Christine Kizer v. Christopher O'Neal (2010)

MEMORANDUM OF DECISION

This case involves an action under the so-called dog bite statute, 22-357.

General statutes § 22-357 provides:  “if any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, 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.   If a minor, or whose behalf an action under this section is brought, was under seven years of age at not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action.”

Originally the suit was brought against Christopher O'Neal and Debra Vanepps as owners and keepers of a yellow lab who bit the child plaintiff Zachary Kizer who was five at the time of the incident.   The child sued for physical injuries he received which it is claimed will cause him mental and physical pain from the injuries and scarring that he received.   It is alleged the injuries will be permanent.

The mother Christine Kizer has sued for the medical expenses and bills she has incurred.   The action against Ms. Vanepps has been withdrawn.   Christopher O'Neal has admitted in response to requests to admit that he is the owner and keeper of the dog under the statute.   Mr. O'Neal also admitted the dog was named “Clutch” and that the dog did bite Zachary.   He also admitted the child suffered personal injuries and that the dog was in his vehicle at the time of the biting and that he was not muzzled and that he failed to warn the plaintiffs “in any manner about the yellow Labrador dog.”

1

Trial was held before the court on July 8, 2010.   The court will first review the facts brought out at trial and then try to apply the statute to those facts.

The date of the incident was May 29, 2007.   On that date Christine Kizer went with her then boyfriend Richard Frank to the Rocky Hill Motor Cross Track where people rode their motorcycles.   She took her daughter Madelyn and her son Zachary.   At the time of the injury Ms. Kizer was riding her motorcycle and Mr. Frank was left in charge of the children while she was doing so.

Mr. O'Neal had his dog with him and the children petted the dog and played with him and at various times the dog, Clutch, was standing, lying down and running around according to Mr. Frank.   O'Neal did not caution the children regarding their activities with the dog and did not say they were being too loud Frank also said that when the dog and the children were outside the vehicle where the injury took place he did not see the children do anything other than pet the dog.

On Cross-examination Frank said he had seen Clutch at the track a few times and based on his prior observation had no reluctance about having the children go near the dog;  he never, for example saw the dog bite anyone.   On direct he stated he was talking to O'Neal over by the latter's truck and the children and the dog were in the truck.   The door was open.   Frank said “at one point I looked in and the dog was laying on the seat.   Madelyn was laying behind the dog cuddling with it and Zachary was, I believe, on his knees in front of the dog petting it.”   He did not see Zachary do anything else beside petting the dog.   On direct Frank said he realized Zachary was injured when he heard the dog bark aggressively and another person, Mike King, jumped into the truck.   Frank stated he and O'Neal were towards the back of the truck.

On cross Frank said he could not remember seeing the dog go inside the truck.   He also stated that from his vantage point outside the truck he could not see the two children inside the truck, he could not see “what was going on inside the truck.”   At one point his testimony seemed to differ from what he said on direct.   After saying he could not see what was going on inside the truck the following occurred:

Q. All right.   So, you don't know if they (the children) were petting Clutch or if they were tormenting Clutch, right?

A. I guess not.

He did later say that the kids were not noisy.

The child was then called to testify.   He said that when he first met the dog he was petting it nicely as was his sister.   He was not admonished about the way he was touching the dog.   He and his sister did not poke the dog, touch his eyes, pull on any part of his body, squirt the dog with anything, or pull an object away from him.   He did not hit the dog neither did his sister.   The dog did not bark.

At one point Zachary said the dog trotted over to the truck.   He said the dog sat in the passenger seat.   He was asked what happened then and said:

“A. Well, we went in (the truck) and we started petting him again, and when I got a bite I was gonna hug him, and you know how you go forward first but then ․ then you go on the side.   Well, when I went forward he just jumped at me and just bit my nose.”

Zachary stated the dog shook his head back and forth as if his nose was a chew toy.   While in the truck he denied poking, pulling the dog, touching the dog's eyes.   He further denied making loud noises to the dog.  “Maybe we said good dog a few times, but not too loud.

Defense counsel then called his client Christopher O'Neal who said he owned the dog since 2000.   The dog never bit anyone or exhibited a propensity to do so.   O'Neal testified he brought the dog everywhere and he never had a problem with him as regards children or anyone else.   Clutch would rather be in the truck than anywhere.

Mr. O'Neal said he was at the track and ran into Mr. Frank and the children.   The children asked if they could pet the dog and he had no problem with that.   The children petted the dog who was lying down;  they were petting on the head and body and they were gentle.   The children, however, were making a lot of noise especially Zachary.   He did not see the children poke Clutch or jab him or in any way torment the dog.

O'Neal then said that at some point Clutch got up and went into the truck and sat on the passenger seat.   Madelyn went into the truck first and “maybe ten seconds later the little boy.”   He had earlier testified he “kind of” could see inside the truck from where he was located but “not fully.”

