Massachusetts Appeals Court Holds Police Not Immunized From Liability for Canine Attack

A plaintiff filed suit for negligence under the Massachusetts Tort Claims Act (Act) against the Massachusetts State Police after being attacked by a trained police dog in a parking lot. A state trooper who was an experienced dog handler had been in pursuit of a criminal through that parking lot. The plaintiff sued the police, alleging that the trooper’s conduct in releasing the police dog to capture a criminal in a public space created a foreseeable risk of harm to an innocent bystander. The lower court disagreed and granted summary judgment to the state police, reasoning that the plaintiff’s negligence claim was barred by the immunity provisions of the Act. The plaintiff appealed.In reversing, the appeals court first explained that the Act exempts a public employer from liability for any claim based on the performance of a discretionary duty by a public employee, regardless of whether that discretion is abused. The parties agreed that the state police was a public employer immunized from liability by the discretionary function exemption in the Act.

In deciding whether this exemption applied, the appeals court first analyzed whether the trooper had any discretion regarding what caused the plaintiff’s injuries. It found that the plaintiff could not reasonably contest the state police’s claim that the use of the police dog was not forbidden by a statute or practice. The court noted that it previously held that police dog handlers have “discretion” as to their course of conduct. Moreover, the state police’s general order for dog units gave discretion to its dog handlers.

The court next determined whether the discretion that the trooper had was the kind of discretion for which the Act provided immunity from liability. Specifically, the question was whether his act of releasing the dog to apprehend the suspect in an occupied parking lot involved discretionary activity that is immunized under the Act, as opposed to conduct that involves the “implementation” of government policy, in which case there is no immunity. The appeals court found that the trooper’s act of releasing the dog was conduct that implemented the police’s general policy for police dog use, meaning there was no immunity.

The court distinguished the case from Audette v. Commonwealth, in which the appeals court affirmed the lower court’s grant of summary judgment for a defendant in another police dog attack case. There, a trained state police dog was not leashed during a vehicle search when he attacked the victim. Unlike in this case, that officer did not order an attack or apprehension. Thus, the lower court held and the appeals court agreed that the state was immune from liability for any claim based on the officer’s failure to train or supervise the dog, or his failure to remove the dog from service, pursuant to the discretionary function exemption. The claim, the court found, fell squarely within the two-pronged test for determining whether a plaintiff’s claim is foreclosed by the discretionary function exemption. With respect to the first step in the analysis, the appeals court held the officer, as the dog’s sole handler and keeper, had discretion as to the course of conduct to follow in the dog’s training and use as a police dog. With respect to the second step of the test, the Audette court held that the officer’s decisions regarding the training and continued use of the dog were corresponding decisions reflecting considerations of public policy.

The court concluded that in the present case, unlike in Audette, a police dog handler ordered the dog to capture a suspect in an occupied parking lot. He was ordered to hunt down, bite, and hold an individual, which is exactly what the dog did to the plaintiff. The appeals court therefore concluded that the trooper created the dangerous condition that caused the plaintiff’s injury.

The court vacated the lower court’s judgment and remanded the case for trial.

If you have been hurt by another party’s dog, you may need the assistance of a dog bite lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.

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