Cheri Ornberg v. Kim Butler (2014)

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (# 114 and # 118)

This decision is on cross motions for summary judgment in a dog bite case.   The plaintiff, Cheri Ornberg, moved (# 114.00) on June 5, 2013, for summary judgment against the defendant, Kimberlee Butler–Fusco (named Kim Butler in the complaint), the owner of the dog in question, on the first count of her complaint.¹  Count one seeks damages under General Statutes § 22–357, sometimes called the dog bite statute.   The defendant, on the same, sole ground—that the plaintiff was the keeper of the dog—opposes the plaintiff's motion and moves (# 118.00) for summary judgment on the same count.   Briefs and deposition transcript excerpts were submitted for and against each motion.   The motions were argued on October 15, 2013.

FACTS

Summary judgment is appropriate only when it is the sole conclusion a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Summary judgment requires evidence which a jury would not be at liberty to discredit or ignore.  Id. The court views the evidence in the light most favorable to the nonmoving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013);  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).   In ruling on the present motion, 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).   Statements that are merely conclusions are not considered evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Viewing the evidence in this light, and because a fact tending to support one of the present motions inherently tends to undermine the other, the court finds there is no real dispute about the following facts pertinent to both of the present motions.

In July of 2010, the plaintiff was employed part-time by an animal hospital/kennel called VCA of New London, in Waterford, Connecticut (VCA) as an animal care helper.   Her duties included walking, feeding and giving water to animals at VCA.

The defendant was the owner of an approximately 70–pound, male Catahoula Coonhound named Roman.²  On July 2, 2010, the defendant took Roman to VCA to board him while she went on a week-long vacation.   She signed a paper about leaving the dog in VCA's care and turned the dog over to VCA with a blanket, a toy and his leash.   She did not meet the plaintiff.

A few minutes after 5:00 p.m. on Tuesday, July 6, 2010, the plaintiff, by herself, on the VCA premises, walked the dog for five to ten minutes.³  The plaintiff was not the only employee with responsibility for walking the dog.   A fellow employee might have walked Roman on that occasion:  any aspect of the dog's care which the plaintiff did not provide, another VCA employee would have provided.   The plaintiff did not groom the dog, administer medication, decide in what kennel the dog stayed, or decide when, what or how much the dog was fed.

The plaintiff returned Roman to his kennel, removed his breakfast bowl from the kennel and told him he was a good boy.   At that moment, Roman lunged at the plaintiff and injured her by biting her lip open.   The plaintiff was not trespassing, committing any tort, or teasing, tormenting or abusing the dog.⁴

DISCUSSION

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.”   Summary judgment is a method of resolving litigation when pleadings, affidavits, and other proper evidence 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.  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012);  Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 56.   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id.

Turning to the plaintiff's motion for summary judgment, it is implicitly a motion for summary judgment as to liability, since the plaintiff offers no evidence regarding damages,⁵ and will be so treated.

From the facts found above, the three statutory elements of a claim under § 22–357 ⁶ have been met.   See Malone v. Steinberg, 138 Conn. 718, 722, 89 A.2d 213 (1952) (three pertinent essentials to predecessor statute are damage by a dog to the plaintiff, the plaintiff was not committing tort or teasing, tormenting or abusing the dog, and defendant was dog's keeper or owner).   The dog, Roman, did damage to the plaintiff's body.   None of the statutory exceptions apply:  the plaintiff was neither committing a trespass or other tort nor teasing, tormenting or abusing the dog.   And the defendant was the dog's owner.

The sole defense to the plaintiff's motion and the sole basis for the defendant's cross motion is not that any of the above facts is untrue.   It is that the plaintiff was the dog's keeper at the time of the incident and that the Supreme Court has found the role or status of keeper of a dog to be an implicit, fourth exception to liability of an owner to “any person” injured by his dog under § 22–357.   See Auster v. Norwalk United Methodist Church, 286 Conn. 152, 163, 943 A.2d 391 (2008);  Murphy v. Buonato, 42 Conn.App. 239, 249–51, 679 A.2d 411 (1996), aff'd per curiam, 241 Conn. 319, 696 A.2d 320 (1997) (where there is both an owner and a keeper [statutorily not the owner] of a dog which injures the keeper, the keeper has no cause of action against the owner under § 22–357).⁷

The defendant's argument is inconsistent with her claim that, “at all relevant times ․ VCA maintained custody and control of ․ the dog.”   See Apportionment Complaint dated January 24, 2012, ¶ 4.   However, inconsistent pleading is permitted.  Vidiaki, LLC v. Just Breakfast & Things!!!, LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012).   Beyond determining whether evidence is sufficient to create a triable issue of material fact, the court does not weigh evidence in ruling on a motion for summary judgment.