In any event he then heard Madelyn scream and cry and heard his dog “freaking out.”   He could not see inside to the passenger seat and determine what happened.   O'Neal said the children were in the truck five or ten seconds before all this happened.   The girl was in longer, “she seemed to be petting Clutch.”   When the boy came inside the truck he was loud, not screaming, however.

O'Neal testified only Jeffrey Standish had a clear view into the truck;  Standish was sitting on another truck.   Neither O'Neal nor Frank had a clear constant view into the truck according to their testimony.

On cross O'Neal said he did not tell Zachary to be quiet and did not tell Madelyn either.   He did not tell the children not to enter the truck.   He also said Clutch would enjoy being petted and hugged by children.

Jeffrey Standish was then called to testify.   He said he could see inside the truck, the door was open.   He was sitting on the tail gate of a tall truck.   Prior to them going into the truck he saw the kids petting the dog and everything was fine.   As to whether the children were loud he said “Yeah I mean they're kids.   They were playing.”

He saw the dog go into the truck.   The girl first, then the boy.   They were still playing;  the boy was rough housing with his sister.   He “kind of moved her out of the way and went right for the dog,” apparently to give it a hug.   Standish said the boy pushed Madelyn out of the way to play with Clutch from his perspective and the girl ended up on the floor of the truck.

He further described the incident by saying after Madelyn ended up on the floor Zachary went right for the dog “it was kind of aggressive.”   He agreed Zachary “kind of lunged at the dog.”   Madelyn started crying as she was pushed, he could not be sure she was crying but “it was really loud,” the children were arguing with each other.   He further testified the boy went for the dog and started trying to play with the dog in a “very rough manner.”   The dog bit Zachary after he was in the truck only five seconds.   On cross Standish said Zachary “made good physical contact with dog before he got bit.”   The child moved quickly toward the dog, but Standish said Zachary did not tease or taunt the dog, giving his legal opinion one would suppose.   But he did not hold out anything to the dog and then withdraw it.   He said the kids were a little excessive in their noise making but he or O'Neal never said anything to the children about this.

2

The case raises complicated issues at least for the court.   First the court would indicate that it concludes all the witnesses were honest and straightforward.   The child, Zachary, struck the court as a bright and sweet child trying to do his best to narrate the events preceding and surrounding the dog bite.   Zachary did suffer fairly severe injuries requiring several days of hospitalization and still has scarring in the area of his nose.   Also fairly extensive medical expenses were incurred for Zachary's treatment.   Apart from Zachary, the only person, however, who had a direct view into the cabin of the truck where the incident occurred was Mr. Standish.   He struck the court as a candid witness with no axe to grind, to coin an expression.   His testimony was not factually favorable to the plaintiffs but he appeared to be a fair witness in the sense that he did not exaggerate his opinion in this regard-for example, at one point when asked if the children were noisy he basically said they were just kids playing, before going into the truck they were just petting the dog-everything was fine.   He even characterized Zachary's behavior as not teasing or taunting despite his factual rendition that might suggest otherwise.

The court was able to find an extensive article on the subject of this case and read several cases cited in it, see 11 ALR 5th 127 “Intentional Provocation, Contributory or Comparative Negligence, or Assumption of Risk As a Defense to Action for Injury By Dog,” Zitter J.D. (1993) (2010 Supplement).

Some of the cases cited and our case law and statute raise interrelated issues.   Thus some courts hold that young children are not capable of provoking a dog.   Thus Ohio has a dog bite statute which states an owner shall be liable for any damages or injuries caused by a dog “unless such damage or injury was to the body or property of a person who, at the time such damage or injuries were sustained;  was committing a trespass on the property of the owner, or was teasing, tormenting, or abusing such dog on the owner's property,” (A.C.955.28).   The court in Ramsey v. King 14 OhioApp.3d 138, 141 (1941) (470 NE 2d 241), said:  “We cannot say where the line of demarcation occurs, with respect to the ability of a child to tease, torment, or abuse within the meaning of RC 955.28 but we hold as a matter of law, that a three year old child is incapable of such conduct.”

Other states take a different view.   Thus in Toney v. Boutthillier 631 P.2d 557 (Ariz.App.1981), the court noted that its statute imposed liability on dog owners for injury caused by the dog regardless of the owner's fault.   But the court concluded:  “Consequently we believe that the corresponding statutory defense (of provocation) must be construed without reference to fault of the individual committing the provocation.”  Id., page 405.   Thus the actions of a child of tender years may be sufficient provocation under the Arizona statute.

In Nelson v. Lewis, 344 N.E.2d 268 (Ill.App.1976), the court said at page 272:

A determination of provocation does not require consideration of the degree of willfulness which motivates the provoking cause.   Had the legislature intended only intentional provocation to be a bar to recovery we think it would have so specified.   Its conclusion apparently was that an owner or keeper of a dog who would attack or injure someone without provocation should be liable.   This implies that the intent of the plaintiff is immaterial.   Nor do we think that the plaintiff's status as a child of tender years should relieve her of all responsibility for a provoking act.

