Opinion
AC 40963
08-27-2019
Isha SEN v. Kostas TSIONGAS
Matthew C. Eagan, with whom was James P. Sexton, Hartford, for the appellant (plaintiff). Audrey B. Staropoli, for the appellee (defendant).
Matthew C. Eagan, with whom was James P. Sexton, Hartford, for the appellant (plaintiff).
Audrey B. Staropoli, for the appellee (defendant).
Prescott, Elgo and Pellegrino, Js.
PELLEGRINO, J. In this premises liability action, the plaintiff, Isha Sen, appeals from the summary judgment rendered in favor of the defendant, Kostas Tsiongas. On appeal, the plaintiff claims that the trial court erred in rendering summary judgment in favor of the defendant, who was the landlord of the apartment building in which the plaintiff lived, because there was a disputed issue of material fact as to whether the defendant should have known that the dog of one of the other tenants had vicious propensities. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. At the relevant times, the plaintiff resided in the second floor apartment of a two unit apartment building at 396 Washington Street in Bristol (building). The defendant was the owner and landlord of the building. On September 18, 2015, at approximately 3:30 p.m., a dog that was owned by the building's first floor tenant bit the plaintiff in the building's common stairway. The plaintiff was taken by ambulance to the University of Connecticut Medical Center in Farmington, where she was treated for her injuries, which included lacerations to and numbness of her right hand.
On May 4, 2016, the plaintiff commenced the present action. In her operative complaint, the plaintiff alleged, inter alia, that the defendant was negligent in failing to maintain the building premises in a reasonably safe condition by allowing the first floor tenant to keep a vicious animal, failing to investigate the animal's history of viciousness, and failing to enforce a provision of the lease that prohibited pets on the premises.
On July 13, 2017, the defendant filed a motion for summary judgment, which was accompanied by an affidavit in which he averred in relevant part: "At no time prior to September 18, 2015, did I have any knowledge of the alleged vicious propensities of the dog involved in the incident.... At no time prior to September 18, 2015, did I observe the dog involved in the incident engage in vicious behavior, nor did [the dog's owner] or anyone else inform me that the dog had a propensity toward viciousness."
On August 30, 2017, the plaintiff filed an objection to the defendant's motion for summary judgment. In support of her objection, the plaintiff attached an affidavit in which she averred in relevant part: "[The first floor tenant] spoke openly about how the [dog] had been used as bait in dog fighting.... It is my opinion that the [dog] exhibited vicious qualities and that these qualities were apparent to any reasonable person who observed the dog.... The [dog] demonstrated aggression by barking, growling, and trying to escape the first floor porch whenever I walked up the stairs.... In June of 2015, the [dog] broke out of the porch and advanced toward my husband, trying to bite him. The [dog] managed to scratch him before it was brought under control.... Before I was attacked, [the first floor tenant] informed me that the [dog] had bitten his seven year old son." In support of her objection to the defendant's motion for summary judgment, the plaintiff also submitted a transcript of her deposition of the defendant, which was taken on July 31, 2017. During the deposition, the following exchange occurred between the plaintiff's counsel and the defendant:
"Q. You have a rule [in your lease agreement] that says, ‘You will not have pets.’ Why do you have that rule?
"A. Well, I have that rule more like for ... pets cause damage ... sometimes.
"Q. What kind of damage can pets cause?
"A. Well, going to the bathroom in the house, this and that, but if somebody asks me, can I get [a pet], or if [they] have a pet, and they're a good tenant ... I'd say okay. You know.
* * *
"Q. What kind of damage [other than property damage] is that?
"A. Well, I mean, if a dog or a cat scratches, you know, another human, yes.
"Q. And do you have that rule to protect other humans?
"A. No. It's mostly, I put it in, like I said, for more damage.
* * *
"Q. All right. And can you tell me about [the first floor tenant] asking you about getting a dog?
