Audette v. Commonwealth6/13/2005
Norfolk.
June 8, 2004.
Present: Armstrong, C.J., Gelinas, & Berry, JJ.
Governmental Immunity. Public Employment, Police. Dog. Strict Liability. Negligence, Foreseeability of harm.
Civil action commenced in the Superior Court Department on October 10, 2001.
The case was heard by Maria I. Lopez, J., on a motion for summary judgment.
A judge in the Superior Court granted the Commonwealth's motion for summary judgment on Robert Audette's claim seeking damages for personal injuries sustained when Audette was bitten, on July 27, 1999, by Rocky, a police-trained dog in the care of State Trooper John Tasker. The Commonwealth contends, and the judge agreed, that Audette's claim was barred by G. L. c. 258, §§ 10(b) and 10(j). In her ruling, the judge did not reach the Commonwealth's further argument that the claim was barred by common law principles. We affirm the grant of summary judgment, but for reasons different from those cited by the judge.
"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Judson v. Essex Agric. & Tech. Inst., 418 Mass. 159, 162 (1994); Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 n.2 (2000). " e resolve any conflicts in the summary judgment materials, and we make all logically permissible inferences," in the nonmoving party's favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991).
In affirming summary judgment, we may rely on grounds different from those relied upon by the judge. Vaughan v. Eastern Edison Co., 48 Mass. App. Ct. 225, 226 (1999), citing Hawthorne's, Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 210 n.6 (1993). Here, the judge concluded that Audette's claim was barred by G. L. c. 258, §§ 10(b) and 10(j). We disagree with regard to § 10(j), but on review of all of the summary judgment materials, we conclude that, G. L. c. 140, § 155, providing strict liability for dog bites, is inapplicable, and that under the common law theory of liability, as there was no evidence that the dog's vicious propensities, if any, were known, Audette may not recover, and summary judgment must be granted.
The summary judgment materials before us establish the following undisputed facts, which we view in the light most favorable to Audette. Audette was a police officer with the Randolph police department. On July 27, 1999, he was present at the Randolph police station and participated in the search of a motor vehicle suspected of containing illegal narcotics. The search revealed some narcotics, and the Randolph police sought the assistance of Tasker and Rocky, a drug-sniffing dog, to conduct a more thorough search.
Arriving at the police station parking lot, Tasker took Rocky from the cruiser, and allowed the dog to run loose in the parking area where the vehicle to be searched was located. Audette and a Randolph police detective inquired of Tasker whether it was safe to allow Rocky to run loose. Tasker responded that Rocky performed for audiences of children, and that the dog would be fine.
Tasker then began his search by walking Rocky along the vehicle's driver's side. Rocky remained unleashed. Audette was near the front of the vehicle. After sniffing and walking along the driver's side, Rocky suddenly approached Audette at a gallop, with mouth open and teeth showing. On reaching Audette, Rocky jumped
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