Paul Orsini v. Sean Robey (2010)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Paul Orsini, resides at 375 Platt Avenue in West Haven.   He and his wife, Elaine Orsini, are the owners of a female dog, a black Labrador Retriever named Pepper.

The Defendant, Sean Robey, resides next door at 373 Platt Avenue He is the owner of a male pit bull.

The properties are separated by a fence, a vinyl coated structure which stands between three and four feet high.

On October 2, 2008 the Defendant's pit bull entered the Plaintiffs' back yard, where Pepper was in “heat.”   The two canines were discovered joined together in an intimate fashion, and were separated by the Plaintiff, and the Defendant.

Following this incident, the Orsinis observed that Pepper had begun to eat more than usual, and had gained weight.   They took her to a veterinarian, who discovered that she was pregnant.   This visit occurred on October 31, 2008 (Ex 1).

The Plaintiff decided to terminate the pregnancy, because Pepper suffered from a heart condition, and would not survive the pregnancy, according to Paul and Elaine Orsini.PAGE 1]

After a preliminary examination at the VCA Shoreline Veterinary Referral and Emergency facility on November 5, 2008 (Ex. 2), Pepper underwent an Ovariohysterectomy procedure on November 13, 2008 (Ex. 3).

The Plaintiff initiated this action by way of a one-count complaint made returnable February 11, 2009.   He sought compensation from the Defendant for the cost of terminating Pepper's pregnancy, and further claimed damages for emotional distress, as a result of the October 2, 2008 incident.

In his Second Revised Complaint, dated February 27, 2009, the Plaintiff withdrew his claim for emotional distress.

In his answer, dated August 16, 2009, the Defendant, Sean Robey, filed a counterclaim, alleging intentional infliction of emotional distress.   That claim was withdrawn at the time of trial.

The Defendant also included in his answer, by way of special defense, the following:  “Any damage sustained by the Plaintiff were the result of his own wrongdoing.”

ACTION PROPERLY BROUGHT PURSUANT TO SECTION 22-357 OF THE GENERAL STATUTES

To the extent that the Defendant has claimed, by way of special defense, that the Plaintiff's own negligent conduct contributed to his damages, that claim will not avail him in an action brought pursuant to § 22-357 of the General Statutes.   That statute reads:

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 one who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog ․

Section 22-357 imposes strict liability upon the owner or keeper of a dog that does damage to the body or property of any person.  Falby v. Zarembski, 221 Conn. 14, 19 (1992).   The only exception to the liability of an owner or keeper is that the person sustaining injury was not committing a trespass or other tort, or was not teasing, tormenting or abusing the dog.   Conduct not within the limitations of the statute, although perhaps constituting negligence, is not a defense to an action brought under the statute.   McCarthy v. Daumis, 117 Conn. 307, 310 (1933);  Grannis v. Weber, 107 Conn. 622, 625 (1928).

To the extent that the special defense claims that the Plaintiff was teasing, tormenting or abusing the dog, or committing a trespass at the time of the incident on October 2, 2008, it is found that the exceptions in the statute do not apply, and the Defendant has failed to bring the Plaintiff's conduct within the terms of the statute.

Elaine Orsini described Pepper as a “house dog,” who was not permitted to roam, and was permitted out of the house only to play in the back yard.   She testified that the dog was restricted to the house and grounds, and that while she was working, other members of the family watched the dog, and prevented her from roaming.

She claims that the incident of October 2, 2008, was the only contact with another dog, of which she has knowledge.

The Defendant claims that the pit bull was not responsible for impregnating Pepper.   He testified that it is his understanding that the pit bull had been “fixed” and could not have been responsible for the pregnancy.

Given the fact that Pepper exhibited weight gain and an increased appetite shortly after October 2, 2008, and was determined to be pregnant on a visit to the veterinarian on October 31, 2008, it is found that the incident of October 2, 2008 in the back yard of 375 Platt Avenue, resulted in Pepper's pregnancy.

It is therefore found that the Defendant, as the owner and keeper of the pit bull, is responsible for any damage occasioned to Pepper, as a result of the incident, pursuant to § 22-357 of the General Statutes.   This includes the costs incurred in terminating Pepper's pregnancy.

FINDINGS AND CONCLUSIONS

In light of the evidence presented, the court makes the following findings and conclusions.

It is found, that the Defendant, Sean Robey, was the owner and keeper of a pit bull, which entered the Plaintiff's property, 375 Platt Avenue, West Haven, on October 2, 2008.

It is found that when the pit bull entered the Plaintiffs back yard, his black Labrador Retriever, Pepper, was playing in the back yard, and was in “heat.”

It is found that Pepper became pregnant as a result of contact with the Defendant's pit bull.

It is found that the Plaintiff, Paul Orsini was not teasing, tormenting, or abusing the dog on October 2, 2008, nor was he committing a trespass.

It is found that Pepper, on October 2, 2008, was the property of the Plaintiff, Paul Orsini, and his wife, Elaine Orsini.

It is found that for some time prior to October 2, 2008, Pepper suffered from a heart condition, which made it unwise for her to continue with the pregnancy.

It is found that the Plaintiff sustained the following expenses as a result of the October 2, 2008 incident in his back yard:[PAGE  4

Baybrook Animal Hospital (Ex. 1) $ 142.90

VCA Shoreline Veterinary (Ex. 2)(11-5-08) $ 739.93

VCA Shoreline Veterinary (Ex. 3)(11-13 & 11-14) $2,232.57

TOTAL $3,115.40

It is found that the Plaintiff should not recover for the portion on of Exhibit 3, which relates to a surgical procedure on Pepper's face, since the need for the surgery was not brought about by the October 2, 2003 incident:

Surgical Mass removal $201.20

Full Written Biopsy $186.42

Radiograph of Thorax $170.30

TOTAL $557.92

CONCLUSION

Judgment may enter in favor of the Plaintiff;  Paul Orsini, in the amount of $3,115.40, as against the Defendant, Sean Robey.

Costs are awarded to the Plaintiff.

RADCLIFFE, J.

Radcliffe, Dale W., J.