Brady,
belonged to Geoff Branscombe, the adult son of defendant John
Branscombe. The elder Branscombe played no role in his son’s
decision to acquire Brady, and did not learn that Geoff had
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gotten the dog until after the fact. John neither fed, walked,
nor trained Brady. He did not take Brady to the veterinarian;
the dog was not registered in his name and never lived or stayed
at his home. He never provided Geoff with any direction or
instruction as to how to restrain or control Brady. He did,
however, allow both Geoff and Brady to live, rent-free, in a
residence owned by Colony Used Auto Parts, a business in which he
is one of three equal partners.
That residence, located in the City of Rochester, New
Hampshire, was directly adjacent to Colony, where Geoff worked.
Geoff, with his father’s approval, would frequently bring the dog
into work with him during business hours. Brady played no part
in the operation of the business, and came to work solely as
Geoff’s personal pet. There were water dishes and dog treats in
the office for Brady, but while there, Brady usually remained
tied to a chair behind the sales counter.1
1
Lorrain claims that this was “because defendant John
Branscombe knew that the dog was active and he could be held
liable for any injuries caused by the dog.” This proposition,
however, is not supported by the record evidence she cites, and
in fact, John testified at his deposition that he played no part
in the decision to tie Brady to the chair. See Branscombe Depo.
(document n o . 16-5) at 54:1-13. In addition, both Branscombes
have submitted affidavits attesting that John never told Geoff
how to restrain Brady while the dog was at the business premises.
In any event, whether John believed he could be held liable
for injuries the dog caused at his place of business, or premises
the business owned, is wholly irrelevant to whether he can be
held liable for injuries the dog caused elsewhere.
4
On June 1 3 , 2009, Geoff went to visit a friend and fellow
Colony employee at the friend’s residence on Pine River Pond Road
in Wakefield, New Hampshire, and took Brady with him. At about
10:00 p.m. that night, plaintiff Lisa Lorrain was traveling east
on Pine River Pond Road within the posted speed limit when Brady
suddenly darted into the road in front of her motorcycle.
Lorrain attempted to swerve to the right to avoid the dog, but
nonetheless clipped his hindquarters. She then lost control of
the motorcycle and collided with a telephone pole. Lorrain
sustained extensive and permanent injuries, for which she now
seeks to hold John Branscombe liable. Brady survived the
accident as well.
III. Analysis
As already noted, the sole claim Lorrain pleads against John
Branscombe in her complaint is strict liability under New
Hampshire’s “dog bite statute,” N.H. Rev. Stat. Ann. § 466:19.
In full, the statute provides:
Any person to whom or to whose property, including
sheep, lambs, fowl, or other domestic creatures, damage
may be occasioned by a dog not owned or kept by such
person shall be entitled to recover damages from the
person who owns, keeps, or possesses the dog, unless
the damage was occasioned to a person who was engaged
in the commission of a trespass or other tort. A
parent or guardian shall be liable under this section
if the owner or keeper of the dog is a minor.
5
Id. Although this language does not assign any significance
to the demeanor of the dog, the New Hampshire Supreme Court has
put a limiting construction on the statute, holding that it
permits recovery only for a dog’s “vicious or mischievous
conduct.” Bohan v . Ritzo,
141 N.H. 2 1 0 , 214 (1996). Branscombe
argues that because a dog’s running into the road is neither a
vicious nor a mischievous act, § 466:19 does not apply here.
Lorrain disagrees, arguing that “the act of bolting into a
roadway by a dog is per se mischievous, in that it is both
reckless and negligent.” That argument is at odds, though, with
the New Hampshire Supreme Court’s opinion in Noyes v . Labrecque,
106 N.H. 357 (1965). There, as here, the plaintiffs “were
injured and the motorcycle on which they were riding damaged when
the defendants’ dog ran out into the street in front of them.”
Id. at 358. Like Lorrain, the plaintiffs alleged no negligence,
but sought instead to recover under § 466:19. Id. In affirming
the district court’s dismissal of the action, the New Hampshire
Supreme Court observed that the statute “does not confer a right
of action on all persons indiscriminately,” but “is to be given a
reasonable interpretation,” under which it did not “cover a
situation where no vicious or mischievous acts by the dog were
alleged.” Id. at 358-59.