"A. Yes. He asked me, he wanted to get a dog from The Humane Society and, then I said, okay.
* * *
"Q. Do you know approximately when [the first floor tenant] got the dog?
"A. Probably 2014 ....
"Q. And ... did you see the dog on the property?
"A. Well, I had seen the dog on the property when they had it out, walking the dog, but I [had] seen the dog inside when I'd go in to do any repairs in the apartments or collect rent.
* * *
"Q. Approximately how often were you at the [building] after they got the dog in 2014?
"A. Well, I don't know. Probably, I'd say, once a week. ...
"Q. Can you tell me about the dog, about what the dog was like?
"A. Well, like I said, when I was there, I would go into their apartment and the dog wouldn't bark, or growl, or anything like that to me. I'd see the dog outside when they ... [had] it on the leash. You know, it pulled, like you know, of course, dogs come and want to see you, but that's about it. I mean, otherwise ... one time when I was cutting the grass, the dog barked at me through the window, but all dogs do that, you know."
On September 5, 2017, the court held a hearing on the defendant's motion for summary judgment. On September 28, 2017, the court granted the defendant's motion for summary judgment and rendered judgment in favor of the defendant. In its memorandum of decision, the court stated: "The plaintiff has not put forth any evidence that the [defendant] had actual or constructive knowledge of the dog's alleged vicious propensities prior to the alleged attack." This appeal followed. Additional facts will be set forth as necessary.
The plaintiff claims that the trial court erred in rendering summary judgment in favor of the defendant because there was a disputed issue of material fact as to whether the defendant should have known that the dog had vicious propensities. Specifically, the plaintiff argues that the evidence, viewed in the light most favorable to her as the nonmoving party, demonstrates the existence of a disputed factual issue. We agree with the plaintiff.
"We begin our analysis with the standard of review applicable to a trial court's decision to grant a motion for summary judgment. 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. A party moving for summary judgment is held to a strict standard.... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... 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.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Anderson v. Dike , 187 Conn. App. 405, 409–10, 202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d 1245 (2019). The following legal principles are also relevant to the plaintiff's claim. "As a matter of well settled common law, [i]t is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control. ... The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe.... The prevailing common-law conception of the dangerous conditions implicated in this duty, moreover, certainly is capacious enough readily to encompass threats from animals, including known vicious dogs.... [A] landlord, in exercising the closely analogous duty to alleviate dangerous conditions in areas of a premises over which it retains control, must take reasonable steps to alleviate the dangerous condition created by the presence of a dog with known vicious tendencies in the common areas of the property." (Citations omitted; internal quotation marks omitted.) Giacalone v. Housing Authority , 306 Conn. 399, 407–408, 51 A.3d 352 (2012).
"We note ... that our conclusion that the traditional common-law duty of landlords to keep common areas in a reasonably safe condition applies to dangers posed by known dangerous dogs accords with the identical conclusion reached by courts in numerous other jurisdictions. See, e.g., Fouts ex rel. Jensen v. Mason , 592 N.W.2d 33, 40 (Iowa 1999) (‘When the landlord knows or has reason to know of the existing dangerous condition, the landlord—to avoid liability—must act to protect those using the common area.... [H]ere, although she may not have had control over the dog, [the landlord] knew or had reason to know that the dog posed a danger to those in the common backyard. She therefore had a duty to take reasonable precautions to protect those lawfully in the common area.’ ...) ...." (Citations omitted; emphasis added.) Giacalone v. Housing Authority , supra, 306 Conn. at 409–11, 51 A.3d 352. The test for common-law premises liability looks to whether the landlord had actual or constructive knowledge of the dangerous condition on the premises. See, e.g., Noebel v. Housing Authority , 146 Conn. 197, 201, 148 A.2d 766 (1959) ("the test is: would the ordinarily prudent [person] in the position of the defendants, knowing what they knew or should have known , anticipate that harm of the general nature of that suffered was likely to result" [emphasis added] ). Thus, in order to prevail on his motion for summary judgment, the defendant in the present case was required to demonstrate the absence of any genuine issue of material fact as to whether he knew, or should have known , of the dog's vicious propensities. Giacalone v. Housing Authority , supra, 306 Conn. at 409–10, 51 A.3d 352.
