Legal View: Is pet sitter barred from pursuing dog bite claim?

Pat Murphy, The Daily Record Newswire

Is a pet sitter barred from pursuing a statutory dog bite claim because she is considered a “keeper” of the animal under state law? That’s the question one state supreme court had to decide last week.
The case involved a part pit bull named Beans. In 2005, Beans was rescued by Robert and Ann Marquis of Garland, Maine. The Marquises swear that Beans is a sweetheart, interacting well with people and other dogs.

The Marquises admit that Beans seemed “very focused” on the family cats, but nobody is going to hold that against him.

The plaintiff in the case, Alisa Morgan, is an experienced dog owner herself and a long-time friend of the Marquises. In 2008, both families had sons who were undergoing basic training in the military. Morgan proposed trading pet sitting services so they could each travel to their sons’ graduation ceremonies. The Marquises agreed.

On Oct. 15, 2008, the Marquises left town to go see their son’s graduation. At around 7:00 p.m., Morgan went to the Marquises’ home to check on Beans.

According to Morgan, she found Beans sitting quietly in the kitchen. Morgan claims that, when she reached down to pet Beans, the dog lurched up and bit her in the face. The Bangor Daily News reports that Morgan suffered multiple lacerations on her left face, nose, right cheek and upper neck in the attack. The disfiguring injuries required surgery.

Morgan sued the Marquises, seeking to recover under the couples’ homeowners’ insurance policy. She couldn’t recover under a theory of strict liability because Maine law does not recognize that pit bulls are per se abnormally dangerous and there was no evidence that the Marquises knew that Beans was dangerous.

That left common law and statutory claims for negligence. A Penobscot County Superior Court judge granted the Marquises summary judgment on these claims, too, so it looked as though Morgan was out of luck.

Thursday, the Maine Supreme Judicial Court rode to the rescue, reviving Morgan’s negligence claims. Regarding her common law negligence claim, the court found that a jury issue existed as to whether Marquises should have known that Beans was dangerous.

The more interesting issue, however, had to do with Morgan’s statutory negligence claim. Title 7 Maine Revised Statutes §3961(1) provides:

When an animal damages a person or that person’s property due to negligence of the animal’s owner or keeper, the owner or keeper of that animal is liable in a civil action to the person injured for the amount of damage done if the damage was not occasioned through the fault of the person injured.

The Marquises had convinced the trial judge that, given her status as a pet sitter, Morgan was Bean’s “keeper.” A “keeper” is defined by state law as “a person in possession or control of a dog or other animal.”

According to the Marquises’ theory of defense, because Morgan was the dog’s “keeper” at the time she was bitten, and §3961(1) only allows recovery by injured third parties, not the dog’s “owner or keeper,” Morgan was barred from recovery under the statute.

The Maine high court agreed that the keeper of a dog may not recover damages under §3961(1).

“To accept Morgan’s argument, we would be required to conclude that the Legislature not only intended to allow a dog’s keeper to recover from its owner, but also to allow, because he is likewise ‘a person,’ the owner of a dog to recover statutory damages from its keeper, or even from another co-owner, after being bitten by his own dog – a nonsensical result,” the court explained.

However, this did not mean that Morgan’s statutory negligence claim was finished. This was because the court proceeded to rule that Morgan was entitled to have a jury decide whether she was actually a keeper of Beans:

In this case, the determination of Morgan’s status is a question of fact because a rational jury could determine that she had “possession or control” of Beans once she entered the Marquises’ curtilage to care for him; or not until she entered the house; or not until she turned on the light, located the dog and reached to pet him; or not until she did those things and then something more; or the jury could find that Morgan never had possession or control of the dog. Because this record presents several possibilities along a timeline of events that a fact-finder must choose between as the moment that Morgan had possession or control of Beans and thus assumed the status of his keeper, the trial court could not make that determination as a matter of law.