Is Gertrude an attractive nuisance? If so, how does that change the duty of care?

One beautiful summer afternoon Jonathan and Teddy, both age six, were engaged in a particularly rollicking game of football in the backyard of Teddy's house. In an effort to emulate the quarterback hero of his fantasies, Jonathan took aim at Teddy and catapulted the ball into the air. Unfortunately, his aim was off and the ball landed in the backyard of Teddy's neighbors, Mr. and Mrs. Baxter. The Baxter backyard was surrounded by a six-foot wooden fence. Undeterred by this obstacle between him and his ball, Teddy attempted unsuccessfully to scale the fence. Jonathan, who was two months older than Teddy and, therefore, proportionately wiser, suggested that they try the gate to the yard.

Teddy knew that the Baxters always kept the gate locked, and he also remembered that he had been warned repeatedly by both the Baxters and his parents that he should never enter the Baxter yard without supervision. Jonathan urged him to try the gate anyway, but Teddy was hesitant. He was circumspect about entering the yard not only because of his parents' and the Baxters' admonitions, but also because of the presence of Gertrude, the Baxters' German shepherd. Gertrude and Teddy had a somewhat strained relationship because Teddy, in some of his less enlightened moments, had taken a certain perverse pleasure in provoking Gertrude into a barking frenzy by teasing her through the gate. He was reluctant to test her capacity for forgiveness, but, egged on by Jonathan, he tried the gate latch and found, much to his surprise, that it was unlocked. Hesitantly, he opened the gate and peered inside. With Gertrude nowhere in sight he bolted across the yard to retrieve the ball.

Gertrude, her hearing somewhat impaired by advanced age, was deeply immersed in canine daydreams and was oblivious to Teddy's activities. Because of this Teddy might have escaped undetected had he not stubbed his toe on a sprinkler and let out a loud yell. The slumbering Gertrude, awakened by Teddy's cries, sprang to her feet. Somewhat disoriented but drawing on her instincts as a guard dog, Gertrude leaped off the porch in the direction of the unknown intruder. When she was within lunging distance of the now-panicked Teddy, vague memories of loathing filtered into Gertrude's consciousness as she began to recall the many indignities she had endured as a result of Teddy's tormenting.

Goaded by these memories, as well as her instinctual drive to protect her domain, Gertrude took aim for the hapless Teddy. When Teddy felt Gertrude grab hold of one of his pant legs he screamed in terror and tried desperately to kick Gertrude away. Incensed by the kicking, she received from Teddy, Gertrude plunged her teeth deeper, piercing Teddy's flesh. Teddy's continual thrashing about only made Gertrude more determined to maintain her viselike grip on Teddy's leg.

Meanwhile, Jonathan, a spectator to this whole drama, valiantly attempted to rescue his friend by pelting Gertrude with rocks he found in the Baxters' driveway. Unfortunately, the sting of the rocks further enraged Gertrude and, not realizing their source, she reinforced her grip on Teddy's leg.

Drawn by Jonathan's pleas for help and Teddy's screams of terror, a passerby, Mr. Goodright, came running into the Baxters' backyard. Immediately sizing up the situation, Mr. Goodright began kicking at Gertrude with all his might to induce her to release Teddy. Gertrude, stunned by his blows, let loose of Teddy to attack the object that was causing her pain. Seizing this opportunity to escape, Teddy dragged himself toward the gate and Jonathan pulled him to the safety of the driveway.

The courageous Mr. Goodright now pitted his wits against 120 pounds of wrath. Gertrude, enraged by the kicks she had received, lashed out wildly and caught Mr. Goodright's right hand. Pummeling Gertrude's head with his free arm, Mr. Goodright struggled desperately to free his hand from Gertrude's jaws.

The duo might have continued this struggle until one of them collapsed from exhaustion, but, as fate would have it, Mr. Baxter arrived home early from work. As he drove in and caught sight of the fracas taking place in his backyard, he vaulted out of his car, yelling at Gertrude as he ran. When her master's commands finally penetrated her consciousness, Gertrude released her prey.

But the damage had already been wrought. Both Teddy and Mr. Goodright were bleeding profusely from their wounds, and Teddy, his attention no longer diverted by the combat between Mr. Goodright and Gertrude, was beginning to become painfully aware of the full extent of his injuries. Both Mr. Goodright and Teddy sustained serious injuries from their battles with Gertrude.

Teddy would bear emotional as well as physical scars as a result of his encounter with Gertrude. In the future he would experience a phobic disorder connected to dogs, to the extent that the approach of any dog in his direction would trigger an anxiety attack. Mr. Goodright, a longtime animal lover and therefore more sympathetic to Gertrude's acts, would experience no emotional reactions from his trauma but would have to suffer the long-term consequences of his heroic efforts. He would endure several operations to repair the damage to his hand and would never gain full control of his hand again. As a result, his career as a much heralded concert pianist would come to an untimely end, and he would be relegated forever to the humble life of a piano teacher.

One of the first questions that the attorneys representing Teddy and Mr. Goodright in our hypothetical case will have to consider is the question of duty.