6
Noyes, then, would seem to stand for the proposition that
the mere “act of bolting into a roadway by a dog” is not “vicious
or mischievous.” Lorrain seeks to cast doubt on Noyes’ validity,
noting that it was decided a half-century ago and that the
reported opinion contains neither a thorough recitation of the
facts nor an explanation of “how the Court came to its
conclusion.” But, under the facts and circumstances of this
action, neither the vintage of the case nor the absence of
persuasive analysis permit this court to ignore its obligation
“to take its law in diversity cases from the state’s highest
court once that court has spoken on point.” EMC Corp. v . Alturi,
655 F.3d 7 5 , 78 (1st Cir. 2011). And while it is true that the
opinion in Noyes is not rich with factual detail by any means, it
does state that the dog in that case ran out into the road in
front of the plaintiffs’ motorcycle and that, on this fact alone,
the dog bite statute does not apply--which is all that matters
here.
The proposition that a dog running out into the road is not,
in itself, enough to trigger strict liability under § 466:19 is
lent further support by the New Hampshire Supreme Court’s
decision in a much more recent case, Bohan v . Ritzo, 141 N.H. 210
(1996). The plaintiff in Bohan sought recovery for injuries
suffered when the defendants’ dog ran out in the road toward his
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bicycle. Id. at 211-12. In rejecting the defendants’ argument
that § 466:19 did not apply because there was no physical contact
between the dog and the plaintiff or his bicycle, the court noted
that there was nonetheless specific evidence of “mischievous
actions” by the dog, to wit, “that the defendants’ dog
mischievously ran toward the plaintiff’s leg as if to bite him.”
Id. at 213. Notably, the court did not suggest that the act of
running out into the road itself was vicious or mischievous, or
otherwise cast doubt on Noyes. Bohan, then, is fully consistent
with the holding of Noyes that to hold a dog owner liable under
§ 466:19 for injuries caused by his dog’s running into the road,
a plaintiff must demonstrate some additional element that makes
the dog’s conduct vicious or mischievous.
Lorrain points to two facts that she says fit that
description here: first, that--in contrast to both Noyes and
Bohan--her motorcycle actually made physical contact with Brady
when it clipped his hindquarters, and, second, that Brady is dark
in color and ran out into the road after sunset. Neither of
these facts bring Brady’s conduct within the ambit of the statute
as interpreted by the New Hampshire Supreme Court. While Lorrain
is correct that Bohan established that actual physical contact is
not necessary to make out a violation of § 466:19, see 141 N.H.
at 2 1 4 , it did not establish the converse, i.e., that physical
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contact alone is sufficient to make out a violation. Lorrain
does not claim that the contact resulted from anything that Brady
did apart from simply running into the road, which again does not
itself amount to “vicious or mischievous” conduct, as least as
the New Hampshire Supreme Court has applied that phrase.
The same is true of Brady’s color and the time of day at
which the accident occurred: neither fundamentally altered the
nature of the dog’s actions so as to make them mischievous (as
did the dog’s attempting to bite the plaintiff in Bohan).
Because Lorrain has not presented any evidence creating a genuine
dispute of material fact as to whether Brady’s conduct was
vicious or mischievous, Branscombe is entitled to summary
judgment.
Branscombe is also entitled to summary judgment for the
independent reason that Lorrain has not presented any evidence
creating a genuine dispute of material fact as to whether he is
Brady’s owner, keeper, or possessor under the statute. As noted,
§ 466:19 permits a person injured by a dog’s vicious or
mischievous act “to recover damages from the person who owns,
keeps, or possesses the dog.” Lorrain does not argue that
Branscombe owned or possessed Brady, but that he was the dog’s
keeper. Only three reported opinions have addressed what it
means to “keep” a dog within the meaning of the New Hampshire dog
9
bite statute, the most recent of which was decided in 1938. See
Raymond v . Bujold, 89 N.H. 380 (1938); Gagnon v . Frank,
83 N.H.
122 (1927); Cummings v . Riley,
52 N.H. 368 (1872). 2 Those cases
nonetheless make clear that, under the undisputed facts of this
case, John Branscombe was not Brady’s keeper as a matter of law.
As the New Hampshire Supreme Court has explained, the word
“keep” as used in the statute
implies more than the mere harboring of the dog for a
limited purpose or time. It implies rather the
exercise of a substantial number of the incidents of
ownership by one who, though not the owner, assumes to
act in his stead. One who permits the casual presence
of a dog upon his premises cannot fairly be said to be
its keeper; nor does he become such when he temporarily
feeds or shelters i t . One becomes the keeper of a dog
only when h e , either with or without the owner’s
permission, undertakes to manage, control, or care for
it as dog owners in general are accustomed to d o .
