Ibraheem Adebanjo v. Pedro Galviz (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT AS TO COUNT ONE, MOTION # 111.00

This action arises out of an incident where it is alleged the plaintiff was attacked and injured by the defendant's dog.   The plaintiff moves for summary judgment as to Count One, which alleges liability under Conn. Gen.Stat. § 22-357.

Standard of Review

A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17-44;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact.  Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence.  Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).   Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence.  PB § 17-46.

Discussion

Here, the plaintiff seeks summary judgment as to Count One of the complaint which alleges strict liability under Connecticut's dog bite statute, CGS § 22-357.   Section 357 provides:

If any dog does any damage to either the body or property of any person, the owner or keeper, ․ shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing tormenting or abusing such dog.

In his complaint, as required, the plaintiff avers the negative with respect to the exemptions from strict liability, trespass, or teasing, tormenting or abusing the dog.  Goodwin v. Giovenelli, 117 Conn. 103, 107 (1933).

In support of the motion for summary judgment, the plaintiff has filed an Affidavit in which he states that the defendant is the owner of the dog that attacked him.   He further attests that he was not trespassing at the time of the attack and that he was not teasing, tormenting or abusing the dog at the time of the attack.   Having submitted this affidavit, it becomes incumbent upon the defendant to come forward with some admissible evidence to rebut the affidavit so as to create a genuine issue of material fact.   Here, the defendant has not responded to the motion for summary judgment.¹  Accordingly, the plaintiff has demonstrated, as to Count One, that there is no genuine issue of material fact as to whether the defendant is liable to the plaintiff pursuant to CGS § 22-357.   See Auster v. Norwalk United Methodist Church, 286 Conn. 152 (2008).   As to liability, judgment in favor of the plaintiff as to Count One will enter.

SO ORDERED

Dooley, J.

FOOTNOTES

FN1. The defendant filed a motion for extension of time up to and including July 16, 2010 within which to respond to the motion for summary judgment.   That motion was granted but to date, no objection or counter evidence has been filed.   Further, counsel for the defendant did not appear at short calendar to argue the motion..  FN1. The defendant filed a motion for extension of time up to and including July 16, 2010 within which to respond to the motion for summary judgment.   That motion was granted but to date, no objection or counter evidence has been filed.   Further, counsel for the defendant did not appear at short calendar to argue the motion.

Dooley, Kari A., J.