Opinion
No. TTD CV 06-5000462-S
August 28, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT BY THE DEFENDANTS RAY AND MARY FLEGERT
This case is a negligence action in two counts by the plaintiff, Dennery Griffin, a minor via her mother Siobhan Ireland, against the defendants, Ray and Mary Flegert and Terry and Sharon Chase. The Revised Complaint alleges that on October 28, 2004, while Dennery was riding with her mother in Sharon Chase's car, Chase's dog, which was also in the car, suddenly and without warning attacked Dennery. Count One is against the Flegerts, alleging, inter alia, that they, as landlords of the property that the Chases were renting, "allowed and/or permitted a dangerous and hostile dog to be kept on and at the premises . . ." Revised Complaint, Count One, para. 18(a). The Second Count is against the Chases, owners of the dog. The Flegerts have moved for summary judgment on Count One arguing that because the injury did not occur on their property, because they did not own or keep the dog, and because they had no knowledge of any vicious propensities in the dog, judgment should enter in their favor as a matter of law. The court agrees. The motion is granted and summary judgment hereby enters in favor of the Flegert defendants accordingly.
I
The standards for deciding a motion for Summary judgment are well established. "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." Practice Book § 17-49. "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted; citations omitted.) Thompson Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374, 696 A.2d 326 (1997). Issues of negligence are ordinarily not appropriate for summary adjudication, but should be resolved by trial in the ordinary manner. Fogerty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1994); Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972). Nevertheless, a summary judgment should be rendered in the limited circumstances where the evidence is such that no room for disbelief could exist in the minds of the jury and in circumstances that would require a directed verdict for the moving party. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). Summary Judgment dispositions have been approved in dog bite cases, where appropriate, in the past. See, e.g., Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d. 263 (2003).
II
The defendants filed their Motion for Summary Judgment on January 4, 2007. The matter was scheduled for argument on February 13, May 21, and again on July 2, 2007, but was continued each time to permit plaintiff to complete discovery. Plaintiff filed opposition papers on June 28, 2007, and the matter was scheduled for oral argument to be held on August 13, 2007. At that time, plaintiff's counsel reported that depositions had been completed, and that plaintiff elected not to supplement her June 28 written submissions. The court then heard oral argument, and, the matter is now ready for decision.
III
In support of their motion for summary judgment, the Flegerts submitted affidavits based on their personal knowledge, and portions of the transcript of the deposition of Siobhan Ireland taken in the case on November 22, 2006. In opposition, the plaintiff submitted the affidavit of Siobhan Ireland based on her personal knowledge. Plaintiff argues that summary judgment for defendants should be denied because she has presented facts and circumstances sufficient to show that a jury could reasonably find that the Flegerts are legally liable for the dog's conduct and actions.
The court finds that the material facts are not in dispute. The court further finds that at the time of this incident, Dennery Griffin, a minor, lived with her mother, Siobhan Ireland, at 122 Lake View Drive in Ashford, CT. The Chases and their dog resided across the street at 119 Lake View Drive. Siobhan Ireland and Sharon Chase were friends. They often met, spoke, spent time together, and ran errands for each other.
On October 28, 2004, Dennery and her mother were riding with Sharon Chase and the Chase's dog in Sharon Chase's car. Unfortunately, while they were driving down Route 89 in Ashford, a couple of miles from home, the dog bit Dennery.
At the time of these events, the home where the Chases and their dog resided was owned by the Flegerts. The Chases had been renting the property from the Flegerts since 1992. The Flegerts did not walk, groom, feed, water, pay for or in any way care for the dog. The Flegerts did not live at the property they were renting to the Chases, and they never resided there. They did not even know the Chases had a dog when they began renting to them in 1992. However, Sharon Chase told Siobhan Ireland that the Flegerts increased the rent when they learned that the Chases were keeping a dog on the property.
In their Revised Complaint in this case, the plaintiff states a claim for negligence against the Flegerts, alleging that they are liable "(a) in that the defendant[s] . . . allowed and/or permitted a dangerous and hostile dog to be kept on and at the premises; and (b) in that the defendant[s] failed to give a warning to [Dennery] that the dog was dangerous and hostile [, and] (c) in that the defendant[s] . . . knew that said dog was dangerous and hostile yet failed to take any steps and/or measures to safeguard the minor plaintiff from the same." Revised Complaint, Count One, para. 18. The complaint is read as alleging a cause of action in negligence. "A person injured by a dog has for election one of two causes of action to pursue, one in negligence at common law, and the other is under the [dog bite] statute . . . [General Statues] § 22-357." Gretkowski v. Coppolo, 26 Conn.Sup. 294, 296 (1966); see also Verrilli v. Damilowski, 140 Conn. 358, 360-62, 100 A.2d 462 (1953). "When any claim in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." Practice Book § 10-3. Since Plaintiff's Revised Complaint and legal arguments address only common-law negligence issues, and make no mention of the dog bite statute, the court will treat this case as solely an action in negligence. Accord, Stokes v. Lyddy, supra, 75 Conn. 267, n. 14.
