The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
This case involves a boy and his dog (actually, the defendant's adult son and his dog). 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. 56, 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.
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 56, 62 (1st Cir. 2010) (citing Meuser v. Fed. Express Corp., 564 F.3d 507, 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 50, 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.
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 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.*fn1
On June 13, 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. ...