Hilda Monginho v. Paula Valle et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 112

SUMMARY OF FACTS AND PLEADINGS

The plaintiff, Hilda Monginho, initiated this lawsuit by service of process on April 12, 2012, against the defendants, Paula Valle and Menu Ephie.   In her complaint, the plaintiff alleges that on January 18, 2011, defendant Valle was the owner or keeper of a dog that she kept at her residence located on the first floor of 43 Clinton Avenue in Bridgeport, which was owned by defendant Ephie.   The plaintiff lived on the second floor.   According to the complaint, while the plaintiff was walking down the stairs from her apartment that day, she was attacked by Valle's dog, a pit bull, causing severe injuries.

The plaintiff's complaint alleges three counts:  count one, violation of General Statutes § 22–357, Connecticut's dog bite statute, against Valle;  count two, negligence/premises liability against Ephie;  and count three, violation of the dog bite statute against Ephie.   On December 21, 2012, Ephie (defendant) moved for summary judgment as to counts two and three.   The motion was accompanied by a memorandum of law and her affidavit.   On August 16, 2013, the plaintiff filed an objection and memorandum of law in support of that objection, along with multiple exhibits, including an affidavit by a canine expert opining, inter alia, that pit bulls are inherently dangerous canines.   The defendant filed a reply to that objection on August 29, 2013, along with additional exhibits.   The motion was heard at short calendar on October 1, 2013.

I. LEGAL STANDARD

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

II. COUNT TWO

The defendant argues that the court should grant summary judgment on count two of the complaint on the ground that she had no knowledge of the dog's alleged ferocity or mischievous propensity prior to the dog's attack on the plaintiff, and therefore she had no duty to take steps to prevent the harm brought upon the plaintiff.   The plaintiff responds that, despite having a duty to do so, the defendant failed to take reasonable precautions to warn tenants of the dog's dangerous propensities or protect them from the risk of harm posed by the dog.   The plaintiff argues that the defendant should have known of the risk posed by the dog because of an incident where the defendant met the dog and was scared, and because pit bulls are inherently dangerous.   In her reply brief, the defendant reiterates that she had no knowledge of any dangerous propensities, and asserts that the plaintiff has presented no facts to put that issue in dispute.

“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 [breached] that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ․ [T]he test for the existence of a duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for [her] negligent conduct should extend to the particular consequences or particular plaintiff in the case.”   (Citations omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 538–40, 51 A.3d 367 (2012).   Thus, “[a] simple conclusion that the harm to the plaintiff was foreseeable ․ cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593–94, 945 A.2d 388 (2008).

Previously, “under Connecticut common law, knowledge of a domestic animal's vicious propensity impose[d] a duty on the owner to restrain that animal, and failure to do so [was] treated as negligence, triggering liability for damage caused by the animal.”  Giacalone v. Housing Authority, 306 Conn. 399, 405, 51 A.3d 352 (2012).  “This common-law rule has been modified substantially as it pertains to dogs.   Specifically, General Statutes § 22–357 imposes strict liability on the owner or keeper of a dog for harm caused by the dog, with limited exceptions.  [The] principal purpose and effect [of § 22–357] was to abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper became no longer dependent upon his knowledge of the dog's ferocity or mischievous propensity;  literally construed the statute would impose an obligation on him to pay for any and all damage the dog may do of its own volition.”  (Footnote omitted;  internal quotation marks omitted.)  Id. “The common-law duty to restrain—and its replacement with a strict liability rule with respect to dogs—does not, however, exhaust the range of common-law theories of liability applicable to animal bites.”  Id., 405–06.

“As a matter of well settled common law, [i]t is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control ․ The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe ․ The prevailing common-law conception of the dangerous conditions implicated in this duty, moreover, certainly is capacious enough readily to encompass threats from animals, including known vicious dogs ․ [A] landlord, in exercising the ․ duty to alleviate dangerous conditions in areas of a premises over which it retains control, must take reasonable steps to alleviate the dangerous condition created by the presence of a dog with known vicious tendencies in the common areas of the property.”  (Citations omitted;  internal quotation marks omitted.)  Giacalone v. Housing Authority, supra, 306 Conn. 407–08.  “What defines the landlord's duty is the obligation to take reasonable measures to ensure that the space over which it exercises dominion is safe from dangers, and a landlord may incur liability by failing to do so.”  (Emphasis in original.)  Id., 408.

