Thomas Skarupa v. Andrew Hincks (2011)

MEMORANDUM OF DECISION DEFENDANTS ANDREW & MARY HINCKS' MOTION FOR SUMMARY JUDGMENT

The plaintiff, Thomas Skarupa, was riding his bicycle on a public road in the town of Riverton when an exuberant dog from a neighboring house gave chase causing him to fall and suffer personal injury.   He has sued Andrew and Mary Hincks, and their daughter, Caroline Hincks, for negligence, strict liability under General Statutes § 22–357 and creating a public nuisance in connection with the incident.   In his amended complaint,¹ Skarupa alleges the following facts:  On July 18, 2009, he was riding his bicycle in the vicinity of the residence of Andrew and Mary Hincks who owned, managed, possessed, maintained and controlled the premises.   Caroline Hincks also resided there along with her dog, “Stella.”   Caroline Hincks was Stella's owner and keeper.   Andrew and Mary Hincks were also keepers of the dog and harbored it.   As the plaintiff rode by, Stella ran from the premises and pursued him.   Although Skarupa took action to evade the dog, Stella “suddenly and without warning, jumped at the Plaintiff causing him to lose his balance and fall ․” As a result, the plaintiff suffered serious bodily injuries.

In their answer, Andrew and Mary Hincks admitted that, on the date of the incident, they lived at the premises and that they owned, managed, possessed, maintained and/or controlled the premises.   They also admit that Caroline Hincks lived there at the home at that time, but they deny that she resided in Andrew and Mary Hincks' living space.   They deny or leave the plaintiff to his proof as to the remaining allegations.

Pending before the court is Andrew and Mary Hincks' motion for summary judgment as to counts one, three and five, the counts directed at them.²  In support of their motion they append their own sworn affidavits and uncertified excerpts of transcripts of deposition testimony of all the defendants.   In his opposition to the motion, the plaintiff has attached transcripts of statements that Andrew and Caroline Hincks made to an insurance adjuster, as well as certified excerpts of deposition testimony of each of the three defendants.   The matter was argued at short calendar on August 29, 2011.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

It is the defendants' burden, as the movant, to prove the nonexistence of disputed issues of material fact on a motion for summary judgment.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

As to counts one and three, Andrew and Mary Hincks argue that they cannot be held liable to the plaintiff for common law negligence or strict liability because the evidence establishes that they are not “owners or keepers” of the dog, and thus they did not owe the plaintiff a duty of care.   In response, the plaintiff states that there are disputed issues of fact as to this issue that are unresolved.   Specifically, he argues Andrew Hincks made a statement to the insurance adjuster ³ which reflects knowledge of Stella's veterinary history, refers to Stella as “our dog” and implies that he had some participation in deciding whether to euthanize Stella.   This, according to the plaintiff, constitutes evidence that Andrew and Mary Hincks may be “keepers” of Stella independent of their status as landlords.   The plaintiff also points out that the evidence indicates that the landlord-tenant relationship between Andrew and Mary Hincks and their daughter is not the typical arms-length transfer of a possessory estate in land.   The plaintiff also argues that the Appellate Court has recently stated that liability for common law negligence in canine attack cases can, in some instances, still attach to the defendants regardless of whether they are owners or keepers of the dog.

I

Strict Liability, General Statutes § 22–357 4 (Count Two)

The question of whether a defendant properly qualifies as an owner or a keeper is fundamentally one of control.  “Under General Statutes § 22–327(6), a keeper is defined as ‘any person, other than the owner, harboring or having in his possession any dog ․’ To harbor a dog is to afford lodging, shelter or refuge to it.”  (Internal quotation marks omitted.)  Auster v. Norwalk United Methodist Church, 286 Conn. 152, 160, 943 A.2d 391 (2008).   That is, the question of whether a nonowner qualifies as a “keeper” (or “harborer”) is to ask whether the defendant “exercise[d] control over the dog in a manner which would ordinarily be exerted by the owner.”  (Internal quotation marks omitted.)  Id., 161.   If the control must be in a manner like that “normally exerted by the owner” it means such control must come from active association with the dog, and a landlord cannot be deemed to have controlled the dog simply by it living on the premises.   Indeed, the nature of the landlord-tenant relationship is not of great importance in determining whether a party is liable as an owner or keeper of the dog.   As our Supreme Court has stated:  “[W]e do not focus on the relationship of landlord and tenant in determining whether the landlord is a keeper of the tenant's dog;  rather, we look to the nature and extent of the control that the landlord had over the tenant's dog.   Prior cases of this court and the Appellate Court stand for the proposition that ownership of the premises where a dog lives, unaccompanied by any evidence of caretaking of the dog or actual control over its actions ․ is not enough to hold a landlord or other property owner strictly liable for damage caused by the dog.   This is true whether the dog's owner is a live-in employee, a tenant or merely a friend of the landlord.”  (Citation omitted;  internal quotation marks omitted).  Id., 163–64.

