Lieberman v. Powers

873 N.E.2d 803, 70 Mass. App. Ct. 238
CourtMassachusetts Appeals Court
DecidedSeptember 26, 2007
DocketNo. 05-P-1296
StatusPublished
Cited by8 cases

This text of 873 N.E.2d 803 (Lieberman v. Powers) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lieberman v. Powers, 873 N.E.2d 803, 70 Mass. App. Ct. 238 (Mass. Ct. App. 2007).

Opinion

Vuono, J.

Noah Lieberman (Noah) sustained injuries when he was scratched and bitten by a cat while visiting a “cat lounge”3 at the Sheldon branch animal shelter (the shelter), which was operated by the Animal Rescue League of Boston (ARL). Noah [239]*239brought this action, through his father, against Edward Powers, the director of operations of the ARE, and Laura Caruso, manager of the shelter, alleging that his injuries resulted from the defendants’ negligent design and maintenance of the cat lounge. Powers and Caruso filed a motion for summary judgment arguing that they were not liable for Noah’s injuries because they did not know or have reason to know that the cat would attack. A Superior Court judge granted summary judgment in favor of Powers and Caruso, concluding that they were not liable as a matter of law because the evidence was insufficient to support a finding of causation. We reverse the judgment. .

1. The facts. We take the facts from the materials submitted on summary judgment in the light most favorable to the plaintiffs. See Foster v. Group Health Inc., 444 Mass. 668, 672 (2005). On February 5, 2000, five year old Noah went to the shelter with his parents to look for a cat to adopt. Neither Powers nor Caruso was at the shelter when Noah visited, but a staff member allowed Noah and his mother to enter the cat lounge. Almost immediately after they entered the room, a cat leaped off a shelf onto Noah’s head. Noah’s mother acted quickly and removed the cat. Noah began to bleed profusely and was taken to the hospital by ambulance. Noah suffered scalp and facial wounds that required plastic surgery and a rabies vaccine. The cat was euthanized that day.

The shelter’s cat lounge was created and promoted by Caruso, who received permission from Powers to open the room. Caruso’s goal was to increase adoptions of older cats. The room was small, measuring nine feet, six inches by five feet, four inches, or approximately fifty square feet, and had formerly served as a staff lounge. The room contained lockers, two plastic chairs, and a plastic sofa, as well as one to three scratching posts, one litter box, and one feeding bowl. There were two perches “on a gray device,” a kennel, and one piece of cat furniture. The laundry was located behind the cat lounge, so that staff were required to pass through the lounge going to and from the laundry. Although Caruso had visited other shelters that had similar cat lounges, she did not confer with other organizations or shelters, or obtain guidelines from them in connection with converting the staff lounge into a cat lounge.

[240]*240Caruso allowed five to seven cats in the lounge at a time, but there was no limit on the number of people who could be in the lounge visiting with the cats. The lounge was not monitored by staff or volunteers when visitors were present. The cats roamed freely in the cat lounge, but were returned to their cages at night, where they were also fed. Prior to being allowed in the lounge with members of the public, a cat was required to have an acclimation period. During that period, other cats were in the lounge, but staff were not present to monitor them. The acclimation period could be as short as three hours.

The cat involved here had been brought to the shelter on January 10, 2000, by Jane Janess, who reported that she had rescued the cat from a tree. The cat did not attempt to bite or scratch during the rescue, nor did he hiss or growl. He did not show any signs of aggression nor give any indication that he was anything but “a gentle, docile animal.” Janess described the cat as “a sweetheart.” The cat, like all other animals brought to the shelter, was screened by the staff to determine age, health, and temperament. During the screening process, the cat was vaccinated and neutered, and his nails were trimmed. Aware that some cats may not immediately demonstrate aggressive traits, the ART did not permit an animal to be in contact with members of the general public for a period of two to seven days. After an unspecified period of time, the cat was placed in the cat lounge. According to Caruso, the cat had not demonstrated an aggressive nature prior to the incident with Noah.

The summary judgment record also includes two affidavits submitted by the plaintiff to establish that (1) the defendants’ conduct fell below industry standards; (2) under the circumstances it was foreseeable that a cat could severely harm a visitor; and (3) the defendants’ actions caused the situation that resulted in the cat’s attack on Noah. Dilara Parry,4 a behaviorist and cat specialist, concluded that the defendants acted negligently in connection with the design of the cat lounge by providing an made-[241]*241quote number of litter boxes and food bowls, and that the location of the lounge next to the laundry room could lead to stress for cats. Parry summarized her opinion as follows:

“[T]he attack on Noah Lieberman was entirely foreseeable, considering the configuration, set up, and use of the cat lounge at the [shelter]. As discussed above, the cat lounge should never have been used for that purpose in the first place, and visitors, especially children, should not have had unsupervised access to the lounge. Given the degree of aggression that [the cat] demonstrated, he was likely in a very high state of arousal or stress when he attacked Noah. Many aspects pertaining to the cat lounge contributed to this aggression. Aggression in cats is not always predictable, but it is accompanied by signs, sometimes subtle, including changes in body language.Although the cat lounge should never have been used for that purpose, and although Noah and his mother should never have been given access to the lounge, had trained staff been present to monitor the cats in the cat lounge, the attack could likely have been avoided.”

Nicholas Dodman,5 a professor at Tufts University School of Veterinary Medicine, reached the same conclusion. His affidavit states that Noah’s injury was caused by an aggressive cat that “was held in a room that was too small and that had other significant inadequacies, including the lack of direct supervision [242]*242by trained staff.” His affidavit further states that, in his experience, the cat lounge was overcrowded and too small, and the cats were not adequately screened. Accordingly, Dr. Dodman explains: “These factors created a situation where an attack such as the one on Noah Lieberman was foreseeable, particularly so because the defendants did not provide adequate supervision in the lounge which they filled with minimally assessed cats.”

2. Standard of review. Summary judgment is appropriate where there are no disputes of material fact, and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “The moving party may prevail by showing that the nonmoving party has no reasonable expectation of proving an essential element of [the] case at trial.” Jupin v. Kask, 447 Mass. 141, 146 (2006). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In a negligence case, a plaintiff has to show that the defendant breached a duty of care, that the plaintiff suffered a loss, and that the defendant’s breach caused the loss. Glidden v. Maglio, 430 Mass. 694, 696 (2000).

3. Discussion.

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Bluebook (online)
873 N.E.2d 803, 70 Mass. App. Ct. 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieberman-v-powers-massappct-2007.