In this case, the dispositive issue with respect to count two is whether the defendant had a duty to take steps to protect the plaintiff from Valle's dog.   In Giacalone v. Housing Authority, supra, 306 Conn. 409, the court held that “the traditional common-law duty of landlords to keep common areas in a reasonably safe condition applies to dangers posed by known dangerous dogs ․” (Emphasis added.)  Id., 409.   Thus, it is now settled law that the landlord may be held liable for the actions of a tenant's dangerous dog under a premises liability theory, but only if the landlord knew of the dog's dangerous propensities.

There is no real dispute that the subject incident occurred in a common area, subject to the landlord's control.   The only issue is whether the defendant had actual or constructive knowledge of the dog's vicious or dangerous propensities based on her interactions with the animal.   The defendant testified at her deposition that, on one particular occasion, she was standing outside talking to Valle when the following occurred:  “[Valle] opened the door a little bit, like that, and I was talking to her ․ [A]fter paying her rent, then, all of a sudden, the dog—I can't remember whether it's on the leash or not, but I know the dog came outside, and of course, being the fact that I'm always scared of dogs, I just said, ‘Take your dog away from me.’   The dog just came close to me, so, I'm scared and just scream, ‘Please take your dog away from me;  you know, I'm scared of dogs.’   That was it.”   Deposition of Menu Ephie, p. 20.   Valle characterized the incident as one in which the dog jumped on the defendant and put his nails on her thighs, wanting to smell her.   Deposition of Paula Valle, pp. 32–33.   There is some reference in the evidence to other occasions on which the defendant may have seen Valle's dog, but there is no indication of any other meaningful interactions.

In Basney v. Klema, 2 Conn.Cir.Ct. 538, 544, 203 A.2d 95 (App.Sess.1964), the court stated:  “What constitutes viciousness is often a puzzling question, to be resolved by the facts of a particular case.”   Quoting Iowan authority, the court further noted:  “Most of the cases are where there was an attack of some kind by worrying or biting, or the appearance of a ferocious attack, and we assume it is for that reason that the definitions for ‘vicious,’ or ‘vicious animal,’ are not plentiful.   One naturally gets the idea that there is an element of savagery, or fierceness, ferociousness, or mischievousness ․ [A] vicious propensity is not confined to a disposition on the part of a dog to attack every person he might meet, but includes as well a natural fierceness or disposition for mischievousness, as might occasionally lead him to attack human beings without provocation.   Dogs, like humans, are unpredictable.   Either, for no apparent reason, may suddenly go berserk.”  (Internal quotation marks omitted.)  Id., 545.

In Basney, the plaintiff was a professional dog groomer who had been bitten in the course of grooming the defendants' dog, a cocker spaniel.  Basney v. Kiema, supra, 2 Conn.Cir.Ct. 540.   In that case, “[t]he only evidence of scienter ․ was that one of the [defendant dog owners] said that he had been unable to brush or comb the dog at home because the dog snapped and was touchy about it.”  Id., 545.   In reversing the judgment of the trial court rendering judgment for the plaintiff, the court in Basney held that “[t]he mere fact that a dog has snapped, without other proof of a vicious disposition cannot sustain the conclusion that the dog was vicious.”  Id.

Other than Basney, very few Connecticut courts have explored the issue of whether certain limited interactions with an allegedly dangerous or ferocious animal gives rise to an inference of dangerousness or ferocity.   Other jurisdictions, however, have precluded liability on the part of landlords who were only aware of fairly typical and innocuous canine behavior.   See, e.g., Plowman v. Pratt, 268 Neb. 466, 470–71, 684 N.W.2d 28 (2004) (applying actual knowledge standard, court held normal canine behavior, such as barking at stranger, to be insufficient basis for inference that landlord has actual knowledge of dog's dangerous propensities);  Yuzon v. Collins, 116 Cal.App.4th 149, 164–66, 10 Cal.Rptr.3d 18 (2004) (landlord had no actual knowledge of dangerous propensities of tenants' dog, where dog merely engaged in normal canine behaviors such as jumping against door and barking at neighbors);  Baker v. Weather ex rel. Weather, 714 N.E.2d 740, 742–43 (Ind.Ct.App.1999) (landlords' knowledge of prior escapes from leased premises by tenants' dogs did not constitute requisite actual knowledge of dangerous or vicious propensities);  Gill v. Welch, 136 App.Div.2d 940, 940, 524 N.Y.S.2d 692 (1998) (proof establishing that dog was kept enclosed in yard or chained, and that dog strained on its chain and barked when people approached premises, not sufficient to create inference that dog was vicious).

