N.H. Supreme Court reverses Barrington stray dog decision

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The state Supreme Court ruled in favor Tuesday of the Barrington Police Department in a case involving a stray dog destroying a resident's porch and killing his neighbor's pigs.

CONCORD — The state Supreme Court ruled in favor Tuesday of the Barrington Police Department in a case involving a stray dog destroying a resident's porch and killing his neighbor's pigs.

The high court reversed a Rochester District Court decision in 2005 requiring the police chief and the town to pay the $1,452 plus interest and court costs Dan Cui of Route 202 incurred after the stray dog ruined his property.

Cui had been fined earlier in 2005 because police mistakenly believed Cui's own dog was causing the problems. While Cui's Siberian husky did get loose and run with the stray dog, the district court judge ruled that Cui only was responsible for paying the fine for his dog and restitution to his neighbor for the killed pigs.

After that judgment, Cui decided to sue Chief Richard Conway to "show him he had a job to do," and a judge ordered the town pay the $1,452 to repair Cui's deck. The town then appealed to the Supreme Court on the matter.

Before the issue landed in court, Cui made several attempts to get the animal control officer and the Police Department to assist him with the stray dog. The animal control officer advised Cui to capture the dog himself, but Cui said he did not receive any assistance from police when the animal became more aggressive.

He tried everything he could think of to capture the dog, including feeding it, drugging it and letting it run with his own dog. The animal was not removed from his property until it almost bit him a year and a half after he started having problems with the stray dog.

The Supreme Court justices said they declined "to impose a legal duty upon the town to prevent a stray dog from wandering onto the plaintiff's property and chewing on his dwelling. To hold otherwise would impermissibly make the town a guarantor of public peace, safety and welfare."

Representing himself in court throughout the legal battle, Cui has argued, however, that the Police Department and police chief have a duty to "protect life and property" in the town of Barrington — as their page states on the town's website and which also explains the enforcement of animal complaints under RSA 466. Cui added the department failed in that duty when the chief ignored the stray dog issue and several other animal control problems in town.

Conway and the town have said those issues have occurred because the town does not have the resources or staffing to handle every animal complaint in town due in large part to the size of Barrington and budgetary concerns.

The animal control officer's hours were increased from seven to 10 hours a week this year in an attempt to provide more coverage and appease disgruntled residents.

Cui pointed out, however, the Police Department has underspent the animal control budget for two years in a row.

"It's hard as a citizen, when he's asking for more, to give him what he wants, when he's not doing much with what he has," Cui added.

The Supreme Court justices also said the district court erred by imposing liability on the town in dealing with the stray dog issue. They added that the dog control law, or RSA 466, "permits, but does not compel, law enforcement officers to impound dogs and issue notices of violation to their owners."

The court also found Cui did not prove the Police Department's actions or lack thereof caused him injury or breached its duty of care.

Cui noted that if anyone had been harmed in the issue with the stray dog and come forward, the town would have been liable, which he said the court's ruling also points out.

"The town needs to listen to that," he added.

Cui said he understood the justices did not want to set precedent by forcing one community to be liable for an animal complaint issue, but he was disappointed they ignored the issue of whether police did their job in protecting life and property.

"The chief continues to ignore issues," Cui said, noting other residents are still having problems with their neighbors' dogs and their complaints are falling on deaf ears at the Police Department.

Cui has decided to not pursue the stray dog issue any further, stating it is "a waste of everyone's time." He will take up other projects, such as trying to get a police commission started and new selectmen elected who do not push "their own political agendas."

Residents, including Cui, petitioned for a police commission this year, but the warrant article was invalidated at the town's deliberative session.

Despite that invalidation in February, the article, on which many residents still chose to vote, fell short by only about 100 votes at the polls in March.

"I think it will be easier to get the word out there next time," Cui added.

He said he was pleased that Jackie Kessler was elected to the Board of Selectmen this year because she does not appear to have "a background in town politics," and he believes this will help foster better communication with residents and officials.

"We need to open up discussion in this town," he added. "Communication has been cut off with residents" like it has with the police chief.

Conway this morning referred all inquiries in the case to the town's attorney, Christine Casa of Portsmouth, who could not be reached for comment.

Source: www.fosters.com

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