In her affidavit, the plaintiff averred that the dog "demonstrated aggression by barking, growling, and trying to escape the first floor porch whenever [she] walked up the stairs." Additionally, the plaintiff averred: "It is my opinion that the [dog] exhibited vicious qualities and that these qualities were apparent to any reasonable person who observed the dog." On the basis of the plaintiff's averments that the dog acted viciously toward her when she approached the building and displayed vicious tendencies that were visible to all those who observed it, a jury could reasonably infer that the defendant, who came to the building on a weekly basis, would likely have observed the dog's aggressive tendencies. See Tuccio Development, Inc. v. Neumann , 111 Conn. App. 588, 594, 960 A.2d 1071 (2008) (at summary judgment stage, "court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion" [internal quotation marks omitted] ); Solesky v. Tracey , 198 Md. App. 292, 325, 17 A.3d 718 (2011) ("[T]here was uncontroverted evidence that the landlord had visited the property and had seen these particular pit bulls [firsthand]. In light of a neighbor's testimony that ‘anybody’ who walked near these dogs would experience aggression from the dogs, the jury could have rationally inferred that the landlord, too, observed vicious behavior when she ... visited the premises."), aff'd on other grounds, 427 Md. 627, 50 A.3d 1075 (2012), superseded by statute as stated in Phillips v. J Bar W, Inc. , Docket No. 1167, 2017 WL 4876762, *4 (Md. Spec. App. October 27, 2017). Although a jury could reasonably infer that the defendant had the opportunity to observe the dog's aggressive tendencies, the defendant testified that he never saw the dog display vicious tendencies. Thus, the trial court in the present case was presented with conflicting facts and was required to make a credibility determination. Because the court is not permitted to make such a credibility determination at the summary judgment stage, the existence of these contradictory accounts of the dog's behavior thwarts summary judgment. See, e.g., Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C. , 167 Conn. App. 691, 710, 145 A.3d 292 ("In summary judgment, the court's role is not to weigh the credibility of the parties, which falls within the province of the finder of fact.... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." [Citation omitted.] ), cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). The defendant's argument that there was no dispute as to a material fact before the trial court is further undermined by the existence of additional circumstantial evidence indicating that the defendant should have known that the dog had vicious propensities. "Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects ...." Cruz v. Drezek , 175 Conn. 230, 235–36, 397 A.2d 1335 (1978). In the present case, there was evidence that, prior to biting the plaintiff on September 18, 2015, the dog scratched the plaintiff's husband and bit the first floor tenant's son. Moreover, the plaintiff averred that the dog's owner "spoke openly about how the [dog] had been used as bait in dog fighting." Although this evidence came in through the plaintiff's affidavit, dismissing these statements out of hand amounts to a credibility determination and, therefore, runs afoul of the well established rule that "[w]hen deciding a summary judgment motion, a trial court may not resolve credibility questions raised by affidavits or deposition testimony submitted by the parties." Doe v. West Hartford , 328 Conn. 172, 197, 177 A.3d 1128 (2018) ; see id., at 196, 177 A.3d 1128 (concluding that trial court erred when it dismissed "out of hand" deposition testimony that created genuine issue of material fact).
We do not believe that this statement constitutes inadmissible evidence. Although a lay witness is generally not permitted to give opinion testimony, "[t]he use of such words as ‘I think,’ ‘probably,’ or ‘it is my impression’ are not uncommon in lay testimony and do not make such evidence opinion unless it is clearly so from all the circumstances." E. Prescott, Tait's Handbook of Connecticut Evidence (6th Ed. 2019) § 7.1.2, p. 434. Because evidence is to be construed in favor of the nonmoving party in considering a motion for summary judgment, and because the aforementioned principle is relevant to this issue, we conclude that, although the plaintiff prefaced her statement by stating "[i]t is my opinion," the statement constituted a factual assertion regarding the dog's behavior rather than an opinion.
