Opinion
No. CV08-5007701S
October 19, 2009
MEMORANDUM OF DECISION
The matter presently before the court arises out of an alleged dog bite. The plaintiff, Anne Himpel, claims that on November 1, 2008, while an invitee on property located at 53 Park Avenue, Unit A1 in Bridgeport, Connecticut, she sustained permanent injuries when she was bitten by a pitbull owned or kept by the defendant Nicole Bueti. The complaint, comprised of two counts, is based on Connecticut General Statutes § 22-357, Connecticut's Dog Bite Statute, and is brought against both Nicole Bueti and her mother, the defendant Carol Bueti, with whom Nicole Bueti allegedly resided and where the pitbull was allegedly kept and harbored by Carol Bueti.
On April 13, 2009, the defendants filed a "Motion to Cite in Apportionment/Indemnification Defendant Jennifer Fink; the court, Radcliffe, J., granted the motion, over the plaintiff's objection, on May 5, 2009. The defendants' complaint as to Fink is entitled "Apportionment Complaint against Jennifer Fink" and claims apportionment of damages and indemnification in its claim for relief. Comprised of two counts, the first count seeks apportionment pursuant to C.G.S. § 52-572b, and the second count seeks indemnification based on common law active/passive negligence. The second count essentially alleges that Fink was in exclusive control of the dog and the area where the dog bite occurred at the time of the incident, and that she cared for and harbored the dog at the time.
The summons refers to "Jessica" Fink as do the allegations contained within the "apportionment complaint"; the heading of the apportionment complaint and appearance by Fink's counsel make reference to "Jennifer" Fink. Subsequent pleadings alternate between the two.
On July 20, 2009, Fink filed a motion to strike both counts of the defendants' complaint against her, on the basis that claims for apportionment and/or indemnification are not allowed in the context of cases brought under the dog bite statute. The defendants filed their objection on September 24, 2009; on that same date, the defendants filed a one-count "Revised Indemnification Complaint" against Fink, based solely on common-law active/passive negligence, and removing any claim for apportionment. The matter was heard at short calendar on September 28, 2009.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. When ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The plaintiff's cause of action against the defendants is based on C.G.S. § 22-357, Connecticut's "dog-bite statute," which provides in relevant part as follows. "If any dog does any damage to either the body or property of any person, the owner or keeper . . . 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."
The gravamen of Fink's motion to strike is not that the complaint against her fails to sufficiently allege all requisite elements of a claim for common-law active/passive negligence, but that the defendants cannot seek indemnification from her where the underlying claim is brought pursuant to the dog bite statute.
The general rule in Connecticut is that "there is no right of indemnity or contribution between joint [tortfeasors]." Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965). A common law exception to this rule applies, however, if the indemnitee proves that "(1) the indemnitor was negligent; (2) such negligence was the direct cause of the damages; (3) the indemnitor was in control of the situation to the exclusion of the indemnitee; and (4) the indemnitee did not know or have reason to know of the indemnitor's negligence and could reasonably have relied on the indemnitor not to be negligent." Hammond v. Waterbury, 219 Conn. 569, 576 A.2d 939 (1991).
Maccarone v. Hawley, 7 Conn.App. 19 (1986), is instructive. In Maccarone, the plaintiff sued the defendant dog owner pursuant to the dog bite statute; the dog owner brought a third-party complaint against the veterinary clinic where the dog was boarded and where the defendant was employed. The first count was based on contractual indemnification, and the second count was based on common-law indemnification. The appellate court, in upholding the decision of the trial court granting the motion to strike, rejected the defendant dog owner's argument that the statute imposed an implied obligation on the keeper of the dog, alleged to be in the exclusive control of the dog, to indemnify the owner of the dog for liability in damages based on injuries to a third party caused by the dog. Thus, the court found that there was no independent legal relationship between the defendant dog owner and third-party defendant/keeper. The court explained as follows:
There is no language in the statute which reasonably suggests such an implied obligation. Indeed, the history and purpose of the statute suggest that the keeper should not be required to indemnify the owner,
The statute creates strict liability in the owner or keeper to third parties for injuries caused by a dog. Its purpose is 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 . . . It is an example of the 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.
Thus, the statute does not make fault a factor in determining whether an owner or keeper should be responsible to an injured third party. The owner or keeper must pay the injured party, not because he was at fault in not properly controlling the dog or in not being aware of the dog's potential for harm, but because justice and social policy require that he bear the loss rather than the injured third party.
Applying analogous principles to this case, the issue is whether, as between two parties without fault, namely the owner or the keeper, the owner or the keeper should bear the loss. We conclude that if there is to be any shift of responsibility it should ultimately rest on the owner. The allegation of the defendant's third party complaint is that he put the dog in the Clinic's possession, at which time the dog bit the plaintiff. 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 the statute 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.
