Opinion
CV186033976S
07-02-2019
Holly THISDALE v. Diane LAGREGA
UNPUBLISHED OPINION
OPINION
Knox, J.
The plaintiff, Holly Thisdale, brings this action for a dog attack that occurred on a public street on September 16, 2017. In a one-count complaint, the plaintiff alleges that the defendant, Diane Lagrega, is strictly liable under General Statutes § 22-357, as a "keeper" of the dog.
The plaintiff’s complaint can be briefly summarized as follows. The plaintiff and her companion dog, as defined in General Statutes § 22-351a, were walking in the area of 184 Old Hebron Road, Colchester, when a dog, named Lola, attacked the plaintiff and her dog. The plaintiff does not claim that the defendant owns Lola. Indeed, it is undisputed that the defendant’s tenant owned Lola. It is undisputed that the defendant owns two properties. On one parcel is a single-family residence where the defendant lived. On the second parcel is a duplex with two residential units. The tenant and owner of Lola are the defendant’s daughter, Taylor Allard, who resided with her husband and children in one unit of the duplex.
In their motion for summary judgment, the defendant denies that she was the "keeper" of Lola. In addition, the defendant claims that the fact that she owned the premises of the property where Lola resided is not sufficient to deem her a "keeper" of Lola within the meaning of § 22-357. The plaintiff filed a timely objection. The parties submitted supporting memorandum with affidavits and exhibits. The matter was heard at short calendar on June 11, 2019.
DISCUSSION
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him [or her] to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his [or her] 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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "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]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) U.S. Bank, Trustee v. Foote, 151 Conn.App. 620, 636, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014).
The plaintiff’s sole cause of action against the defendant is statutory liability. Therefore, the question at issue is whether the defendant was a "keeper" of the dog within the meaning of General Statutes § 22-327(6).
The statute defines a "keeper" of a dog as "any person, other than the owner, harboring or having in his possession any dog." § 22-327(6). It is well established that a landlord is not de facto a "keeper" of a dog that a tenant owns and keeps on the rental premises. Buturla v. St. Onge, 9 Conn.App. 495, 498, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987). In Buturla, the tenant’s dog attacked a visitor to the tenant’s rental premises. Id., 496. The court examined the role of the landlord with regard to the dog, and held "that in order to harbor or possess a dog, some degree of control over the dog must be exercised." Id., 498; see also Auster v. Norwalk United Methodist Church, 286 Conn. 152, 162, 943 A.2d 391 (2008) ("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").
The Connecticut Supreme Court in Falby v. Zarembeski, 221 Conn. 14, 602 A.2d 1 (1992), examined that portion of the statute which defines "keeper" of a dog. The Court held that "[t]o harbor a dog is to afford lodging, shelter or refuge to it ... [P]ossession cannot be fairly construed as anything short of exercise of dominion and control [over the dog] ..." (Citations omitted; internal quotation marks omitted.) Id., 19.
More recently, in Auster v. Norwalk United Methodist Church, supra, 286 Conn. 152, the court examined the term "keeper" in the context of a church, which owned the property, and allowed the resident caretaker of the church to keep a dog. The defendant’s property consisted of a church building, a parish house, and an education building. Id., 154. The church caretaker lived in an apartment in the parish house with his family and dog. Id. The defendant required the owner of the dog to keep the dog inside the caretaker’s residence during certain hours, chained to a stairwell railing at other times, and not to roam freely. Id., 154-55. As the plaintiff approached the residence, the dog escaped from the residence and bit her on the leg. Id., 155.
The court held: "[w]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction ... [T]he operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Internal quotation marks omitted.) Id., 162. Section 22-327(6), which allows the imposition of strict liability against a "keeper" of a dog that causes damage or injury to person or property, is in derogation of common law. Id., 165. The Supreme Court, therefore, held that the defendant’s regulation or restrictions on the dog were insufficient to find the church to be the "keeper" of the dog. Id.
The plaintiff also relies on Simmons v. Welch, 48 Conn.Supp. 564, 854 A.2d 114 (2003), with regard to the liability of landlords who are alleged to be "keepers" of the offending dog, pursuant to § 22-327(6). In Simmons, the landlord knew his tenant’s dog was an "outside dog" that was primarily kept on a leash or chained up in the backyard of the premises as a common area. Id., 572. By leaving the dog in the common area, the court held that there was a genuine issue of material fact of whether the landlord exercised some control over the dog. Id., 573.
In the instant case, both parties rely on the sworn statements of the defendant made in the course of her deposition. In addition, in support of the motion for summary judgment, the defendant offers the following undisputed statements of the defendant by affidavit. In September 2017, the defendant was the owner of 184 Old Hebron Road, which is a duplex. One unit of the duplex was rented to her daughter, Taylor Allard, and her family, who owned Lola. Allard and her family had sole possession and control of Lola as of September 2017. Ownership of Lola is undisputed. It is also undisputed that the defendant owned and lived in a separate residence at 188 Old Hebron Road.
In her affidavit, the defendant states that she "did not have any control or possession of Lola: Lola did not go in my yard, I did not feed Lola or walk Lola, and I did not provide her with lodging, shelter or refuge." In addition, the defendant offers the sworn testimony of the defendant taken during her deposition. The defendant testified that she considered Lola to be a friendly dog without any incidents of biting. Her deposition testimony was that Lola was typically walked outside on a leash by Allard or her husband.
The court finds that the defendant has presented evidence that she was not a "keeper" of the dog. The defendant has met her initial burden on the motion for summary judgment, thus shifting the burden to the plaintiff to "provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Robinson v. Cianfarani, 314 Conn. 521, 524, 107 A.3d 375 (2014). The plaintiff must show the existence of a material fact by concrete evidence. See Farrell v. Twenty-First Century Ins. Co., 301 Conn. 657, 667, 21 A.3d 816 (2011).
The plaintiff offers the deposition testimony of the defendant in opposition to the motion. The plaintiff claims that the defendant exercised "some degree of control" of the dog. The plaintiff relies on the testimony that Lola was taken out into the yard. However, the defendant’s testimony is that either Taylor or Steven Allard were with Lola when she was taken out. The plaintiff further claims there is an inference of control because the defendant was aware that Lola’s owner or husband also brought Lola outside into the yard without a leash. But, there is no evidence that the defendant had control or even knew when Lola was brought outside. Furthermore, the evidence was that when Lola’s owner or husband brought her outside into the yard without a leash, Lola remained in the yard.
In sum, there is no evidence that the defendant exercised "control" of the dog. This case is distinguishable from Simmons, where the evidence showed that the dog was primarily kept on a chain in the yard or common area of the premises, suggesting some control by the landlord. See Simmons v. Welch, supra, 48 Conn.Supp. 572. In this case, it is uncontroverted that whenever Lola was in the yard, the owner or her husband were with her, whether it was on a leash or not. Lola’s owner, at all times, kept Lola in her possession and control. The defendant states that it was her understanding that the owner-tenant took Lola outside without a leash at the time of the incident. Although the owner, as in Auster, lost control of the dog, it nonetheless was the owner who was exercising control of the dog. In sum, there is no genuine issue of material fact that the defendant was not a "keeper" of the dog, pursuant to the statutory definition in § 22-327(6).
Wherefore, the motion for summary judgment as to the complaint is granted.