Moreover, there was evidence that the defendant had constructive knowledge of the dog's vicious propensities in the form of the defendant's own testimony that the dog once barked at him through the window while he was mowing the lawn and that he observed the dog pull toward him when the dog was walked on a leash. Although the defendant described these behaviors as things "all dogs" do, this evidence, in conjunction with the evidence described in the preceding paragraphs of this decision, could reasonably be viewed by the jury as indicating that the defendant had constructive notice of the dog's vicious propensities. On the basis of the foregoing, we conclude that there is a disputed issue of material fact and, therefore, that summary judgment was improper.
Because we reached this conclusion without considering the breed of the dog, we need not address the defendant's argument that the trial court should have considered the fact that the dog was a pit bull in assessing whether the defendant had constructive notice of the dog's viciousness. We, therefore, see no reason to determine the breed issue and do not agree with Judge Prescott's concurrence that the breed of the dog should be considered in assessing premises liability, in the absence of the articulation of such a rule by our Supreme Court or legislature.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion, ELGO, J., concurred.
PRESCOTT, J., concurring.
I agree with the opinion of the majority that the trial court improperly rendered summary judgment in favor of the defendant, Kostas Tsiongas. In reaching this conclusion, however, I conclude, unlike the trial court, that the fact that the dog that bit the plaintiff, Isha Sen, in this case is a pit bull is a relevant factual consideration in assessing whether the landlord-defendant had constructive knowledge of the dog's vicious propensities. Because the question of whether, in the absence of any consideration of the breed of the dog in this case, the trial court properly rendered summary judgment in favor of the defendant is a close one, I am of the view that it is appropriate to address the relevance of the breed of the dog. Numerous courts have concluded that pit bulls or mixed breed pit bulls pose dangers to people greater than most, if not all, other breeds of dogs. See, e.g., Altman v. High Point , 330 F.3d 194, 206 (4th Cir. 2003) ("pit bulls ... are a dangerous breed of dog"); Vanater v. South Point , 717 F. Supp. 1236, 1241 (S.D. Ohio 1989) ("[w]hile [p]it [b]ulls are not the only breed of dog which can be dangerous or vicious, it is reasonable to single out the breed to anticipate and avoid the dangerous aggressiveness which may be undetectable in a[n] [individual] [p]it [b]ull"); see also Tracey v. Solesky , 427 Md. 627, 644 n.18, 50 A.3d 1075 (2012), superseded by statute as stated in Phillips v. J Bar W, Inc. , Docket No. 1167, 2017 WL 4876762, *4 (Md. Spec. App. October 27, 2017).
With respect to the fact that the dog in this case is a pit bull or a mixed breed pit bull, the trial court stated that it "is not about to make a global finding that if a dog bite case involves a pit bull and/or bait pit bull, the landlord is on notice for vicious tendencies." (Internal quotation marks omitted.) The trial court's statement incorrectly suggests that it was being asked to decide whether the fact that the dog in the case was a pit bull establishes, by itself, as a matter of law, that the landlord had constructive knowledge of its vicious tendencies. The plaintiff has made no such claim. Instead, she merely asserts that it is one relevant fact, among others, that raises a genuine issue of material fact regarding the landlord's constructive knowledge.
