Opinion
NNHCV185041772S
09-14-2018
Stacey LETTIERO v. Beverly RANEY
UNPUBLISHED OPINION
M. Nawaz Wahla, J.
ISSUE
The issue presented here is whether the plaintiff’s application for a Prejudgment Remedy (PJR) pertaining to the dog owned by the defendant who allegedly bit the plaintiff for the second time should be granted. The PJR, accompanied by an affidavit and the proposed complaint, alleges negligence and statutory strict liability claims. The defendant warned the plaintiff, after the dog previously bit her, to not come to the defendant’s house when she was not present. The specific issues in this action are whether the plaintiff is a trespasser and deliberately contributed to her injury to enter the defendant’s house contrary to the specific warning, and whether a trespass is a defense for a dog owner. For the reasons set forth below, the application for the PJR is hereby granted as to the strict liability claim only.
PROCEDURAL CONTEXT
On March 1, 2018, the plaintiff filed a Notice of Application for Prejudgment Remedy hearing along with an application for PJR, Proposed Writ, Summons, and Complaint. The plaintiff attached an affidavit with these documents. The proposed complaint has two counts. Count one sounds in negligence and count two sounds in statutory strict liability pursuant to General Statutes § 22-357.
The essence of the plaintiff’s allegations are summarized as follows: This action arises out of a dog bite incident that occurred on October 3, 2017. The plaintiff, Stacey Lettiero, alleges that she was lawfully present on the property owned and controlled by the defendant, Beverly Raney, located at 951 North High Street, East Haven, Connecticut. The plaintiff alleges that she was violently attacked by a dog kept by the defendant and suffered severe injuries. The plaintiff alleges that she was not committing a trespass or a tort, or teasing, tormenting or abusing the dog. The defendant has not produced an insurance policy potentially covering the plaintiff’s injuries and damages. The plaintiff seeks to attach the defendant’s property sufficient to cover the damages.
On May 23, 2018, the court held a hearing on the plaintiff’s application for the PJR.
FACTUAL FINDINGS
The court heard testimony from these individuals and their spouses, and observed their demeanor, in addition to reviewing the trial exhibits. Based on the court’s determination of credibility in light of the circumstances of the case, the court makes the following determinations of pertinent fact:
1. The trial testimony established that the defendant, a self-represented party, is the owner of the residential property (house) located at 951 North High Street, East Haven, Connecticut. The defendant is also the owner and keeper of the dog, which was described at the hearing as "a big black dog."
"[Our courts have] always been solicitous of the rights of [self-represented] litigants and ... will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party ... Although we will not entirely disregard our rules of practice, we do give great latitude to [self-represented] litigants in order that justice may be both be done and be seen to be done ... For justice to be done, however, any latitude given to [self-represented] litigants cannot interfere with the rights of the other parties, nor can we disregard completely our rules of practice." (Internal quotation marks omitted.) Marlow v. Starkweather, 113 Conn.App. 469, 473, 966 A.2d 770 (2009).
2. The plaintiff testified that she and the defendant are neighbors, had known each other, and were friends. On October 3, 2017, the defendant’s dog bit the plaintiff’s stomach while she was at the defendant’s house using their microwave. The plaintiff sought treatment at urgent care for those injuries. The plaintiff then went to see her primary care doctor, who advised her to keep the wound clean and get the rabies vaccine as an injection. The plaintiff testified that she received the rabies vaccine treatment, which was painful. The plaintiff further testified that she went to EPIC Family Physicians and Yale New Haven Hospital, where rabies vaccine were administered. The plaintiff also received an ultrasound test on October 30, 2017. The plaintiff testified that there are scar marks on her abdomen, which could be permanent. The review of the exhibits submitted at the hearing indicates that Medicaid paid for the plaintiff’s treatment.
"It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ... The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible ... It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any ... testimony." (Internal quotation marks omitted.) In re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011), aff’d, 306 Conn . 438, 51 A.3d 334 (2012). Moreover, "[i]t is within the province of the trial court to find facts and draw proper inferences from the evidence presented." (Internal quotation marks omitted.) McKeon v. Lennon, 131 Conn.App. 585, 597, 27 A.3d 436, cert. denied, 303 Conn . 901, 31 A.3d 1178 (2011).