A keeper of a dog for present purposes is defined by law as “any person, other than the owner, harboring or having in his possession any dog.”  General Statutes § 22–327(6).   In determining whether a person is a keeper of a dog, the focus is on “the nature and extent of the control that the [alleged keeper] had over the ․ dog.”  Auster v. Norwalk United Methodist Church, supra, 286 Conn. 163;  see Crenshaw v. Fleming, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV–08–6001719–S (September 18, 2009, Holden, J.) (48 Conn. L. Rptr. 550).   The nature and extent of the control over a dog for § 22–357 purposes has been the subject of numerous opinions.   Some degree of control over a dog is required for a person to be the dog's keeper.  Buturla v. St. Onge, 9 Conn.App. 495, 497, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987).   Control by the defendant of the premises where the dog inflicted injury is not enough.  Falby v. Zarembski, 221 Conn. 14, 19–20, 602 A.2d 1 (1992).   A person with only temporary control over a dog is not the dog's keeper.   See Prucinsky v. Evans, 47 Conn.Sup. 655, 659, 822 A.2d 390 [34 Conn. L. Rptr. 226] (2003) (one who walks a dog in a park lacks a keeper's possession or control).   It has been held that one who treats a dog as living at his house and undertakes to control his actions is a keeper of the dog.  McCarthy v. Daunis, 117 Conn. 307, 309, 167 A. 918 (1933).   That is also substantially the definition of a “harborer.”  Buturla v. St. Onge, supra, 9 Conn.App. 497;  Falby v. Zarembski, supra, 221 Conn. 19–20 (“harborer” includes one who provides shelter or refuge to a dog and has possession and control of the dog).   Clearly, the harboring or possessing of a dog for “keeper” status requires more than letting the subject dog out of his pen, walking him for five to ten minutes on kennel grounds and returning him to his pen, and otherwise, with other employees, following others' decisions regarding the dog's care, which is all the uncontroverted evidence shows the plaintiff did in this case.

Murphy v. Buonato, supra, 42 Conn.App. 242, held that whether or not a plaintiff is a dog's keeper for § 22–357 purposes is a question of fact.   Although the defendant's opposition to the plaintiff's motion is based on the claim that the evidence shows the plaintiff was the keeper of the defendant's dog, that claim implicitly includes the argument that there is a triable issue of fact as to whether the plaintiff was the dog's keeper.   If the latter were true, the court would have to deny the plaintiff's motion.   With all deference to the Appellate Court's holding in Murphy on the facts of that case, sometimes, and in this case, the question of whether the plaintiff was the keeper of a dog becomes a question of law in the sense that the court may determine that something is shown by evidence of such legal effect that a jury could not properly discredit or ignore it.   See Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 815.   Indeed, it seems reasonable to surmise that the Connecticut legislature, in enacting the predecessor of § 22–357 in 1798;  see Granniss v. Weber, supra, 107 Conn. 624–25;  meant to simplify claims against owners or—particularly where no owner is known—keepers of dogs for damage caused by dogs.   To deny the plaintiff's motion for summary judgment because the defendant asserts there is a triable issue of material fact as to whether the plaintiff was the keeper of the defendant's dog, let alone to grant the defendant's motion for summary judgment, would be to ignore established standards of who is a keeper, to leave to a jury that which this court finds is established to a directed verdict standard,⁸ and to thwart the purpose of § 22–357, establishing strict liability of dog owners for injuries caused by their dogs without regard to the owner's knowledge of any ferocity or mischievous propensity of the dog.  Granniss v. Weber, supra, 107 Conn. 625.

The plaintiff's motion for summary judgment as to the defendant's liability to her on the first count of the complaint, under § 22–357, is granted.   Trial on the first count will be a hearing in damages.   The defendant's motion for summary judgment is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The first count is for “violation” of General Statutes § 22–357.   “Violation” is a harmless mischaracterization. § 22–357 creates, with statutory limitations, strict liability for owners and keepers of dogs who cause injury, not a duty upon such owners or keepers.   Indeed, eliminating the requirement of proof of breach of a duty (knowledge of one's dog's ferocity or mischievousness) is an essential purpose of the statute.   See Granniss v. Weber, 107 Conn. 622, 625, 141 A.2d 877 (1928)..  FN1. The first count is for “violation” of General Statutes § 22–357.   “Violation” is a harmless mischaracterization. § 22–357 creates, with statutory limitations, strict liability for owners and keepers of dogs who cause injury, not a duty upon such owners or keepers.   Indeed, eliminating the requirement of proof of breach of a duty (knowledge of one's dog's ferocity or mischievousness) is an essential purpose of the statute.   See Granniss v. Weber, 107 Conn. 622, 625, 141 A.2d 877 (1928).