The Court of Appeals of Maryland in Tracey concluded that a landlord should be held strictly liable for injuries caused by a tenant's pit bull. The Maryland legislature subsequently overturned the decision in Tracey by enacting Md. Code Ann., Cts. & Jud. Proc. § 3-1901 (b) (West 2014). This statute, however, only abrogated Maryland common law to the extent that it imposed strict liability on a landlord for injuries caused by a tenant's pit bull. It did not overturn Maryland common law as it existed on or prior to April 1, 2012. Maryland common law prior to April 1, 2012, provided that it is a relevant factual consideration in determining a landlord's liability for injuries caused by a tenant's dog that the animal was a pit bull. See, e.g., Matthews v. Amberwood Associates Ltd. Partnership, Inc. , 351 Md. 544, 561, 719 A.2d 119 (1998) (noting that "[t]he extreme dangerousness of this breed, as it has evolved today, is well recognized").
Many localities have banned or highly regulated ownership of pit bulls, against constitutional challenge, because of the pit bull's vicious tendencies and ability to cause severe injuries. See, e.g., American Dog Owners Assn., Inc. v. Dade County , 728 F. Supp. 1533, 1538–43 (S.D. Fla. 1989) ; Starkey v. Chester , 628 F. Supp. 196, 197–98 (E.D. Pa. 1986) ; Holt v. Maumelle , 307 Ark. 115, 117–19, 817 S.W.2d 208 (1991) ; Colorado Dog Fanciers, Inc. v. Denver , 820 P.2d 644, 650–54 (Colo. 1991) (en banc); State v. Peters , 534 So. 2d 760, 763–65 (Fla. 3d DCA 1988), review denied, 542 So. 2d 1334 (Fla. 1989) ; American Dog Owners Assn., Inc. v. Des Moines , 469 N.W.2d 416, 417–19 (Iowa 1991) ; Hearn v. Overland Park , 244 Kan. 638, 647–50, 772 P.2d 758, cert. denied, 493 U.S. 976, 110 S. Ct. 500, 107 L. Ed. 2d 503 (1989) ; Bess v. Bracken County Fiscal Court , 210 S.W.3d 177, 181–83 (Ky. App. 2006) ; Garcia v. Tijeras , 108 N.M. 116, 118–24, 767 P.2d 355 (App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988) ; Toledo v. Tellings , 114 Ohio St. 3d 278, 281–84, 871 N.E.2d 1152 (2007), cert. denied, 552 U.S. 1225, 128 S. Ct. 1302, 170 L. Ed. 2d 140 (2008) ; Greenwood v. North Salt Lake , 817 P.2d 816, 818–21 (Utah 1991) ; Dog Federation of Wisconsin, Inc. v. South Milwaukee , 178 Wis.2d 353, 504 N.W.2d 375 (Wis. Ct. App.), review denied, 508 N.W.2d 423 (Wis. 1993). Furthermore, several branches of our military ban pit bulls from housing facilities on military bases because of concerns regarding the breed's tendency toward viciousness. See, e.g., D. Conkright, Department of the Army, "Memorandum for See Distribution: United States Army Garrison Humphreys, Policy Letter #34, Ownership and Control of Pets," (July 21, 2013), available at https://www.army.mil/e2/c/downloads/328371.pdf (last visited August 12, 2019).
In light of the pit bull breed's vicious tendencies, at least two courts have held that it is "objectively reasonable" for a person to assume an approaching pit bull is vicious even though that individual pit bull is, in fact, "a friendly, nonviolent dog who would not have harmed [others] ...." Warboys v. Proulx , 303 F. Supp. 2d 111, 118 and n.13 (D. Conn. 2004) ; see also United States v. Sutton , 336 F.3d 550, 551, 554 (7th Cir. 2003) (holding that less than full compliance with knock and announce rule was reasonable under circumstances, in part, because "pit bull dogs [known for their hostility to strangers] had been seen on the property," which police identified as "[a] potential [threat] to officer safety"); Pickens v. Wasson-Hunt , United States District Court, Docket No. 04-0678-CV-W-HFS, 2006 WL 2265402 (W.D. Mo. August 7, 2006) (determining that police officers were not unreasonable in directing their weapons at pit bull who was not acting aggressively because "it is clear that the unquantifiable, unpredictable aggressiveness and gameness of pit bulls make them uniquely dangerous").
