Jeffrey Glenn v. David Holland, Jr. et al.

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Superior Court of Connecticut.

Jeffrey Glenn v. David Holland, Jr. et al.

CV106002593S

Decided: November 30, 2012

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 157

FACTS

On January 15, 2010, the plaintiff, Jeffrey Glenn, filed a thirteen-count complaint against David Holland, Jr., Gerri Scott, Jayleianna Holland, Michele Kellough, the city of Norwich, Yi Len Wang and Xiu Li Zheng.   The plaintiff alleged, inter alia, that while working as a postal carrier for the United States Postal Service, he was attacked by two pit bull dogs in the vicinity of 24 Harland Place in Norwich.   The plaintiff filed an amended complaint on April 22, 2010.   On May 2, 2010, Kellough and Norwich (the defendants) filed a motion to strike counts seven, eight, and nine of the amended complaint.   The court granted the defendants' motion to strike on November 12, 2010, and the plaintiff subsequently filed the revised complaint in this action on November 29, 2010.

Count seven of the revised complaint sounds in recklessness.   The plaintiff alleges that Michele Kellough, an animal control officer for Norwich, caused the plaintiff's injuries by acting recklessly.   Specifically, Kellough had notice that the parents of the two pit bulls that attacked the plaintiff had been quarantined and euthanized for violent behavior, and that the two pit bulls at issue were being raised by the same owners and in the same environment as their mother.   Nevertheless, Kellough did not require that the two pit bulls be registered, vaccinated, monitored, or evaluated by a veterinarian.   Kellough also “[i]gnored an obvious and apparent risk by not investigating the puppies born to parents known to be a threat to public health and safety.”   As a result, the plaintiff “was viciously attacked and severely injured by the two pit bull dogs born to these ferocious parents.”

Count eight of the revised complaint sounds in negligence.   The plaintiff alleges that Kellough acted negligently based on facts almost identical to those contained in count seven.   Also, the plaintiff alleges that he was an identifiable victim because, as a postal carrier, he was required to come within close proximity to the violent pit bulls' home on a daily basis.   In addition, it should have been readily apparent to Kellough that the dogs posed a serious threat of imminent harm to the plaintiff's health and safety, and that failure to take reasonable precautions to remove or contain the dogs would subject the plaintiff to the imminent harm.

Count nine of the revised complaint seeks statutory indemnification.   The plaintiff alleges that the city of Norwich is liable to the plaintiff under General Statutes § 7–465.1  The plaintiff incorporates the facts alleged in count eight (negligence), and further states the following:  The city of Norwich employed Kellough as an animal control officer;  the plaintiff's injuries were caused by Kellough while she was acting in the performance of her duties and within the scope of her employment;  Kellough is personally liable to the plaintiff, and, consequently, the city of Norwich is liable on Kellough's behalf pursuant to § 7–465.

On December 1, 2011, the defendants filed the present motion for summary judgment and supporting memorandum of law as to counts seven, eight and nine of the plaintiff's revised complaint on the grounds that there are no genuine issues of material fact with respect to the defendants' alleged recklessness, negligence, or vicarious liability.   In support of the motion, the defendants submit the following evidence:  (1) excerpts of a certified deposition of the plaintiff, (2) excerpts of a certified deposition of Brent Southwood (a neighbor living near 24 Harland Place, where the pit bulls resided), (3) the deposition of the defendant, Michele Kellough, (4) the September 12, 2008 Norwich police department case report regarding the incident with the pit bulls' mother, and (5) the certified deposition of Donna Gremminger (the animal control officer who responded to the incident at issue in that case).

The plaintiff filed an objection to the defendants' motion for summary judgment and a memorandum of law in support on April 2, 2012.   In support of the memorandum, the plaintiff submitted a copy of a 2007 South Carolina Attorney General Opinion stating that pit bulls are inherently violent.

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.   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 ․ 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938, A.2d 576 (2008).

SUMMARY OF ARGUMENTS

In support of their motion for summary judgment as to count seven, the defendants argue that the plaintiff's claims of recklessness are legally insufficient and that Kellough's conduct was not reckless.   The defendants state that Kellough's conduct was not reckless as a matter of law because no evidence exists “reflecting a conscious state of mind on the part of Kellough of the consequences of her act or failure to act, [which is] necessary to prevail on a claim of recklessness.”

