Noah Lieberman (Noah) sustained injuries when he was scratched and bitten by a cat while visiting a “cat lounge”
1. The facts. We take the facts from the materials submitted оn summary judgment in the light most favorable to the plaintiffs. See Foster v. Group Health Inc.,
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.
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 cаt 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 dеtermine 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 tо 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,
“[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 havе 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 prediсtable, 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 thе cat lounge, the attack could likely have been avoided.”
Nicholas Dodman,
2. Standard of review. Summary judgment is appropriate where there are no disputes of materiаl fact, and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended,
3. Discussion. The basis for the motion judge’s decision was the lack of evidence of causation.
The judge’s reasoning was based on the common-law rule that a “plaintiff cannot recover unless there was evidence warranting a finding that the cat was vicious to the knowledge of the defendant, and that her injury followed as the natural and probable consequence of the defendant’s wrong in keeping such an animal.” Goodwin v. E.B. Nelson Grocery Co.,
Thus, the question to be decided is whether a finder of fact could reasonably conclude that, “in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken [here] by the defendants], to prevent the accident that occurred.” Toubiana v. Priestly,
The motion judge further determined that the defendants were not liable because the risk of harm which resulted in Noah’s injury is not one which could be reasonably anticipated. In addition to showing that the negligent conduct was the cause in fact of the injuries, a plaintiff must show that the conduct was the “proximate or legal cause of the injury as well.” Kent v. Commonwealth, 437 Mass 312, 320 (2002). For negligent conduct to be the proximate cause of an injury, the plaintiff must show that the injury “was a foreseeable result” of the defendants’ conduct. Ibid. See Or v. Edwards,
“The question of causation is generally one of fact for the jury. A plaintiff need only show that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was resрonsible than from any other cause. An expert’s opinion based on facts in evidence is sufficient proof of causation.” Mullins v. Pine Minor College,
In sum, we conсlude that there exists a triable issue of fact regarding causation. We therefore reverse summary judgment and leave it to a fact finder to determine whether the defendants breached their duty to exercise reasonable care in designing and maintaining the cat lounge, and, if so, whether the defendants’
So ordered.
Notes
A cat lounge is an enclosed area where members of the public are invited to interact with cats available for adoption.
carry’s qualifications are set forth in the first two paragraphs of her affidavit: “I hold a a Bachelor of Arts in Psychology and in Comparative Literature from Oberlin College, with coursework in Animal Behavior. I have worked with animals since 1991. For eleven of those years, I worked in animal shelters and am familiar with the objectives and the limitations of
“Currently, I serve as the coordinator of the Cat Behavior and Socialization Program for the San Francisco Society for the Prevention of Cruelty to Animals in San Francisco, California. In that position, which I have held since 1995,1 have designed and supervised the implementation of an evaluation format and rating system for shelter cats. The objective of the evaluation process is to assess which cats are safe for the volunteers, staff and public to handle, and to better assist persons seeking to adopt cats. I have served as a consultant to numerous shelters in the United States, Canada and New Zealand, having visited approximately 60 shelters to evaluate their existing cat adoption programs.”
Doctor Dodman described his qualifications as follows: “I am a Professor at Tufts University School of Veterinary Medicine in North Grafton, MA, where I am Head of the Animal Behavior Section and Director of the Behavior Clinic. I hold a Bachelor of Veterinary Medicine and Surgery, and I received a diploma in Veterinary Anesthesia. I am a diplomat of the American College of Veterinary Behaviorists and the American College of Veterinary Anesthesiologists.”
The defendants, who have not appealed, take issue in their brief with the motion judge’s assumption that the summary judgment record was sufficient to establish their individual liability. The issue is properly before us. See Boston Edison Co. v. Boston Redev. Authy.,