In Warboys , the court determined that a police officer was not required to wait until the pit bull leaped toward him to take protective action. Warboys v. Proulx , supra, 303 F. Supp. 2d at 118. In making this determination, the court considered extensively the vicious tendencies of the pit bull breed. See id., at 118–19 n.13. On the basis of this information, the court concluded that "it is reasonable to single out the [pit bull] breed to anticipate and avoid the dangerous aggressiveness [that] may be undetectable in a[n] [individual] [p]it [b]ull." (Internal quotation marks omitted.) Id., at 119 n.13. Thus, the court in Warboys determined that the officer did not need to know about the behavioral characteristics or propensities of the individual pit bull approaching him; the fact that the pit bull breed itself is known for violent behavior was a sufficient basis for the officer to determine how to treat the approaching dog.
Although breed does not establish by itself a prima facie case of constructive knowledge of danger, it is a relevant factual consideration to be evaluated along with the other evidence. In light of the danger some pit bulls pose to people, some courts have held that evidence regarding the vicious tendencies of the pit bull breed may be considered by a jury as part of its determination of whether a defendant had reason to know of an individual pit bull's dangerousness. See, e.g., Drake v. Dean , 15 Cal. App. 4th 915, 923–24, 19 Cal. Rptr. 2d 325 (1993) (determining that evidence of pit bulls historically being bred for aggressiveness may be considered by jury to consider dangerousness of individual pit bull); Giaculli v. Bright , 584 So. 2d 187, 188, 189 (Fla. 5th DCA 1991) (holding that landlord could be held liable for injuries to plaintiff's son caused by neighbor's pit bull because "it is not necessary that pit bulls be declared vicious per se under the law in order for the landlord and owners to be placed on notice that a tenant has a vicious dog" and, therefore, "[t]he fact that the dog was barking and lunging, particularly in light of the characteristics of pit bulls, is sufficient for a jury to reasonably conclude that the landlord was on notice of the vicious propensity of the dog"); Hampton ex rel. Hampton v. Hammons , 743 P.2d 1053, 1056, 1061 (Okla. 1987) (holding that "evidence relating to the nature of pit [bulls] as a breed is properly admissible" because it is relevant in determining whether defendant is liable for common-law negligence). Moreover, an animal's type has been a consideration our Supreme Court has used to determine whether the owner of the animal is liable for the injuries it caused. The court has held that, even in the absence of evidence purporting to show the vicious tendencies of an individual animal , an owner may be held liable for negligence for the foreseeable harms of an animal that is a part of a "class of animals that is naturally inclined to cause such injuries ...." (Emphasis added.) Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 306, 87 A.3d 546 (2014) ; see id. (holding that "the owner or keeper of a domestic animal has a duty to take reasonable steps to prevent injuries that are foreseeable because the animal belongs to a class of animals that is naturally inclined to cause such injuries, regardless of whether the animal had previously caused an injury or was roaming at large and, accordingly, the owner may be held liable for negligence if he or she fails to take such reasonable steps and an injury results"); see also Hope v. Valente , 86 Conn. 301, 303–305, 85 A. 541 (1912) (holding that, even in absence of evidence concerning behavioral tendencies of defendant's horse, defendant may be liable for negligence based on manner in which horse was left in street while feeding).
At least one court has held that if a dog breed is known for "vicious tendencies," then "knowledge of vicious propensities can be implied due to the type of dog involved ...." Plue v. Lent , 146 App. Div. 2d 968, 969, 537 N.Y.S.2d 90 (1989). If, however, the breed is not known for vicious tendencies, then such an inference cannot be made. See id. Plue , however, did not involve a pit bull. See id. Instead, it involved an Afghan hound, which the court described as "a noble and dignified animal, which, when properly treated, is aloof to strangers and characteristically gentle with everyone." Id. The court contrasted this dog with a German Shepherd, which the court described as "a breed said to have inherited vicious tendencies from its ancestor, the wolf ...." (Citation omitted.) Id.