In the present case, the court concludes that there is no genuine issue of material fact as to whether the defendant had knowledge of the dog's dangerous propensities.   Although both defendants testified regarding the dog's behavior toward Ephie, the defendant landlord, there is no evidence that Ephie was aware of any act that could reasonably be construed as vicious.   The mere fact that Valle's dog excitedly jumped on the defendant and tried to sniff her is insufficient to give rise to a reasonable inference of the dog's dangerous or vicious propensities.   Ephie also testified that she reacted to the dog based on her preexisting subjective fear of dogs indicating that she did not want the dog to be around her.   The defendant may have had a subjective fear of dogs at the time of the interaction, but the crucial question is whether the actions of the dog would have communicated the dog's dangerous propensities to a reasonable person.   See Baker v. Weather ex rel. Weather, supra, 714 N.E.2d 742 (“It is the act of the animal ․ from which the effects of a dangerous propensity must be determined ․ [I]t is not reasonable to attribute dangerous or vicious propensities to a dog merely because he barks at strangers [or] because a person is afraid of the dog ․” [Citations omitted;  internal quotation marks omitted] ).

The plaintiff also argues that, based on an expert affidavit submitted with her objection, pit bulls are inherently dangerous dogs.   Essentially, she is asserting that the defendant had constructive knowledge of the dog's dangerous propensities merely because the defendant knew the dog's breed.   But even if the court agrees with the plaintiff's expert that the dangerousness of pit bulls is common knowledge, and thus the incident was foreseeable, the court still must make a public policy determination as to whether the defendant's responsibility should extend to such a result.  Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 563, 593–94.

Our Supreme Court has articulated four specific factors “to be considered in determining the extent of a legal duty as a matter of public policy:  (1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.”  Murillo v. Seymour Ambulance Ass'n, Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003).

Applying the first factor, the court notes that use of the term “pit bull” presents a vagueness problem because that term does not refer to a particular breed of dog, but may include several different breeds, or some combination thereof.   See American Dog Owners Association, Inc. v. City of Lynn, 404 Mass. 73, 75–80, 533 N.E.2d 642 (1989);  3B C.J.S. Animals § 18 (2013);  80 A.L.R.4th 70 (1990).   If it were adopted as a rule that all “pit bulls” are dangerous, the rule would run the risk of being too vague, given the difficulty of determining the breed of a particular dog and the imprecise definition of a “pit bull.”   There is no evidence of a uniform and workable definition, so it would be difficult to formulate a rule based on the “normal expectations” of those that the law would affect.   See generally Kensington Square II Ltd. Partnership v. Perez, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH–9508 44105 (October 17, 1995, Jones, J.) (15 Conn. L. Rptr. 384).   Additionally, the creation of such a rule could have privacy implications on tenants, as it could force landlords to be more intrusive in monitoring tenants' activities than before the institution of the rule.

As to the second factor, weighing the public policy of encouraging participation in the activity against relevant safety concerns, the Appellate Court observed in Stokes v. Lyddy, 75 Conn.App. 252, 271–72, 815 A.2d 263 (2003), that “[d]ogs are used for companionship and to protect property and person ․ [T]here may be tenants whose interests in keeping a guard dog for protection of person or property are based on the character of the neighborhood in which the leased premises are located or by virtue of the peculiar circumstances of the individual tenant.   Those are legitimate reasons for keeping dogs.”   Hence, there are good reasons to keep dogs as pets, and good reasons to keep pit bulls in particular as pets, namely, to use them as guard dogs.   A blanket rule that all pit bulls are per se dangerous or aggressive would hinder tenants' ability to keep them as pets for companionship or as guard dogs, as landlords would be wary of allowing such pets given the potential liabilities.

The third factor is the likelihood of increased litigation as a result of imposition of strict liability.   In a concurring opinion in Giacalone, Justice Zarella applied the third factor as follows:  “The third factor requires consideration of whether the proposed duty would result in increased litigation.   Making landlords subject to liability for injuries caused by their tenants' dogs undoubtedly would provide new grounds for litigation.   On the other hand, the potential for litigation would cause landlords to be more vigilant and diligent in enforcing rules requiring permission to keep dogs on the premises, which would have the effect of removing dangerous and aggressive dogs.   Accordingly, imposing liability on landlords might result in reduced litigation under the strict liability statute.   These countervailing considerations suggest that the overall increase in litigation very likely would be small.”  Giacalone v. Housing Authority, supra, 306 Conn. 423–24.   This court concludes that although the Supreme Court considered the issue of whether imposing strict liability on landlords in the Giacalone case, it is not necessary for the decision on the motion for summary judgment in this case.

