Supreme Court of New Hampshire, 1949.
95 N.H. 318, 63 A.2d 233.
Facts
While on the porch of a storefront, Plaintiff’s 4 year old daughter tries to ride a dog like a horse and pulls its ears. The dog bites the daughters nose and the Plaintiff wants to sue the Defendant store owners for these damages caused to the child.
Procedural History
Trial court found for Plaintiff. Plaintiff is so young that she is incapable of being found of contributory negligence and if she was too young to be found for negligence, she is too young to be found for a trespass of chattel or other tort.
Issue
Can a 4 year old be liable for trespass to chattel? When can a party be liable for trespass to chattel?
Arguments for Both Parties
Plaintiff argues that they should recover for the damages wrought by the dog on the daughter. Defendant argues that the plaintiff cannot receive damages for the dog bite because while the dog bit her nose she was engaged in non-consensual and harmful activities with the dog that bit her. They state the rule that nullifies dog bites if the actor is engaged in a tortious activity, especially that of trespass.
Holding
The court holds for plaintiff because the court finds that no damage was done to the chattel.
Rule
One without consent or privilege who uses or intermeddles with a chattel that is someone else’s property and or possession is liable for trespass to chattel if
- The chattel is impaired or value lessened,
- The possessor is deprived use of said chattel for substantial time,
- Or the deprivation causes harm to the owner or someone or something in the possessor’s interests,
- Inviolability of chattel is not protected, harm must be actionable
Another relevant statute is that dog injuries are recoverable unless the injured can be proved to be involved in an illegal trespass or tort during the time in which the injury occurs.
Spencer M. Durden 