Our statute, in effect, permits a finding that a child under seven can be found to have provoked a dog who then attacks him or her but creates a presumption that the child was not so acting and places the burden on the defendant dog owner to show otherwise.   Although no case explicitly says so, this would imply that any such provocation by adult or child need not be intentional.   How could it be said under our statute that a three, four or five year old intentionally abused, tormented, or teased a dog which would imply willful conduct.   In fact the language of our more recent cases interpreting the present statute seems to suggest that non-intentional behavior without consideration of willfulness can be considered provocation-the test being what would the effect of any such behavior have on a dog as a matter of common knowledge.   Two leading cases are Kowal v. Archibald, 148 Conn. 125, 129 (1961), and Weigartner v. Bielak, 142 Conn. 516, 519 (1955).  Doerfler v. Redding, 2 Conn. Cir. 694, 697 (1964), sets forth the reasoning of these cases.   There the court said:

The defendant also maintains that the conduct of the plaintiff constituted a teasing, tormenting or abusing of the dog.  “The clause in the statute denying recovery to a plaintiff who ‘was teasing, tormenting or abusing such dog’ refers to conduct which (a) is of such a nature that it would naturally antagonize the dog and therefore cause it to make an attack upon the injured party and (b) is improper in the sense that it is without justification.”   Kowal v. Archibald, supra, 129;  ․ These words of the statute “are intended to include only such acts as would naturally irritate a dog and thus provoke it to retaliation.   In adding these ․ words to the statute, the legislature intended to except dog owners from liability for damage done by a dog to a person who himself had engaged in such conduct as would be calculated, dog nature being what it is, to antagonize the animal and, therefore, cause it to make an attack upon him.”  Weigartner v. Bielak, supra, 519.

It might be argued that the language of Kowal at least in the court's opinion is a departure from an older case Kelley v. Killovrey, 81 Conn. 320 (1908), in that case's interpretation of an earlier dog bite statute.   There the court said “when one's conduct toward a dog or other animal is knowingly such as is calculated to incite or provoke it to acts of damage” recovery is barred.  Kowal in this sense does create an exception to a rule that would bar recovery under the present statute for acts which by their very nature would arouse or provoke a dog.   There the plaintiff swung a bag she was carrying at a dog who made aggressive moves toward her.   In such a situation intent becomes important as a necessary adjunct to the notion of justification.   If the plaintiff swung the bag not to provoke the dog but to prevent it from attacking her the court said, in upholding the verdict for the plaintiff, the jury could have found that she was justified in doing what she did-she was motivated by “instincts of self-preservation,” Id., page 130.

3

The court will now try to apply these general principles to the case before it.   As indicated the court places reliance of the testimony of Mr. Standish.

First the court would note that Zachary's actions even by an unintentional standard cannot be said to involve abusing or tormenting the dog which imply the infliction of pain or injury, cf Ramsey v. King, 14 OhioApp.3d 138, 140 (1984), interpreting the same language in Ohio's statute but it does fall under the category of “teasing” which the Ohio court said means to “annoy or trouble ․ to be troublesome or pester” Webster's Third International Dictionary defines “tease” similarly in definition 4(a) “to disturb or annoy by persistent, irritating, or provoking action ․”

Here the dog was confined in a closed, small place.   The child Madelyn went into the truck first.   She like her brother had been petting the dog outside the truck and continued to do so once inside the truck.   The brother enters the cabin of the truck, Zachary started rough housing, he pushed his sister out of the way and she ended up on the floor crying.   Zachary then “kind of lunged at the dog,” he went right for the dog, “it was kind of aggressive, the children were really loud at this time.”   The court does not find Zachary wanted to hurt the dog in any way, he seemed to be a nice child;  but he according to Standish went for the dog to hug or play with the dog in a “very rough manner” Zachary himself said he “got a bite”-he was going to hug Clutch;  He said “you know how you go forward first but then ․ then you go on the side.   Well when I went forward he just jumped at me and just bit my nose.”

The actions by Zachary went beyond mere playfulness and simple petting.   Given the confined space the dog was in, Zachary's action in pushing the sister away and her ensuing crying, and the children's loudness immediately ensuing, Zachary's lunge toward the dog meets the statute's concept of provocation and does so despite the statutory presumption and the burden on the defendant to establish the exception to liability.   And the court would note despite any specific intention on Zachary's part to abuse or torment the dog;  his actions were calculated to “tease” the dog in the sense of annoying or pestering the dog.

The court enters a verdict for the defendant.

Corradino, J.T.R.

Corradino, Thomas J., J.T.R.