Finally, looking to other jurisdictions, applying the fourth factor, it appears that jurisdictions are split on the issue of whether to recognize, at least as a matter of common law, that pit bulls are inherently dangerous.   Compare, e.g., Morgan v. Marquis, 50 A.3d 1, 4 (Me.2012) (“the law does not recognize that pit bulls are per se abnormally dangerous to the class of domestic dogs”) and Rivers v. Housing Authority, 264 A.D.2d 342, 342, 694 N.Y.S.2d 57 (1999) (“[T]he court erred in taking judicial notice of the vicious nature of pit bulls ․ In order to be held liable for injuries sustained as a result of an attack by a tenant's dog, it must be demonstrated that the animal had vicious propensities and that the landlord knew or should have known of these propensities” [Citation omitted] ) with Tucker v. Duke, 873 N.E.2d 664, 669 (Ind.Ct.App.2007), transfer denied, 891 N.E.2d 42 (2008) (trier of fact may infer that knowledge of dog's dangerous propensities where “evidence shows that the particular breed to which the ․ dog belongs is known to exhibit such tendencies”) and Matthews v. Amberwood Associates Ltd. Partnership, Inc., 351 Md. 544, 563, 719 A.2d 119 (1998) (“[T]he foreseeability of harm in the present case was clear.   The extreme dangerousness of [pit bulls], as it has evolved today, is well recognized”).   The court finds the reasoning of the jurisdictions that have not found pit bulls inherently dangerous to be more persuasive, because they take into account multiple factors concerning the disposition of the dog in question, rather than drawing the conclusion that a dog is inherently dangerous solely on the basis of its breed.

Upon consideration of the relevant factors, the court finds that public policy does not support the creation of a legal duty on the part of landlords based on the premise that all “pit bulls” are per se dangerous or ferocious.   If such a blanket determination is to be made, it should be made by the legislature.   See Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 715, 802 A.2d 731 (2002) (“primary responsibility for formulating public policy resides in the legislature”);  Burnett ex rel. Burnett v. Clarke, Docket No. 309373, 2013 WL 1010062, *5 (Mich.Ct.App. March 14, 2013) (“While it may be true that pit bulls are inherently dangerous creatures, no Michigan court has imposed strict liability upon a landowner based on its regulations, and strict liability against a dog owner is imposed by statute ․ Thus, if Michigan [were] to impose a duty of strict liability on landowners to protect against a tenant's dog, the creation of such a duty would be for the Legislature, and not this Court.”  [Citation omitted] );  Nutt v. Florio, 75 Mass.App.Ct. 482, 486 n.6, 914 N.E.2d 963, cert. denied, 455 Mass. 1106, 918 N.E.2d 91 (2009) (“The plaintiff does not argue that we should pronounce a rule that pit bull terriers are inherently dangerous by virtue of their breed, thereby in effect creating a new cause of action by imposing strict liability upon owners of properties where they are kept.   We thus do not address such an argument, and in any event, the decision to create ‘a species-specific standard of care’ is likely one for the Legislature”);  Ferrara v. Marra, 823 A.2d 1134, 1137–38 (R.I.2003) (noting that while “some states and municipalities successfully regulate certain breeds of dogs such as pit bulls, [the Rhode Island] Legislature has not, as yet, chosen to create a species-specific standard of care”;  judge “properly declined the invitation [to impose strict liability upon pit bull owners] because the creation of a new cause of action should be left to the Legislature” [citations omitted] ).

It may be reasonable, in certain cases, to include the breed of a dog as one factor in the determination of a landlord's knowledge of a dog's dangerousness or ferociousness.   In this case, however, no reasonable jury could find that the defendant's observations and interactions with the dog, even coupled with the breed of the dog, would have communicated its dangerous propensities to a reasonable person standing in the defendant's shoes.

Accordingly, the motion for summary judgment is granted as to count two.

III. COUNT THREE

The defendant also argues that the court should grant summary judgment on count three of the complaint on the ground that she was not the owner or the keeper of the dog.   The court agrees.

“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 ․ [P]ossession [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession ․ One who treats a dog as living at his house and undertakes to control his actions is [a] ․ keeper ․” (Citations omitted;  internal quotation marks omitted.)  Auster v. Norwalk United Methodist Church, 286 Conn. 152, 160, 943 A.2d 391 (2008).  “[A] landlord is not the 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 its owner.”  Id., 162.

In this case, the defendant may have had a limited contractual authority that gave her the right to impose certain restrictions on the keeping of dogs on the premises, but that does not make her the keeper of the dog under the standard articulated in Auster.   Accordingly, the defendant's motion for summary judgment as to count three is granted.

CONCLUSION

For all of the aforementioned reasons, the defendant Ephie's motion for summary judgment as to counts two and three is granted in its entirety.

SOMMER, J.

Sommer, Mary E., J.