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Durbin v. Board of Selectmen of Kingston9/15/2004
Plymouth.
December 16, 2003.
Practice, Civil, Action in nature of certiorari, Relief from judgment. Municipal Corporations, Selectmen, Nuisance. Dog. Nuisance.
Civil action commenced in the Superior Court Department on December 23, 1999.
The case was heard by Geraldine S. Hines, J., on a motion for judgment on the pleadings.
On April 10, 1999, two dogs belonging to the Durbins, then residents of Kingston, attacked a small child. Acting in response to a complaint from the child's father, pursuant to G. L. c. 140, § 157, the Kingston board of selectmen determined that the two dogs were "a nuisance by reason of vicious disposition," and ordered the dogs to be destroyed. The proceedings arising from that complaint have worked their way from the Kingston board of selectmen to the District Court clerk-magistrate to a judge of the District Court to the Superior Court, with each tribunal determining the propriety of the order to destroy the dogs.
The Durbins here argue that the Superior Court judge, who heard the matter on their petition for certiorari relief pursuant to G. L. c. 249, § 4, committed numerous errors, which distill into the following contentions: (1) the judge erred in denying their motion for leave to present additional evidence regarding developments subsequent to the District Court trial; (2) the judge erred in failing to address certain procedural defects that occurred in the course of the Kingston board of selectmen's investigation; and (3) the judge erred in her determination that the District Court committed no error of law in issuing the order to destroy the dogs. Our review of the record reveals, however, no basis for reversing the Superior Court judge's dismissal of the Durbins' petition.
The Incident
The following facts were relied upon by the judge and are supported by the District Court record. Sandra and Robert Durbin resided at 19 Copper Beach Drive in Kingston in April, 1999. On April 10, 1999, Matthew Erbe, their neighbor, brought his two year old son, Daniel, and eleven year old Krystina Paquette, Sandra Durbin's cousin, to the Durbins' back yard to play. Mr. Erbe left the children alone in the yard and returned to his home. At the time, the Durbins' dogs were in the house. Shortly thereafter, Krystina and Daniel opened the unlocked back door of the Durbins' home in order to use the bathroom. As soon as they had opened the door, Bear (a shepherd-rottweiler mix) and Sampson (a rottweiler) -- each weighing about one hundred pounds -- rushed out and attacked Daniel. The attack resulted in multiple puncture wounds and lacerations to the child's face, leaving him covered in blood and with serious injuries. Krystina, the only eyewitness to the attack, said, just after it occurred, that "the dogs attacked Daniel" and "it was Bear and Sampson who did the attack."
The Procedural Aftermath
As a result of the attack, Mr. Erbe filed a complaint with the Kingston board of selectmen (board), and an investigatory hearing was held, pursuant to G. L. c. 140, § 157, on May 25, 1999. The board concluded that the two dogs "did in fact savagely attack and injure Daniel," that the attack on Daniel "was unprovoked, and that the dogs should not be relocated as it is likely they continue to be a menace to public safety" as a result of their "vicious disposition." The board ordered that both dogs be "humanely euthanized."
The Durbins petitioned the Plymouth District Court for review of the board's order. On June 28, 1999, a clerk-magistrate affirmed the board's decision. The Durbins thereupon requested a de novo hearing on their petition by a District Court judge. D
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