FN2. In the plaintiff's deposition, parts of the transcript of which were submitted by both parties, she and both counsel refer to the defendant's dog as “Romeo.”   The defendant does not claim that the plaintiff was referring to a dog other than Roman..  FN2. In the plaintiff's deposition, parts of the transcript of which were submitted by both parties, she and both counsel refer to the defendant's dog as “Romeo.”   The defendant does not claim that the plaintiff was referring to a dog other than Roman.

FN3. As a rule, determination of whether one is a keeper of a dog is a question of fact.  Murphy v. Buonato, 42 Conn.App. 239, 242, 679 A.2d 411 (1996), aff'd per curiam, 241 Conn. 319, 696 A.2d 320 (1997).   However, argument on that point can include conclusions of law.   The defendant's claim, as part of her claim that the plaintiff was the dog's keeper, that the plaintiff had sole possession of the dog is of this conclusory nature.   The court finds that the plaintiff walking the dog by herself, let alone on VCA's premises, does not constitute possession, let alone sole possession, of the dog by the plaintiff..  FN3. As a rule, determination of whether one is a keeper of a dog is a question of fact.  Murphy v. Buonato, 42 Conn.App. 239, 242, 679 A.2d 411 (1996), aff'd per curiam, 241 Conn. 319, 696 A.2d 320 (1997).   However, argument on that point can include conclusions of law.   The defendant's claim, as part of her claim that the plaintiff was the dog's keeper, that the plaintiff had sole possession of the dog is of this conclusory nature.   The court finds that the plaintiff walking the dog by herself, let alone on VCA's premises, does not constitute possession, let alone sole possession, of the dog by the plaintiff.

FN4. The plaintiff's attorney asked many leading questions in the plaintiff's deposition.   That is not a proper practice.   See Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 353, 710 A.2d 788 (1998).   However, few objections were made to such questions, presumably because the defendant admits the dog bit the plaintiff, injury resulted, the plaintiff was not trespassing or committing some other tort, and she was not teasing, tormenting or abusing the dog.   See judicial admissions in the defendant's Apportionment Complaint (# 105.00) dated January 24, 2012, ¶¶ 7 and 8..  FN4. The plaintiff's attorney asked many leading questions in the plaintiff's deposition.   That is not a proper practice.   See Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 353, 710 A.2d 788 (1998).   However, few objections were made to such questions, presumably because the defendant admits the dog bit the plaintiff, injury resulted, the plaintiff was not trespassing or committing some other tort, and she was not teasing, tormenting or abusing the dog.   See judicial admissions in the defendant's Apportionment Complaint (# 105.00) dated January 24, 2012, ¶¶ 7 and 8.

FN5. The interpretation of court filings is a question of law for the court.   See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings).   In this case the plaintiff's motion does not detail her injuries.   Those injuries are alleged in the complaint to be severe lacerations through her lip, in the corner of her mouth and on the left side of her chin, facial scarring, pain and suffering.   However, liability of the owner or keeper of a dog under § 22–357 is shown if the dog “does any damage to ․ the body ․ of any person ․ except when such damage has been occasioned to ․ a person who ․ was committing a trespass or other tort, or was teasing, tormenting or abusing such dog.”.  FN5. The interpretation of court filings is a question of law for the court.   See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings).   In this case the plaintiff's motion does not detail her injuries.   Those injuries are alleged in the complaint to be severe lacerations through her lip, in the corner of her mouth and on the left side of her chin, facial scarring, pain and suffering.   However, liability of the owner or keeper of a dog under § 22–357 is shown if the dog “does any damage to ․ the body ․ of any person ․ except when such damage has been occasioned to ․ a person who ․ was committing a trespass or other tort, or was teasing, tormenting or abusing such dog.”

FN6. § 22–357 in its entirety, reads as follows:  “Damage to person or property.   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, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was 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.”.  FN6. § 22–357 in its entirety, reads as follows:  “Damage to person or property.   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, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was 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.”