3. The plaintiff’s testimony revealed that this was the second time the dog bit her at the defendant’s premises. The first incident took place on September 1, 2017 at the defendant’s house where the dog bit the plaintiff’s right wrist. The plaintiff testified that she did not seek any medical treatment for the September 1, 2017 bite. She did not bring any legal action against the defendant for the first incident.
4. During the cross examination of the plaintiff, the plaintiff admitted that the defendant previously warned her to not come to the defendant’s house when the defendant was not present. The trial testimony specifically revealed that, at the time of first bite, the defendant strictly warned the plaintiff to not come to the defendant’s house in her absence. The trial testimony further revealed that the plaintiff chose to ignore that warning and came to the defendant’s house to use the defendant’s microwave to warm her "hot pocket" when the defendant was not at home.
5. The trial testimony also revealed that, when the plaintiff entered the defendant’s house in her absence (supposedly she was allowed entry by the defendant’s son), the dog started to come towards her. The plaintiff threw a "hot pocket" at the dog. The court can reasonably and logically infer from the plaintiff’s conduct that she could be construed as a trespasser at that moment in time. Her action of throwing the "hot pocket" at the dog could be viewed as abusing or provoking the dog. Although the plaintiff could argue that she was doing this in self-defense, this argument is difficult to accept because she intentionally and deliberately violated that defendant’s warning.
6. The plaintiff did not call any other witnesses to testify on her behalf.
7. The defendant testified that she is a widow and lives at the subject property with her son. The defendant averred that her dog was a friendly dog and that she locked it up or leashed it after the first bite incident. She further testified that there was a mortgage on the house and the home owner’s insurance did not cover liability for the dog bite. The defendant further averred that the fair market value of the house was approximately $100,000 to $110,000.
8. The defendant testified that the plaintiff placed a lis pendens on her property. The court finds that the defendant’s testimony is credible.
9. Nancy Collins testified as a corroborating witness for the defendant. She testified that the plaintiff, prior to the instant dog bite incident, was warned twice not to come to the defendant’s house when she was not present. Despite such warnings, the plaintiff intentionally chose to enter the defendant’s house and brought upon it herself. The court finds Collins’ testimony to be credible as well.
STANDARD OF REVIEW- PJR
General Statutes § 52-278d(a) authorizes the grant of prejudgment remedy when "there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ..."
In Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 102-03, 912 A.2d 1019 (2007), our Supreme Court reiterated the long-recognized definition of probable cause first adopted in Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 102; Wall v. Toomey, supra, 52 Conn. 36; see TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008). Probable cause must be found as to both the merits and damages. Kosiorek v. Smigelski, 112 Conn.App. 315, 322-23, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.3d 113 (2009). The plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring her loss. Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 693, 795 A.2d 1274 (2002). A court may grant PJR for an amount less than the amount sought in the application for PJR. Connecticut Light & Power Co. v. Gilmore, 89 Conn.App. 164, 173-74, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005).
DISCUSSION
Standard of Review- Negligence
As far as the negligence count is concerned, it would be very hard for the plaintiff to make a case that the defendant proximately caused the plaintiff’s injuries. The evidence showed that, after the first dog bite incident, the defendant kept the dog secured on a leash or locked it up. The plaintiff was warned not to enter the premises when the defendant was not home. Nevertheless, she entered the defendant’s home and, as a result, received a bite from the dog.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010). "To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries ... The first component of legal cause is causation in fact ... The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct ... The second component of legal cause is proximate cause ... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407, 411 (2007).
In the present case, the plaintiff would struggle to prove the defendant’s actions proximately caused her injuries. The evidence revealed that the defendant’s conduct was likely not a substantial factor in the plaintiff’s injuries. Rather, it was likely that the plaintiff’s own conduct that brought about her injuries. Thus, in light of the foregoing, the court denies the application of PJR on the negligence count.
