Kelly A. Curran v. Eva Day (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

In this dog bite case, the plaintiff alleges that the defendant is liable for the injuries the plaintiff sustained when she was bitten by a pit bull owned by a tenant of the defendant.   She asserts three theories of liability:  (1) strict liability as a “keeper” of the dog under General Statutes § 22–357;  (2) negligence;  and (3) recklessness.   The defendant has moved for summary judgment on all three counts.   For the reasons stated below, summary judgment is granted as to the strict liability claim under § 22–357 and denied as to the remaining counts.

The standard for summary judgment is well established.  “Practice Book § 17–49 provides that summary judgment ‘shall be rendered forthwith if the 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.’  “ Laflamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  (Citations omitted;  internal quotation marks omitted.).   Connell v. Colwell, 214 Conn. 242, 246–47, 571 A.2d 116 (1990).   Furthermore, on summary judgment all inferences from the facts must be construed in the light most favorable to the party opposing the motion.   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).

The plaintiff's first count seeks to impose strict liability under General Statutes § 22–357, which 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 the 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 Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), the Supreme Court addressed the applicability of § 22–357 to a premises owner that exercised only limited control over a dog owned by a tenant on the premises.   In that case, the court held that a defendant church was not the “keeper” of a dog that belonged to the church's sexton and was allowed to live on the church premises with the sexton's family.   Although the church, as owner of the premises, exercised some minimal control in requiring the dog to be kept inside the sexton's apartment during certain hours and to be tied up when left outside in common areas, the court concluded that the term “keeper” in § 22–357 could not be construed so broadly “as to include persons authorized to exercise only limited dominion and control over a dog.   Such persons include a landlord who, like the defendant in the present case, may impose some restrictions on the tenant's use and handling of the dog but who otherwise bears no responsibility for the care, maintenance or control of the dog.”  Auster v. Norwalk United Methodist Church, supra, 286 Conn. 163, 943 A.2 291.

In Auster, the court held that, to hold a defendant strictly liable as a “keeper” of a dog, a plaintiff would have to show that the nonowner keeper was actively involved in the care or control of the dog at the time the injury occurred.   More specifically, it held that a “nonowner of a dog cannot be held strictly liable for damage done by the 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.”  Auster, supra, 286 Conn. 162, 943 A.2d 391.   The Auster court continued:  “As we indicated in Falby [v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992) ], such proof will generally consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred.”   Auster, supra, 286 Conn. 162, 943 A.2d 391.  “Thus, a landlord is not a keeper of a dog for purposes of § 22–357 merely because the landlord acquiesces in the presence of the dog on leased premises, or because the landlord has the authority to require that the dog be removed from the premises in the event that it becomes a nuisance, or even because the landlord has the authority to require that certain conditions be placed on the use of the dog by the owner.”  Id.

In this case, it is undisputed that in April 2011, the defendant rented an apartment to a tenant who owned a pit bull named Kane. The tenant sometimes tied Kane up to a tree in the yard, using a short lead.   Because the tenant sometimes left Kane in the yard without water or shade in summer heat, the defendant expressed concern for Kane's well-being and offered to allow the tenant to fence in an area of the yard to contain the dog.   The defendant even offered the assistance of her boyfriend to build a fence or pen for Kane and may have offered to share the expenses of building such an enclosure.   There is no evidence that such an enclosure was ever built.   On May 10, 2011, Kane bit and broke the skin of a woman who was visiting the premises, and because his owner did not have his veterinary records, Kane had to be quarantined for fourteen days.   The defendant was aware of that incident.   On July 30, 2011, Kane bit the plaintiff and caused injury to her while she was on the defendant's premises visiting Kane's owner.

Even viewed in the light most favorable to the plaintiff, the undisputed facts would not allow a jury to conclude that the defendant was Kane's “keeper” so as to be subject to strict liability under the Supreme Court's construction of General Statutes § 22–357 in Auster.   Although there are disputed facts as to whether the defendant orally modified the lease to allow Kane to remain on the premises despite a “no pets” provision in the written lease or whether the defendant commenced eviction proceedings immediately to get rid of the tenant because he had Kane there without permission, those disputed facts are not material to a determination of whether the defendant was a “keeper” of Kane under the statute.   No facts presented by the plaintiff indicate that the defendant ever assumed control or dominion over Kane or provided food or shelter for him or exercised him.   At most, the evidence proffered in opposition to summary judgment on this count shows that the defendant allowed Kane to remain on the premises and expressed concern about Kane's welfare.   Thus, under Auster, the defendant has demonstrated the absence of any disputed issues of material fact as to whether she was an owner or keeper of Kane, and the plaintiff has failed to produce evidence showing that the defendant was responsible for caring for or controlling Kane when the plaintiff was bitten.   Accordingly, summary judgment is granted as the plaintiff's strict liability claim under § 22–357 in count one.

Although the facts in dispute are not material to the issue of whether the defendant was Kane's “keeper” and thus subject to strict liability, the disputed facts are material to the claims alleged in counts two and three.   In Giacalone v. Housing Authority of Wallingford, 306 Conn. 399, 51 A.3d 352 (2012), the Supreme Court held that a landlord may be liable for injuries caused by a tenant's dog under principles of premises liability.   A landlord has a duty “to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control.”  Id., 407.  “The prevailing common-law conception of the dangerous conditions implicated in this duty, moreover, is capacious enough readily to encompass threats from animals, including known vicious dogs.”  Id., 407–08.   There are disputed issues of material fact with respect to the common-law negligence and recklessness claims the plaintiff asserts in counts two and three, including whether the defendant acquiesced in Kane's presence on the property after he bit a visitor in May 2011, and before he bit the plaintiff in July 2011, and whether she took reasonably necessary actions to require the tenant to control Kane while he remained on the premises.   Accordingly, summary judgment is denied as to counts two and three.

November 8, 2013

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.