The defendants are in almost complete agreement of the relevant facts, as evidenced by their statements in their deposition testimony, attested to in their affidavits, and statements made to the insurance adjuster.   Sometime in the fall of 2008, the defendant Caroline Hincks returned home from college and moved into the second floor of the home of the defendants Andrew and Mary Hincks on 414 East River Road in Riverton, where she had previously resided before college.   The defendants assert that the second floor was an upstairs apartment with its own entrance.   It had originally been an upstairs apartment.   Before Caroline Hincks went to college the house was converted into a single family home.   After Caroline Hincks left for college, the second floor was converted back to an “in-law apartment.”   The defendants admit that there was no written lease between the parties, and that Caroline Hincks paid between $300 and $350 per month in cash.

Sometime prior to the time when Caroline Hincks moved to the 414 East River Road apartment, she was warned by Andrew and Mary Hincks that animals would not be permitted on the premises.   Nevertheless, she defied her parents' wishes and acquired Stella on May 14, 2009 from the Burlington dog pound.   Stella was pregnant at the time, and gave birth to puppies a few days later.

The defendants assert that Stella had puppies while hidden at the dwelling of a friend of Caroline Hincks.   A few days later Caroline Hincks brought the dogs to the second floor apartment of the East River Road residence without her parents' knowledge.   Thereafter, Caroline Hincks would transport the puppies and Stella wherever she went to avoid discovery.   It went on in this way for “about a month” before Andrew and Mary Hincks discovered Stella when Caroline Hincks was transporting the puppies from her car into the house.

Upon the discovery of the dog, Andrew and Mary Hincks were upset at their daughter's defiance and told her that she either had to move out or the dogs would have to be relocated.   Caroline Hincks elected to find a new residence, which she did according to Andrew Hincks' deposition testimony “about a week before the incident took place.”   Andrew and Mary Hincks maintain that they never fed or watered the dog.

On July 18, 2009, the Hincks were outside on their front porch eating lunch and playing with the dog.⁵  Caroline Hincks released the dog from its lead and allowed it to roam free.   Some or all of the defendants were playing with the dog.   At such time, the plaintiff Thomas Skarupa rode past the house on his bicycle.   The dog gave chase, and the plaintiff frantically pedaled away.   The plaintiff lost control of his bicycle and struck his head on a rock, suffering injuries.   A few days after the incident, the dog was euthanized.

The court is mindful of the fact that “[i]n ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Although the evidence submitted by the plaintiff is somewhat meager, given the strict summary judgment standard, when viewed in a light most favorable to the plaintiff, it is sufficient to create a genuine issue of material fact as to the amount of control Andrew and Mary Hincks exerted over Stella.   Cf. Auster v. Norwalk United Methodist Church, supra, 286 Conn. 154 (ruling that jury verdict based on insufficient evidence of control when no evidence that defendant exerted control over the dog in the manner of an owner.);   Sheehan v. Sheehan, Superior Court, judicial district of New London, Docket No. CV 10 5014034 (June 24, 2011, Martin, J.) (52 Conn. L. Rptr. 146) (denying summary judgment when dog owned by defendant's friend bit plaintiff while at home of defendant even when defendant's friend unequivocally stated it was his dog).   Andrew Hincks' knowledge of the dog's history and temperament is similar enough to that which a “harborer” would tend to have, rather than one who kept the dog at purely arm's length.⁶  Additionally, as mentioned, Andrew Hincks referred to the dog in a manner which suggested he had more than a distant association with it, referring to it as “our” dog.   Since control is the fundamental test for determining whether one is a keeper, there is a genuine issue of material fact as to the degree of control over the dog exercised by Andrew and Mary Hincks which precludes entry of summary judgment on the strict liability count.

