Summary
granting defendant's motion to strike, concluding that complaint alleged conduct that was involuntary or innocent, as opposed to voluntary and either vicious or mischievous and noting that “do[ing]” damage involved affirmative act by dog
Summary of this case from Atkinson v. SantoreOpinion
No. CV 10-6006205-S
May 12, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this action brought under General Statutes § 22-357, the "dog bite" statue, plaintiff alleges that "as the plaintiff passed through the entranceway into the store, the plaintiff tripped over the dog who was [lying] on a black floor mat in front of the door."
On January 14, 2010, defendant moved to strike the complaint.
General Statutes § 22-357 imposes strict liability on the owner of the dog for any damage done by the dog. "The statute is drastic and its purport is that a person who owns a dog does so at his peril." Fellows v. Cole, 4 Conn. Cir.Ct. 677, 239 A.2d 56 (1967). Nevertheless, to impose liability, the statue requires that the dog "does" damage. In Granniss v. Weber, 107 Conn. 622, 141 A. 877 (1928), our Supreme Court explained that the word "does" as used in the statue means as "to bring about; to produce as an effect or result; to effect; to inflict." This definition, the court explained, includes acts of the dog and is not limited to biting. Instead, "[t]he liability of the owner or keeper extends to all damage to the person which is proximately occasioned by the dog." Fellows, supra, 4 Conn. Cir.Ct. 680.
Although several Connecticut cases have considered whether the dog "did" damage under the statute, all of the factual scenario presented necessarily involved an affirmative act on behalf of the dog. See, e.g., Fellows, supra, 4 Conn. Cir.Ct. 680, Malone v. Steinberg, 138 Conn. 718.
Jurisdictions with similar statutes have considered the precise issue at hand-whether a plaintiff who trips over a dog may recover under a dog owner statute. Two courts have interpreted their statutes as requiring "affirmative action" within the element of causation in order to hold a defendant liable. See, e.g., Bailey v. Bly, 87 Ill.App.2d 259, 262, 231 N.E.2d 8 (1967); Smith v. Jett Hill Farm, Inc., 61 Ohio Misc.2d 338, 341, 579 N.E.2d 295 (1989). In these cases tripping over a lying down dog or a dog's chain was considered insufficient to impose liability under the respective dog bite statute.
The complaint, in this case even when read in the light most favorable to the plaintiff, alleges conduct that is involuntary or innocent, as opposed to voluntary and either vicious or mischievous. It is concluded that the behavior of the dog in the present case was of a passive nature that was not covered by the statute.
Motion to Strike granted.