Standard of Review- Dog Bite Under Statutory Provision
Pursuant to § 22-357, anyone who owns or keeps a dog is held strictly liable for any damage caused by the dog, irrespective of whether the owner or keeper was negligent in controlling the dog. The relevant portions of the statute provide: "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." § 22-357. A "keeper" of a dog means someone other than the owner who harbors or has possession of any dog. General Statutes § 22-327(6). To recover under the statute, the plaintiff must prove: 1) that the defendant was the owner or keeper of the dog; 2) that the dog did, in the language of the statute, "any damage to ... the body or property" of the plaintiff; and 3) that no exception applies. Id.
Section 22-357 creates two exceptions to this rule of strict liability. The first is that the statute exempts from liability the owner or keeper whose dog does damage to a person who was committing a "trespass or other tort." The word "tort" means a wrongful act. 86 C.J.S. 625-26, Torts § 2 (1997). "[C]ommitting a trespass or other tort" means more than merely entering on the property or in the area where the dog was, but rather entering to commit an injury or a wrongful act. Hanson v. Carroll, 133 Conn. 505, 510, 52 A.2d 700 (1947). This means such wrongful acts committed against the person or property of the owner or keeper or his or her family, or similar wrongful acts against which the dog, with its characteristic loyalty, would take defensive or protective action, or those, if committed against the dog, would likely excite it to use its natural weapons of defense. Kowal v. Archibald, 148 Conn. 125, 128, 167 A.2d 859 (1961).
The second exception applies if a plaintiff was "teasing, tormenting, or abusing" the dog. § 22-357(b). Teasing, tormenting or abusing a dog means engaging in actions that would naturally annoy or irritate a dog and provoke it to retaliation. Kowal v. Archibald, surpa, 148 Conn. 129. Such actions are those of such a nature as would naturally antagonize the dog and cause it to attack and are improper in the sense that they are without justification. Id. Playing with a dog in a friendly manner does not fall within the definition of "teasing, tormenting or abusing" the dog. Weingartner v. Bielak, 142 Conn. 516, 520, 115 A.2d 668 (1955).
Trespass
The main issue for resolution is whether the plaintiff’s conduct constituted a trespass within the meaning of § 22-357. A trespass in the generic sense- being on the defendant’s property without invitation or permission- does not create a material issue of fact in a case brought under § 22-357. At least since Verrilli v. Damilowski, 140 Conn. 358, 364, 100 A.2d 462 (1953), a mere technical trespass is insufficient to exclude a plaintiff from statutory strict liability recovery. There must be an entry on the land of the dog owner or keeper with intent to cause damage, or acts committed which would naturally arouse an ordinary dog to protect his owner. Id., 363. The plaintiff in her pleadings and testimony implies that she did not enter the defendant’s property with an intent to cause damage and took no action which would arouse the protective instinct of the defendant’s dog. Previous cases support the plaintiff’s argument. See id., 361; accord Jacob v. Winkhaus, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV- 11-6008807-S (May 10, 2012, Jennings, J.) (54 Conn.L.Rptr. 1). Nevertheless, the testimony at the hearing makes clear that the plaintiff was warned to not come to the defendant’s home in her absence and came despite those warnings. Accordingly, a stronger case could be made from the conduct of the plaintiff that she was a trespasser, but, in the context of this action, was merely a technical trespasser.
There is also an issue of whether the dog was vicious, but, based on the testimony at the hearing, the plaintiff would struggle to make a case that the dog was vicious, that the defendant was aware of it, and, despite that knowledge, took no steps for safety of the public. The court is not persuaded by the plaintiff’s argument.
The court is aware of the low standard for granting the application for the PJR, and, in light of specific facts of this case, the court is constrained to conclude that the plaintiff would prevail on the second count of statutory liability. However, the court denies the PJR as to the amount of $75,000 because there was no evidence as to that amount. The medical bills have been paid and it is very unlikely that the plaintiff will succeed in an award of such an amount. Rather, the court believes the plaintiff will likely recover $5,000 in damages due to the bite. Therefore, the application for the PJR is granted as to the strict liability count only in the amount of $5,000.
CONCLUSION
For all of the foregoing reasons, the application for the PJR is hereby ordered denied as to the proposed negligence count and denied to the requested amount of $75,000. The application for the PJR is granted as to the proposed strict liability count only in the amount of $5,000.
It is so ordered.