2
Richards v . Leppard, 118 N.H. 666 (1978); Glidden v .
Szybiak,
95 N.H. 318 (1949); and Janus v . Akstin,
91 N.H. 373
(1941), upon which Branscombe relies, do not address what it
means to “keep” a dog, but what it means to “possess” a dog. As
Lorrain conceded at oral argument, she has not argued that
Branscombe “possessed” Brady; thus, the court need not consider
those cases here.
10
Raymond, 89 N.H. at 382. 3 Lorrain has adduced no evidence that
John Branscombe ever “exercised a substantial number of the
incidents of ownership” of or “undertook to manage, control, or
care for” Brady. In fact, all the evidence is to the contrary.
He did not feed Brady. He did not walk Brady. He did not train
Brady. He did not take Brady to the veterinarian. He did not
register Brady in his name. He did not allow Brady to stay at
his home. He did not tell his son how to control Brady. Though
Lorrain derisively dismisses these as “snapshot” facts, they are
exactly the type of facts that could permit a reasonable finder
of fact to conclude that Branscombe held himself out as Brady’s
owner or cared for Brady in the way “dog owners in general are
accustomed to do.” Raymond,
89 N.H. at 382. Without such facts,
3
Lorrain claims, incorrectly, that in Cummings, the New
Hampshire Supreme Court defined a “keeper” as “one who, having
the possession and control of a house or premises, suffers and
permits a dog to be kept on the premises in the way such domestic
animals are usually kept,--as a member of the family, so to
speak.” While Cummings contains this language, it appears only
in quoting the instruction given the jury by trial court, and the
Supreme Court specifically cautioned that it did “not understand
the language of the [trial] court as furnishing or intending to
furnish a legal definition of the term ‘keeper of a dog’ . . . .”
52 N.H. at 370. Even if Cummings had adopted this definition of
the term, though, this court would be constrained to apply the
more recent definition in Raymond. See Bartlett v . Mut. Pharm.
Co., Inc.,
759 F. Supp. 2d 1 7 1 , 193 (D.N.H. 2010) (“As a federal
court exercising diversity jurisdiction over a state-law action,
this court must apply the most recent statement of state law by
the state’s highest court.”).
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Lorrain cannot show that John Branscombe was the dog’s “keeper”
under § 466:19.
Nor do the facts emphasized by Lorrain--that Branscombe
allowed his son to live, rent-free, at a residence that his
business owned, and to keep Brady there; that he allowed his son
to bring Brady to work with him during business hours; and that
water and dog treats were provided for Brady there4--create a
genuine dispute of material fact on this point. At best, those
facts might establish that Branscombe’s relationship to Brady was
akin to that of a landlord who permits his tenant’s dog to live
on the premises, or an employer who permits his employee to bring
his dog to work. They do not suggest that Branscombe “assume[d]
to act in [Brady’s owner’s] stead,” merely that he “harbor[ed]
the dog for a limited purpose” and “permit[ted] the casual
presence of a dog upon his premises,” which, as just discussed,
does not make him the dog’s keeper. Raymond, 89 N.H. at 382; c f .
also Cummings,
52 N.H. at 369 (rejecting proposition that any
“person who keeps boarders for pay, and suffers or permits such
boarders to have or keep on his premises a dog” could be held
4
With respect to the last of these three facts, Lorrain
takes some liberty with the record evidence, asserting that
Branscombe himself “provide[d] water dishes and dog cookies for
the dog at Colony Used Auto Parts.” As Branscombe notes in his
reply memorandum, there is no evidence as to who provided the
water and treats for Brady.
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liable as a “keeper” because a “keeper” is “not one who harbors a
dog and permits it to remain temporarily upon his premises in
[that] manner”). Because Lorrain has failed to adduce facts from
which a rational jury could find differently, Branscombe is
entitled to summary judgment on that basis as well.
IV. Conclusion
For the reasons set forth above, Branscombe’s motion for
summary judgment5 is GRANTED. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: January 30, 2012
cc: John P. Flynn, I I I , Esq.
Paul A . Maggiotto, Esq.
Robert C . Dewhirst, Esq.
5 Document n o . 1 6 .
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