II

Common–Law Negligence (Count One)

Andrew and Mary Hincks maintain that they are entitled to summary judgment as to the plaintiff's negligence claim because the evidence establishes that they did not have prior knowledge of the dog's tendency to be vicious.   The plaintiff states that there is an issue of material fact with respect to Andrew and Mary Hincks' knowledge of the dog's vicious propensities because Andrew Hincks referred to the dog's “frenetic play” and also said this characteristic is Stella's “biggest shortcoming” and “part of the problem.”   The plaintiff also points out that his negligence claim is premised not only on Andrew and Mary Hincks' knowledge of the vicious propensity of the dog, but also on specific acts of negligence performed by them on July 18.   Specifically, the plaintiff claims that they let the dog loose outside when it was foreseeable that she might chase pedestrians thereby causing them to become injured, and they failed to control the dog and keep her from pursuing the fleeing plaintiff.   According to statements by Caroline and Andrew Hincks, the entire Hincks family was present the Saturday of the incident when Stella was let off her leash.

Prior to Auster, in an animal attack case, as in strict liability claims brought pursuant to § 22–357, in order to be held liable under a common-law negligence theory, the defendant must be proven to be an owner or keeper.   See, e.g., Stokes v. Lyddy, 75 Conn.App. 252, 265–66, 815 A.2d 253 (2003) (“At common law, only an owner or keeper of a domestic animal owed a duty of reasonable care to others ․ Simply stated, to be liable, one must have control of the animal.   Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence ․ It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences ․ Our dog bite statute, § 22–357, which has been a law in Connecticut since 1798, flows directly from Connecticut common-law ․”).  Indeed, this explains why both parties felt compelled to brief and argue the issue of whether Andrew and Mary Hincks were keepers as to both the common law negligence and strict liability claims.   In Auster, our Supreme Court remanded the question of liability based on common law negligence after holding that the defendants could not properly be deemed owners or keepers for purposes of establishing strict liability under § 22–357, Auster v. Norwalk United Methodist Church, supra, 286 Conn. 164–65.  (“[T]he plaintiff failed to establish that the defendant was a keeper of the dog.   This is not to say, of course, that the defendant may not have been negligent in failing to take reasonable precautions to protect against the attack that occurred in the present case ․ We conclude only that the evidence was insufficient to hold the defendant strictly liable to the plaintiff as a keeper of the dog under § 22–357.”)   This departure from the traditional view of liability under the common law in animal attack cases was recently acknowledged by the Appellate Court.   See Giacalone v. Housing Authority of Wallingford, 122 Conn.App. 120, 125–26, 998 A.2d 222 (2010) (“We recognize that the [trial] court here was faced with years of common law in which such a cause of action properly could not be maintained, and, on this basis, it [the trial court] read Auster very narrowly.   We are aware of no Connecticut appellate case law prior to Auster that recognized a cause of action against a landlord in such a circumstance.   We conclude, however, that our Supreme Court opened the door in Auster and that it did not set forth such a narrow ruling.”).⁷  Therefore, after Auster, we are left with a rule that states that landlords have a duty to protect others from vicious dogs not only when they are an owner or a keeper, but there are also other factors which may create a duty.⁸

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)   Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.”  (Citations omitted;  internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).

Neither side has presented evidence as to the foreseeability of harm to the plaintiff in the specific circumstances at issue.   Thus, the court cannot rule that the Hincks' were not negligent in letting an admittedly “playful” and excitable dog roam free, and failing to stop or prevent its advances on the plaintiff.   Since this court must view the facts in the light most favorable to the nonmovant, such a proclamation would be akin to stating that keepers of over-exuberant dogs could never be liable for injuries to passers-by.   Because of the presence of disputed issues of material fact as to the foreseeability of the harm, Andrew and Mary Hincks have not met their burden of establishing that they are entitled to summary judgment on the common law negligence count.

III

Public Nuisance (Count Five)

As to count five, Andrew and Mary Hincks argue that the public nuisance claim fails as a matter of law and they are entitled to summary judgment because there is no evidence that they had knowledge of a dangerous condition on their land at the inception of the lease with Caroline, a required element of such a claim.   The plaintiff counters that whether there is a bona fide landlord-tenant relationship is disputed and thus the rule that the landlord must have known of the dangerous condition at the time of the commencement of the lease may not be applicable.   Regardless of the relationship of the defendants, the plaintiff argues, “the Defendants actively engaged in causing, participating, and condoning the dangerous activity—the unleashing of an aggressive pit-bull ⁹ —that created the nuisance complained of here.”   In connection with this claim, the plaintiff makes clear that he is proceeding against the defendants not only on the theory that their liability is based on their status as landlords to a tenant harboring a vicious animal, but also on the theory that Andrew and Mary Hincks actively contributed to the harm to the plaintiff by either unleashing or failing to control the dog.

