Glidden v. Szybiak
63 A.2d 233, 95 N.H. 318 (1944)
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Rule of Law:
Under the common law principle of trespass to chattels, a harmless, intentional touching or intermeddling with another's property, such as a dog, does not constitute a legally actionable trespass unless it causes actual harm to the property, deprives the owner of its use for a substantial time, or causes harm to the owner.
Facts:
- Jane Szybiak owned a dog named Toby.
- Jane and Toby resided in a house owned by her father, Louis Szybiak.
- Louis objected to the dog's presence but permitted it to stay on the condition that Jane would be fully responsible for the animal.
- Louis exercised no care, custody, or control over the dog; Jane and her mother were its sole caretakers.
- A child, Elaine, was injured by the dog Toby.
- At the time of the injury, Elaine was intentionally intermeddling with the dog, but her conduct caused no harm to the animal itself.
Procedural Posture:
- Elaine brought actions against Jane Szybiak (the owner) and Louis Szybiak (the homeowner) in the trial court to recover for injuries caused by the dog Toby.
- Following a trial, a verdict was rendered against both Jane and Louis.
- Both defendants appealed the judgment against them to the state's highest court.
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Issue:
Does a person's harmless, intentional touching of another's dog constitute a 'trespass or other tort' sufficient to bar recovery under a statute that precludes liability if the injured person was engaged in such an act?
Opinions:
Majority - Branch, C. J.
No. A person's harmless, intentional touching of another's dog does not constitute a 'trespass or other tort' sufficient to bar recovery under the statute. The court adopted the Restatement of Torts' definition of trespass to chattels, which requires more than harmless intermeddling. Unlike trespass to land, which protects the inviolability of property, a trespass to a chattel is only actionable if the intermeddling (a) impairs the chattel's condition, quality, or value, (b) deprives the possessor of its use for a substantial time, or (c) causes bodily harm to the possessor. Since Elaine's conduct did not injure the dog, she did not commit a trespass and is not barred from recovery against the owner, Jane. However, the court found that the defendant Louis was not liable, as 'possession' under the statute requires the exercise of care, custody, or control, which Louis did not have over the dog; he merely allowed it to live in his house.
Analysis:
This decision significantly narrows the scope of the 'trespass' exception in dog bite statutes by importing the 'actual harm' requirement from the Restatement of Torts for trespass to chattels. It distinguishes trespass to chattels from trespass to land, where any unauthorized entry is actionable. This precedent protects plaintiffs, especially children, who may engage in technically unauthorized but harmless interactions with animals, ensuring that the strict liability purpose of such statutes is not easily defeated. The ruling also clarifies that statutory 'possession' of an animal requires active care and control, not merely passive acquiescence to its presence on one's property.
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