We analogize this case to the situation of a manufacturer of a defective product who distributes it in the chain of commerce. Although a party down the chain, e.g., the middleman or retail seller, may seek indemnification from the manufacturer, the manufacturer ordinarily cannot seek indemnification from a party down the chain of distribution. In the present case, the owner of a dog with a potential for harm is analogous to the manufacturer of a defective product. 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. In this case, we need not decide whether the liability to an injured third party under the dog-bite statute is strictly in the alternative, or whether such an injured third party can recover against both the owner and keeper upon proof that each defendant is either an owner or keeper. That question is not determinative of whether the statute imposes on a keeper of a dog an implied obligation of indemnity in favor of the owner of the dog.
Id. at 24-26 (citations omitted, internal quotations omitted). See also Therrien v. Rainchuso, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 085007957 (September 23, 2009, Brunetti, J.) (denying third-party defendant veterinary hospital's motion to strike claim of common-law indemnification brought by defendant dog owner, finding independent duty based on allegations that veterinary hospital failed to properly anesthetize the dog).
In Lenihan v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 054010147 (April 3, 2007, Radcliffe, J.) [ 43 Conn. L. Rptr. 220], the plaintiff brought claims under the dog bite statute against the City of Bridgeport, Virginia Silano, and Gerald Host, as well as a claim for recklessness against Host; the city filed a cross claim against Host based on common-law indemnification. Host moved to strike the cross claim, arguing that it was insufficient as a matter of law. The court granted the motion to strike in part, holding that no claim for indemnification arising out of liability imposed pursuant to C.G.S. § 22-357 can be maintained, stating: "[n]egligence by the owner or keeper of a dog is not required in order to establish a cause of action pursuant to § 22-357, C.G.S. The statute extends liability beyond that existing at common law, because it abrogates the doctrine of scienter, which required knowledge by the owner of a dog's ferocious or mischievous propensity." (Citations omitted.)
The court in Sedlak v. Neville, Superior Court, judicial district of Stamford-Norwalk, at Stamford, Docket No. 98016708 (December 21, 1999, D'Andrea, J.), however, reached a different conclusion on similar facts. There, the defendant dog owner brought a third-party complaint based on active/passive negligence against certain entities related to the dog's leash where the underlying claims against the dog owner were based on the dog bite statute and negligence; one of those entities, the retailer, moved to strike, on the basis that the third-party complaint failed to sufficiently allege exclusive control and active/passive negligence, and on the basis that the tortious conduct alleged by the third-party plaintiff differs from the tortious conduct alleged by the plaintiff. The court denied the motion to strike in its entirety, stating, with respect to the latter issue:
The plaintiff in the present case has alleged personal independent negligence against the third-party plaintiff. While a court could conclude that his negligence in failing to control his dog, failing to keep his dog on a leash, and allowing his dog to roam at large on the land of another, may have been a proximate cause of the underlying injury, the trier of fact must determine whether this activity was passive or secondary negligence. Kaplan v. Merberg Wrecking Corp., [ 152 Conn. 405, 415, (1965)]. Based on Kaplan, it is possible for the trier of fact to conclude that the third-party plaintiff is entitled to indemnification because the dog leash may have been the primary cause of the injury. Id. [The] claim that the third-party plaintiff's allegations of negligence must be based upon the same allegations of negligence as those in the plaintiff's complaint lacks authority, and ignores the proposition set forth in Kaplan that personal independent negligence does not foreclose indemnification. (Emphasis added.)
See also Blake v. Reeves, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 054005750 (January 5, 2007, Nadeau, J.) [ 42 Conn. L. Rptr. 602]. (in dog bite case involving counts of both statutory liability pursuant to § 22-357 and common-law negligence, where dog owner filed cross-complaint for common-law indemnification against another defendant, that other defendant's motion to strike, which claimed dog owners failed to sufficiently allege certain elements of common law negligence, denied); Watson v. Boykin, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 385205 (August 24, 1992, Burns, J.) [ 7 Conn. L. Rptr. 261] (same facts as Blake v. Reeves, but granting motion to strike, where indemnification claim failed to allege independent legal relationship).
Although the Maccarone case centered on the issue of whether the employer owed an independent legal duty to the defendant sufficient to overcome the exclusive remedy provision of our workers' compensation act, the reasoning applies to the present matter. Simply put, the strict liability created by the legislature in our dog bite statute does not permit a claim by a dog owner against the dog keeper alleging common-law active/passive negligence, as the dog bite statute does not give rise to an implied right of indemnity or an independent legal relationship.
For the foregoing reasons, the third-party defendant's motion to strike is granted.