Regardless of the existence, nature, or characteristics of a landlord-tenant relationship between the defendants, the plaintiff cannot succeed in this action on a public nuisance theory.   In order to prove a claim for public nuisance, a plaintiff must show “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created was a continuing one;  (3) the use of the land was unreasonable or unlawful;  [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages.”  (Internal quotation marks omitted.)   Sinotte v. Waterbury, 121 Conn.App. 420, 995 A.2d 131 (2010).  “Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ․ [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ․ The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.   A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.”  (Internal quotation marks omitted.)  Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).

Rampaging dogs can qualify as a public nuisance if the elements of such a claim are proven.  “It appears that our case law does not necessarily require that a nuisance-related injury be caused by the land itself especially where a public nuisance is alleged.   Instead, it is the use of land in the interference of a public right that distinguishes a public nuisance.   Although decided on different grounds, for example, our Supreme Court has held that the premature release of a roaming dog by a municipal dog warden was a sufficient allegation to withstand a demurrer for a count based on nuisance.  Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975).   Therefore, in the instance of a roaming dog, it appears that the injury need not arise from the land itself or improvements thereon, which seem often the case in claims involving nuisance.   In Wright, the court found ‘that the dog warden and the town allowed the dog to roam freely, which gave rise to a condition the natural tendency of which was to create danger.’  “ Nucci v. Harding, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 08 5005416 (April 2, 2009, Taylor, J.) (47 Conn. L. Rptr. 512).

A determination of whether a danger is “continuing” is highly fact-specific and dependent on the nature of the danger.   The more inherently dangerous an activity is, the more likely courts are willing to view it as “continuing” even if present for a short period of time.   Compare Gipstein v. Kirschenbaum, 118 Conn. 681, 683–84, 174 A. 261 (1934) (upholding the rejection of absolute nuisance claim because “there was no evidence as to how long a slippery stair mat [claimed to constitute a nuisance] had been in that condition before plaintiff slipped and fell on it”);  and Stoto v. Waterbury, 119 Conn. 14, 15, 174 A.189 (1934) (reversing trial court's dismissal of nuisance claim based in part upon finding that an open areaway along passage between two buildings into which plaintiff fell when walking through passageway at night had existed for two days before plaintiff fell into it over vigorous dissent in which dissenting justice argued that two days was not enough time for condition of danger to “ripen into” a nuisance) with DeMare v. Guerin, 125 Conn. 362, 365, 5 A.2d 711 (1939) (observing that in certain circumstances operation of motor vehicle upon public highway might constitute such an intrinsically dangerous activity as to constitute a nuisance whenever, and for whatever period of time, defendant engaged in it), and Zatkin v. Katz, 126 Conn. 445, 11 A.2d 843 (1940), (upholding trial court's decision to set aside jury verdict because improper jury instructions had prevented plaintiff from establishing his claim of nuisance based upon overloading a truck to the point that its operation upon public highway, for any time at all, had become inherently dangerous.)

Although lack of repeated conduct can be overcome by the inherent dangerousness of the activity (in this case, an allegedly ill-tempered and ferocious dog), there is no evidence that suggests that Stella was so dangerous to excuse this requirement.   In Wright, the dog had just attacked a person, while in the present case there has been no evidence produced by either side suggesting that Stella was at all violent, only playful.   To be sure, playful dogs may well be capable of creating a danger which may give rise to a duty, which is why the negligence claim withstands summary judgment.   But coltish Stella is sharply distinct from the dog in Wright.   As such, Stella's mischief does not rise to the level of dangerousness to justify the short time period of the activity which gave rise to this incident as “continuing.”   Further, since the incident occurred the only time there is evidence that Stella was freed, any danger could not be properly deemed “continuing.”   The evidence shows that Stella was let off her dog lead on this one occasion, but was not free to meander or roam about the neighborhood.   Despite, not being restrained, Stella remained in the custody of the Hincks family.   In contrast, in Wright, the dog who had been detained for attacking another person, was set free by the dog warden to wander with no apparent destination.   While it is true that if there is evidence that a dog is inherently vicious, the gravity of the danger may support a public nuisance claim, there has been no such evidence in this case.   See, e.g., DeMare v. Guerin, supra, 125 Conn. 365.   Accordingly, this claim cannot be sustained.

CONCLUSION

For all the foregoing reasons, the defendants' motion for summary judgment is denied as to counts one and three and granted as to count five.

Peck, J.

FOOTNOTES

FN1. Filed March 31, 2010..  FN1. Filed March 31, 2010.