The plaintiff counters that his recklessness claim is legally sufficient because pit bulls are naturally inclined to be stronger and more vicious than other dogs.   Kellough was “aware of the violent nature of the dogs' lineage, the environment in which the dogs were to be raised, and the fact that said dogs were pit bulls.”   Although Kellough was aware of those facts, she failed to take action against the pit bulls at issue.   Additionally, the plaintiff notes that a common-law action for recklessness falls within an exception to conditional governmental immunity.

As to count eight, the defendants argue that Kellough's actions do not constitute negligence.   Specifically, the defendants state that Kellough owed no duty to the plaintiff based on the Superior Court's decision in Malloy v. Colchester, Superior Court, judicial district of New London, Docket No. CV 00 0120896 May 8, 2003, McLachlan, J.) (34 Conn. L. Rptr. 652), aff'd, 85 Conn.App. 627, 858, A.2d 813 (2004) (defendant animal control officer did not have duty to prevent horse from wandering into road and colliding with plaintiff's vehicle).   The defendants also argue that the plaintiff's negligence claim is barred by the doctrine of governmental immunity.

The plaintiff counters that Kellough owed a duty to the plaintiff because, according to the Connecticut Appellate Court, if an animal is either vicious or belongs to a naturally vicious species, the owner has a duty to give notice of the animal's propensity or to restrain the animal.   The plaintiff argues that pit bulls are naturally strong and vicious, and the pit bulls at issue were being raised in the same environment as their violent parent.   The plaintiff also argues that the present case falls within the “identifiable person, imminent harm” exception to governmental immunity.

As to count nine, the defendants argue that the city of Norwich is not liable to the plaintiff under General Statutes § 7–465 because the plaintiff's negligence claim against Kellough fails as a matter of law, and the claim is also barred by the doctrine of governmental immunity to which no exception applies.   The plaintiff counters that a genuine issue of material fact exists as to Kellough's conduct, and that therefore the city of Norwich may be liable to the plaintiff under § 7–465.

B.

The court first must address the motion for summary judgment with respect to count seven.   This court stated in its November 12, 2010 memorandum of decision on the defendants' motion to strike that the plaintiff's claim in count seven of the amended complaint failed to set forth a legally sufficient claim for recklessness.   The only additional facts alleged in the revised complaint are that Kellough was aware of puppies born to Sheena and Tank, was aware that the puppies were being raised in the same environment, and had notice that the same people who owned Sheena were raising the pit bulls.

In order for a plaintiff to prove a claim of recklessness, the claim “must, like an action in negligence, allege some duty running from the defendant to the plaintiff ․ In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove ․ the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Citation omitted;  internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698–99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).

In the present case, the plaintiff has not provided any affidavits or admissible evidence to suggest that Kellough had any awareness that the plaintiff would have been endangered by her failure to act.   Even if Kellough was aware of the dangerous propensities of the parent dogs, there is no evidence to demonstrate that Kellough was aware of the dangerous propensities of the pit bull puppies, themselves.   On the contrary, Kellough stated in her deposition that on the date of the incident involving the pit bulls' mother, the only time she saw the puppies that grew into the dogs that attacked the plaintiff, the puppies were “[a]bout eight days ․ They were just little blobs.   Their eyes weren't open.   They weren't mobile yet.”   There is no evidence to establish that the defendant Kellough owed a duty to the plaintiff with regard to the puppies or that she acted or did not act in a deliberate, wanton or reckless manner.

C.

Regarding count eight, negligence, two issues will be discussed in turn:  (1) whether Kellough owed a duty of care to the plaintiff, and (2) whether the plaintiff's negligence claim is barred by the doctrine of governmental immunity.   With respect to duty, “[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).  “[O]nly if such a duty is found to exist [as a matter of law] 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).

To prevail in an action for negligence, the plaintiff must establish that the defendant owed him or her a duty of care, and that the duty was breached.   Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 148, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000).   The Connecticut Superior Court addressed the issue of whether an animal control officer owes a duty of care to an injured plaintiff in Malloy v. Colchester, supra, 34 Conn. L. Rptr. 652.2  In Malloy, a horse wandered into the road and collided with the plaintiff's vehicle.  Id. The plaintiff sued several defendants, including a Colchester animal control officer.  Id. The Superior Court held that the animal control officer did not owe a duty to the plaintiff because neither statutory nor common law would have permitted the officer to “illegally enter upon a resident's property and take custody of that resident's livestock simply because he has notice that those animals had been roaming.”  Id., 655.