In a case involving a horse at a commercial farm, our Supreme Court stated, "[i]n making the determination as to whether, as a matter of public policy, the owner or keeper of a domestic animal that has not previously exhibited mischievous propensities may be held liable for injuries that were foreseeable because the animal belonged to a class of animals with naturally mischievous propensities, we consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 322, 87 A.3d 546 (2014).
The court addressed what a plaintiff must show to prove that the harm caused by a domestic animal was foreseeable to the defendant. "[T]o establish that an injury caused by a domestic animal was foreseeable, the plaintiff need not prove that the species as a whole has a natural tendency to inflict such harm, but only that the class of animals to which the specific animal belongs has such a tendency. ... Conversely, if a plaintiff presents evidence that an entire species has naturally mischievous propensities, the defendant may rebut this evidence by producing evidence that the mischievous propensities of the specific animal, or of the particular class of animals to which the specific animal belongs, are less severe than the mischievous propensities of the species as a whole." (Citations omitted; emphasis added.) Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 333–34, 87 A.3d 546 (2014).
Thus, the court in Vendrella suggests that "class" is a subset of "species." As applied to the present case, this might mean that although all dogs do not have vicious propensities, certain breeds, like pit bulls, may possess such propensities.
The common-law rule for negligence "has been modified substantially as it pertains to dogs. Specifically, General Statutes § 22-357 imposes strict liability on the ‘owner or keeper’ of a dog for harm caused by the dog, with limited exceptions." Giacalone v. Housing Authority , 306 Conn. 399, 405, 51 A.3d 352 (2012). This statute, however, does not impose strict liability on a landlord if a dog that lives in his or her building bites someone. As our Supreme Court observed, "a landlord is not the keeper of a dog for purposes of § 22-357 merely because the landlord acquiesces in the presence of the dog on leased premises, or because the landlord has the authority to require that the dog be removed from the premises in the event that it becomes a nuisance, or even because the landlord has the authority to require that certain conditions be placed on the use of the dog by its owner." Auster v. Norwalk United Methodist Church , 286 Conn. 152, 162, 943 A.2d 391 (2008). Thus, the statute did not abrogate a plaintiff's ability to sue a landlord for dog bite injuries under theories of common-law negligence or premises liability. See Giacalone v. Housing Authority , supra, at 401–403, 51 A.3d 352.
Our Supreme Court in Vendrella , however, declined to classify a horse as presumptively dangerous and refused to hold its keeper strictly liable for the harms it caused. Vendrella v. Astriab Family Ltd. Partnership , supra, 311 Conn. at 307–308, 87 A.3d 546. Instead, the court determined that because "the plaintiffs' evidence ... created a genuine issue of material fact as to whether horses have a natural inclination to bite humans, the case must be submitted to the trier of facts so that it may decide as a matter of fact whether the plaintiffs have met their burden of proof on that issue and, if so, whether the defendants were negligent in controlling [the horse]." (Emphasis in original.) Id., at 308, 87 A.3d 546. Hence, the court held that it was for the trier of fact to determine whether the "plaintiff's injuries were foreseeable and, if so, what the appropriate standard of care was, whether the defendants breached that standard of care and, if they did, whether the breach was a proximate cause of the minor plaintiff's injuries." Id. ; see also Hope v. Valente , supra, 86 Conn. at 304–305, 85 A. 541 (holding that "[u]nder the facts claimed to have been proved it was proper to leave it to the jury to determine whether, regardless of the viciousness of the defendant's horse, he was negligent in leaving it in the street in the manner claimed").