FN2. This motion is brought by Andrew and Mary Hincks alone.   Since the defendants are in agreement of the facts, however, they will at times be referred to as the “defendants” in this memorandum..  FN2. This motion is brought by Andrew and Mary Hincks alone.   Since the defendants are in agreement of the facts, however, they will at times be referred to as the “defendants” in this memorandum.

FN3. In their August 19 memorandum, the defendants note that their statement to the insurance adjuster was “unsigned.”   The plaintiff responded on August 26 noting that the transcripts containing the statements were supplied through discovery by counsel for the defendants, and in any event, the statements are admissible..  FN3. In their August 19 memorandum, the defendants note that their statement to the insurance adjuster was “unsigned.”   The plaintiff responded on August 26 noting that the transcripts containing the statements were supplied through discovery by counsel for the defendants, and in any event, the statements are admissible.

FN4. General Statutes § 22–357 provides, in relevant part:  “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.”.  FN4. General Statutes § 22–357 provides, in relevant part:  “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.”

FN5. This is according to statements made by Andrew and Caroline Hincks to the insurance adjuster, and confirmed in their deposition testimony.   No evidence was submitted giving Mary Hincks' account of the incident..  FN5. This is according to statements made by Andrew and Caroline Hincks to the insurance adjuster, and confirmed in their deposition testimony.   No evidence was submitted giving Mary Hincks' account of the incident.

FN6. The plaintiff argues that Andrew Hincks' statement to the insurance adjuster that “Well, we put the dog down, and it was a very hard decision, but it was a consequence of my daughter not honoring our request to get a dog ․” strongly suggests that he and Mary may well have provided the impetus for, or were to some extent involved in, the decision to euthanize Stella and arguably creates an issue of fact as to the amount of control he exercised over the dog at least after the fact.   Standing alone, however, this fact is irrelevant as not only must the landlord-defendant have exercised dominion and control over the dog in a general sense in order to be liable under the statute, he must have been doing so at the time of the attack.   See Auster v. Norwalk United Methodist Church, supra, 286 Conn. 161–62 (“[A] nonowner of a dog cannot be held strictly liable for damage done by dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done ․”) (Emphasis added.).  FN6. The plaintiff argues that Andrew Hincks' statement to the insurance adjuster that “Well, we put the dog down, and it was a very hard decision, but it was a consequence of my daughter not honoring our request to get a dog ․” strongly suggests that he and Mary may well have provided the impetus for, or were to some extent involved in, the decision to euthanize Stella and arguably creates an issue of fact as to the amount of control he exercised over the dog at least after the fact.   Standing alone, however, this fact is irrelevant as not only must the landlord-defendant have exercised dominion and control over the dog in a general sense in order to be liable under the statute, he must have been doing so at the time of the attack.   See Auster v. Norwalk United Methodist Church, supra, 286 Conn. 161–62 (“[A] nonowner of a dog cannot be held strictly liable for damage done by dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done ․”) (Emphasis added.)

FN7. The Supreme Court has granted review of the Giacalone decision as to the following question:  “Did the Appellate Court properly determine that, pursuant to Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), the defendant could be held liable as a result of a dog bite from a dog that was owned and kept by a tenant of the landlord?” but has not yet decided the case.  Giacalone v. Housing Authority of Wallingford, 298 Conn. 906, 3 A.3d 69 (2010).   That case has yet to be heard by the Supreme Court..  FN7. The Supreme Court has granted review of the Giacalone decision as to the following question:  “Did the Appellate Court properly determine that, pursuant to Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), the defendant could be held liable as a result of a dog bite from a dog that was owned and kept by a tenant of the landlord?” but has not yet decided the case.  Giacalone v. Housing Authority of Wallingford, 298 Conn. 906, 3 A.3d 69 (2010).   That case has yet to be heard by the Supreme Court.

FN8. Since the court concluded earlier in this memorandum in its discussion of the § 22–357 claim, that there is a genuine issue of material fact as to whether Andrew and Mary Hincks were owners or keepers, a discussion of that issue is not repeated in connection with the common-law negligence claim..  FN8. Since the court concluded earlier in this memorandum in its discussion of the § 22–357 claim, that there is a genuine issue of material fact as to whether Andrew and Mary Hincks were owners or keepers, a discussion of that issue is not repeated in connection with the common-law negligence claim.

FN9. The parties dispute if the dog was in fact a pit bull.   In addition, the plaintiff has presented no evidence that the dog was “vicious” as that term is commonly understood..  FN9. The parties dispute if the dog was in fact a pit bull.   In addition, the plaintiff has presented no evidence that the dog was “vicious” as that term is commonly understood.

Peck, A. Susan, J.