Malchanov

o In common parlance, the verbs tease, torment and abuse all

connote the doing of acts designed to annoy and irritate the person
or animal to whom or which the acts are directed
o Teasing is not looked at from the POV of the dog, rather the
intentions of the plaintiff.
o The defendant can still be liable when the plaintiffs actions caused
the dog to injure him.
o None of the terms are apt for describing friendly playing with a dog.
Burgoyne striking dog while terminating dog fight did not amount to TTA
o Requires plaintiff to prove that at the time of the biting he was not
annoying, tormenting or abusing the dog.
The court holds teasing as synonymous with annoying.
o Teasing, tormenting, or abusing covers the entire gamut of
wrongful acts against dogs.
Wrongful acts are acts designed to annoy or irritate the ...
animal to ... which the acts are directed- (Malchanoff)
o No other facts intervene to suggest that the kicks were associated
with any preexisting ill will on the part of plaintiff
o no other facts intervene to suggest that the kicks were associated
with any preexisting ill will on the part of the plaintiff (Burgoyne v.
Owen)
o plaintiff is required to prove that any striking of a dog was not
accompanied by an intent to annoy that dog.
o Must have preexisting ill will
Designed to irritate dog
MALICIOUS
Blacks
o Abuse: A departure from legal or reasonable use; misuse. 2. Cruel
or violent treatment of someone; specif., physical or mental
maltreatment, often resulting in mental, emotional, sexual, or
physical injury. Also termed cruel and abusive treatment.
o
Koller it is enough if the circumstances show that the plaintiff, at the time
of injury, was not guilty of any of the acts proscribed by the statute.
o governing in these terms the entire gamut of wrongful acts against
dogs
Sullivan places burden of proof on Plaintiff
o The rule as to the burden of proof, applicable both to criminal and
civil cases, is that, where the duty or obligation or crime is defined
by statute, if there be an exception in the enacting clause, or an
exception incorporated into the general clause, descriptive of the
duty or obligation or crime, then the party pleading must allege and
prove that his adversary is not within the exception; but if the

exception is in a subsequent, separate or distinct clause or statute,

then the party relying on such exception must allege and prove it.
Ansel v. Boston
Plaintiff has burden of proof
o In other states this exemption is treated as an affirmative defense
through contributory negligence
o G.L (Ter.Ed.) c. 231, 85 - Massachusetts does not allow a
defendant, tortfeasor, to be exempt from liability because of
contributory negligence by the plaintiff, that is unless it supersedes
the defendants negligence.
o Massachusetts imposes liability on the owner of the dog, regardless
of negligence on either side. The exception to this would rather be
intentional acts, designed by the plaintiff to provoke the animal
leading to the injury.
Curran
o By disproving TTA he must show that his own wrongful act did not
contribute to injury
Rossi v. DelDuca o Strict liability imposed by the state is of no avail to a plaintiff if at the
time of his injury he was committing a trespass or other tort, or was
teasing, tormenting or abusing such dog. And it is incumbent upon
a plaintiff to plead and prove that he has done none of these things.
(citing Sullivan v. Ward)