I arrive at a conclusion similar to that of our Supreme Court in Vendrella . I do not posit that all pit bulls are vicious, nor do I contend that a landlord is or should be strictly liable for injuries caused by a tenant's pit bull. Indeed, if the pit bull in the present case was known to lick affectionately every passerby and the defendant had observed such behavior, then it is unlikely that the trier of fact would find that the defendant had constructive knowledge that the dog posed a danger to the other tenants.
Furthermore, I agree with the court in Vendrella and other courts that the fact that an animal is of a certain class—or, in the present case, breed—may create a genuine issue of material fact as to whether a landlord, who owed a plaintiff a duty of care, had constructive knowledge of the vicious propensities of the animal that caused harm. In the present case, whether the defendant had constructive knowledge that this dog had vicious propensities must be determined by the totality of the circumstances presented by the case. In making the factual determination regarding whether the defendant knew or should have known that the dog was vicious, I am not prepared to say that it is irrelevant as a matter of law that the dog is a member of a breed that presents heightened danger to others.
I disagree with the majority's suggestion that I am somehow intruding on a policy decision that should be left to our Supreme Court or the legislature. See footnote 2 of the majority opinion. Although either of those institutions is free to weigh in as a matter of policy on this issue, there simply is nothing inappropriate in this court determining, as a matter of common sense and factual relevance, that the breed of the dog is a fact that bears upon the question of whether the landlord had constructive knowledge of the dog's vicious tendencies.
In the present case, the defendant conceded at his deposition that pit bulls are widely known to be aggressive and dangerous dogs. In my view, the behavioral characteristics of the pit bull breed, along with other evidence before the court, create a genuine issue of material fact as to whether the defendant had constructive knowledge of the vicious propensities of the dog that harmed the plaintiff. Accordingly, I concur in the decision to reverse the summary judgment rendered in favor of the defendant.
The following exchange occurred between the plaintiff's counsel and the defendant:
"[The Plaintiff's Counsel]: Mr. Tsiongas, I mean, do you agree that pit bulls are widely known to be aggressive and dangerous dogs?
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"[The Defendant]: Well, I mean, I'm sure they are. A lot of people think so. I mean, I don't know. I guess it depends on the dog.
"[The Plaintiff's Counsel]: Do you know that pit bulls have been banned on U.S. military bases?
* * *
"[The Defendant]: No, I didn't know that.
"[The Plaintiff's Counsel]: All right. Did you know that the New York City Housing Authority, which is responsible for providing safe housing for 400,000 New Yorkers [in] around 328 housing projects bans pit bulls from its properties?
* * *
"[The Defendant]: No.
"[The Plaintiff's Counsel]: Do you know why [it] might do that?
* * *
"[The Defendant]: Okay. I don't know.
"[The Plaintiff's Counsel]: Do you have any idea?
* * *
"[The Defendant]: Well, I mean, I'm sure because [it has] problems with them. I mean, I don't know.
"[The Plaintiff's Counsel]: What kind of problems?
* * *
"[The Defendant]: All right. Well, I mean, I don't know what problems.
"[The Plaintiff's Counsel]: You don't know what problems pit bulls—
"[The Defendant]: Well, I'm sure some problems. Maybe they're considered a mean dog, or people abuse them. I don't know. I mean—
"[The Plaintiff's Counsel]: You said something, they may be a mean dog because people abuse them. What do you know about abused dogs?
* * *
"[The Defendant]: Well, I mean, from what I know is what I hear in the news, you know, people use them for fighting, you know, this and that. That's about it.
"[The Plaintiff's Counsel]: What happens to a dog, do you know what happens to a dog if it's been used in fighting?
"[The Defendant]: Well, any dog that's been, you know, abused or used in fighting, it's probably going to be mean, or hurt, or, I don't know. I mean—
* * *
"[The Plaintiff's Counsel]: Do you agree that dogs that are used in fighting might be mean?
"[The Defendant]: Sure. Yes. I'm sure, yes."