FN7. In light of Maccarone v. Hawley, 7 Conn.App. 19, 25, 507 A.2d 506 (1986), the holdings in Murphy and Auster produce a certain dissonance.  “Merely by shifting possession of his dog to a temporary keeper, the owner should not also be able to shift to that keeper his liability for injuries caused by his dog.   The fact that the Clinic had physical possession, and thus an arguably greater potential to control the dog, is not sufficient to shift the basis of legal liability to the keeper.   The liability of either owner or keeper under [§ 22–357] is imposed even if the keeper takes all reasonable measures to control the dog.   Thus, the keeper's degree of control, or lack of control, is irrelevant ․ When he puts his dog in the possession of someone else, the law should not impose on that keeper the obligation to indemnify the owner for injuries caused by his dog.   We reject the owner's argument that, because the statute imposes alternative liability between owner and keeper, the owner is entitled to indemnification from the keeper.”  Maccarone v. Hawley, supra, 7 Conn.App. 25–26.   As Maccarone noted, there is a “common law principle that, as between two innocent persons, namely the injured third party and the owner or keeper, the loss should fall on the one who caused it, rather than on the one who had no part in doing so.”   Id.;  see also Granniss v. Weber, supra, 107 Conn. 625.  Maccarone is discussed at length, with approbation, in Murphy v. Buonato, supra, 42 Conn.App. 242.   The Appellate Court's decision in Murphy was affirmed without elaboration or qualification by our Supreme Court in Murphy v. Buonato, supra, 241 Conn. 322.   The result is that a dog owner who gives temporary possession of his dog to a keeper remains liable for injury caused by the dog to any person while the dog is with the keeper;  see Maccarone, supra, 7 Conn.App. 26;  unless the dog turns on the keeper.   See Murphy v. Buonato, supra, 241 Conn. 319;  Auster v. Norwalk United Methodist Church, supra, 286 Conn. 163.   Then, essentially, the keeper indemnifies the owner.   On the one hand, the dog owner cannot avoid liability under § 22–357 to a third-party plaintiff no matter the “degree of control, or lack of control” of the dog's keeper.   On the other hand, despite strict interpretation of the statute;  Schonwald v. Tapp, 142 Conn. 719, 722, 118 A.2d 302 (1955);  if the keeper is injured by the dog, the keeper is not “any person” for purposes of a claim against the owner under the statute.   See Murphy v. Buonato, supra, 42 Conn.App. 253 (O'Connell, J., dissenting) (majority opinion adds to § 22–357 the requirement that the plaintiff not be the dog's keeper)..  FN7. In light of Maccarone v. Hawley, 7 Conn.App. 19, 25, 507 A.2d 506 (1986), the holdings in Murphy and Auster produce a certain dissonance.  “Merely by shifting possession of his dog to a temporary keeper, the owner should not also be able to shift to that keeper his liability for injuries caused by his dog.   The fact that the Clinic had physical possession, and thus an arguably greater potential to control the dog, is not sufficient to shift the basis of legal liability to the keeper.   The liability of either owner or keeper under [§ 22–357] is imposed even if the keeper takes all reasonable measures to control the dog.   Thus, the keeper's degree of control, or lack of control, is irrelevant ․ When he puts his dog in the possession of someone else, the law should not impose on that keeper the obligation to indemnify the owner for injuries caused by his dog.   We reject the owner's argument that, because the statute imposes alternative liability between owner and keeper, the owner is entitled to indemnification from the keeper.”  Maccarone v. Hawley, supra, 7 Conn.App. 25–26.   As Maccarone noted, there is a “common law principle that, as between two innocent persons, namely the injured third party and the owner or keeper, the loss should fall on the one who caused it, rather than on the one who had no part in doing so.”   Id.;  see also Granniss v. Weber, supra, 107 Conn. 625.  Maccarone is discussed at length, with approbation, in Murphy v. Buonato, supra, 42 Conn.App. 242.   The Appellate Court's decision in Murphy was affirmed without elaboration or qualification by our Supreme Court in Murphy v. Buonato, supra, 241 Conn. 322.   The result is that a dog owner who gives temporary possession of his dog to a keeper remains liable for injury caused by the dog to any person while the dog is with the keeper;  see Maccarone, supra, 7 Conn.App. 26;  unless the dog turns on the keeper.   See Murphy v. Buonato, supra, 241 Conn. 319;  Auster v. Norwalk United Methodist Church, supra, 286 Conn. 163.   Then, essentially, the keeper indemnifies the owner.   On the one hand, the dog owner cannot avoid liability under § 22–357 to a third-party plaintiff no matter the “degree of control, or lack of control” of the dog's keeper.   On the other hand, despite strict interpretation of the statute;  Schonwald v. Tapp, 142 Conn. 719, 722, 118 A.2d 302 (1955);  if the keeper is injured by the dog, the keeper is not “any person” for purposes of a claim against the owner under the statute.   See Murphy v. Buonato, supra, 42 Conn.App. 253 (O'Connell, J., dissenting) (majority opinion adds to § 22–357 the requirement that the plaintiff not be the dog's keeper).

FN8. Summary judgment requires evidence on which it would be proper to grant a motion for directed verdict.  Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 815..  FN8. Summary judgment requires evidence on which it would be proper to grant a motion for directed verdict.  Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 815.

Cole–Chu, Leeland J., J.