In the present case, as the defendants note, the plaintiff has pointed to no authority by which Kellough could require that the pit bull puppies be registered, vaccinated, monitored, or evaluated by a veterinarian.   The plaintiff also has provided no case law indicating that Kellough had a duty to act.   Independent research of this issue reveals no authority giving rise to a duty under the facts alleged, which are supported by undisputed evidence, that Kellough had no knowledge of any violent propensities of the two dogs that attacked the plaintiff.   Additionally, in Kellough's deposition, she stated that she was not aware of any regulation requiring her to follow up with violent dogs' puppies.   As the defendants have established the absence of a genuine issue of material fact with regard to count eight, and Kellough owed no duty to the plaintiff as a matter of law, the defendant's motion for summary judgment as to count eight must not be granted on the ground of a lack of duty.

Moreover, even if Kellough owed a duty to the plaintiff, the defendants also move for summary judgment on count eight on the ground that the plaintiff's negligence claim is barred by the doctrine of governmental immunity.  “The [common-law] doctrines that determine the tort liability of municipal employees are well established ․ Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

“There are three exceptions to discretionary act immunity.   Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force ․ [Under the third exception], liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ “(Internal quotation marks omitted.)  Id., 319–20.

In the present case, the defendant presents evidence, in the form of Kellough's deposition, that Kellough's acts were discretionary.   As previously discussed, Kellough stated in her deposition that she was not aware of any regulation requiring a follow up with violent dogs' puppies.   This is sufficient to show that Kellough's failure to follow up with the puppies was a decision that required judgment;  i.e., her action was not one to be performed in a prescribed manner.   The plaintiff did not submit any evidence to contradict these facts.   Further, research reveals no legal authority requiring Kellough to act in a predescribed manner with respect to the dogs at issue.   Therefore, Kellough's alleged acts and omissions were discretionary, and the doctrine of governmental immunity applies unless an exception is met.

The plaintiff argues that even if Kellough's actions were discretionary, the plaintiff's negligence claim is still not barred by the doctrine of governmental immunity because the identifiable person, imminent harm exception is applicable to this case.   The plaintiff has not provided any facts or evidence that bring this claim within the identifiable person, imminent harm exception to governmental immunity.   Therefore, the defendants' motion to strike count eight must be granted on the ground of governmental immunity.

D.

With respect to count nine, § 7–465 provides in relevant part:  “(a) Any town, city or borough ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee ․ if the employee, at the time of the occurrence ․ was acting in the performance of his duties and within the scope of his employment, and if such occurrence ․ was not the result of any willful or wanton act ․” General Statutes § 7–465.  “Under § 7–465, the municipality's duty to indemnify attaches only when the employee is found to be liable ․” Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).

In the present case, the plaintiff incorporates the facts alleged in count eight (negligence) into his § 7–465 claim.   Because the municipality's duty to indemnify attaches only when the employee is found liable, and because Kellough is not liable for negligence, the defendants' motion for summary judgment as to count nine must be granted.

CONCLUSION

The defendants have met their burden of showing the absence of any genuine issues of material fact as to counts seven, eight, and nine of the plaintiff's revised complaint and that they are entitled to judgment as a matter of law.   Accordingly, the defendants' motion for summary judgment is granted.

Cosgrove, J.

FOOTNOTES

FN1. General Statutes § 7–465 provides in relevant part:  “(a) Any town, city or borough ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee ․ if the employee, at the time of the occurrence ․ was acting in the performance of his duties and within the scope of his employment, and if such occurrence ․ was not the result of any wilful or wanton act ․”.  FN1. General Statutes § 7–465 provides in relevant part:  “(a) Any town, city or borough ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee ․ if the employee, at the time of the occurrence ․ was acting in the performance of his duties and within the scope of his employment, and if such occurrence ․ was not the result of any wilful or wanton act ․”

FN2. The Appellate Court affirmed the Superior Court's decision, but did not specifically address whether the animal control officer owed a duty to the plaintiff..  FN2. The Appellate Court affirmed the Superior Court's decision, but did not specifically address whether the animal control officer owed a duty to the plaintiff.

Cosgrove, Emmet L., J.