The dog bite statute, General Statutes § 22-35, provides:
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 year 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.
The principal difference between an action at common law and an action under the dog bite statute is that the statute abrogates the common-law requirement of scienter so that liability is no longer dependent upon the defendant's knowledge of the dog's ferocity or mischievous propensity. Grannis v. Weber, 107 Conn. 622, 624-25, 141 A. 877 (1928); D.Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 126. An essential element in a common-law action to recover for injuries inflicted by a dog is scienter. See Verrilli v. Damilowski, supra, 140 Conn. 360. Nevertheless, under both causes of action, a plaintiff must at least plead and prove that the defendant was the owner or keeper of the dog. General Statutes § 22-357; Stokes v. Lyddy, supra, 75 Conn. 267. In this regard, the plaintiff's burden under the common-law and dog bite statute are the same.
The facts in this case fail to satisfy this essential requirement. The Flegerts were not the owners or keeper of the dog. They are landlords. The case law has made it clear that, generally, landlords are not liable in dog bite cases as owners and keepers. A landlord is not a "keeper" of a dog merely because a tenant owns a dog and keeps the dog on the premises with the owner's permission. Buturla v. St. Onge, 9 Conn.App. 495, 519 A.2d 1235, cert. denied 203 Conn. 803, 522 A.2d 293 (1987); see also Auster v. Norwalk United Methodist Church, 94 Conn.App. 617, 894 A.2d 329, pet. for cert. granted 278 Conn. 915, 899 A.2d 620 (2006). Plaintiff in this case does not even allege that the Flegerts were owners or keepers of the dog; rather, she claims that the Flegerts allowed the dog to be kept at the rental property. Revised Complaint, para. 18(a). This does not suffice. A landlord who consents to the presence of the dog on the property, but who exercises no control over the dog, is not a keeper. See, Stokes v. Lyddy, supra, 75 Conn.App. 268 n. 16. In this case, there is no evidence that the Flegerts ever owned or controlled or did anything with or for the dog. The Flegerts, therefore, cannot be held liable as owners or keepers under the common law or under the dog bite statute.
For plaintiff to succeed in establishing liability on the part of the Flegerts, the common-law duty would need to be extended to non-owners and non-keepers. Plaintiff does not call for an extension in this case, and our Appellate Court, after a lengthy and scholarly analysis, declined to accept such invitation in 2003 in Stokes v. Lyddy, supra, 75 Conn.App. 265-79. That decision is controlling in this case and, therefore, the court declines to extend the common law.
Moreover, the attack in this case did not even occur on the rental property. The Appellate Court's decision in the Stokes v. Lyddy case is all the more significant on this point because of its factual similarity. In Stokes v. Lyddy, a plaintiff was attacked by a neighbor's dog while the plaintiff was walking along a public sidewalk in the neighborhood. The victim sought to hold the landlord of the owner of the dog liable, even though the attack occurred away from the leased property. The court held that a landlord's "general duty to maintain property in a reasonably safe condition does not extend to uncontrolled land such as neighboring property or public lands." Stokes v. Lyddy, supra, 75 Conn.App. 262. Similarly, in the instant case, the attack did not occur on the leased property. It occurred in the tenant's car driving down a public road miles away from the property. The court in Stokes v. Lyddy ruled that there was no liability for the landlord where the attack occurred off the premises. This court rules likewise in this case for the same reasons.
The Stokes case also discussed a landlord's possible exposure to liability for injury to persons outside of the land on a nuisance cause of action in cases where the landlord knew of a lessee's unavoidably dangerous activity at the inception of the lease, and consented to the activity. Stokes v. Lyddy, supra 75 Conn.App. 263-64 citing 2 Restatement (Second) Torts §§ 379A and 837 (1965). On this point, plaintiff argues that there is evidence in this case that Sharon Chase told Siobhan Ireland that the Flegerts increased their rent when they learned that the Chases were keeping a dog on their property. She argues that this shows that "not only did . . . the Chase[s] make the . . . Flegert[s], aware that they were keeping a dog on the property, they (the Flegerts) assented to the same, were aware of the dog's vicious propensities, and further assumed responsibility for the dog by virtue of increasing the rent owned by the Chases; upon learning that they (the Chases) were keeping a dog on the rented property." Plaintiff's Memorandum, p. 3. The court disagrees. The court finds that this evidence does not show that the Flegerts were aware of the dog at the inception of the lease; at best, it shows that they became aware sometime later. This excludes applicability of the above Restatement sections. Accord, Stokes v. Lyddy, supra 75 Conn.App. 264. Moreover, this piece of evidence says nothing about whether the dog was vicious or likely to cause injury or whether the Flegerts knew it was vicious or likely to cause injury.
IV
For all of the foregoing reasons, the Flegerts' Motion for Summary Judgment is granted and judgment is rendered in their favor, accordingly.