Opinion
No. DBD CV10-6002701 S
April 19, 2011
MEMORANDUM OF DECISION
The plaintiff brings this action under General Statutes § 22-357, commonly referred to as the "dog bite statute." Both parties filed motions for summary judgment on liability claiming that they are entitled to judgment as a matter of law. The plaintiff claims that the undisputed material facts establish that her injuries, a series of rabies shots, emotional distress and medical expenses, resulted from her having contact with defendant's dogs after the dogs were exposed to a rabid raccoon. The defendant asserts that the undisputed material facts show that the defendant's dogs did not "do any damage" to the plaintiff, as required by the statute, and therefore she cannot be held strictly liable under the statute.
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003); Roy v. Bachmann, 121 Conn.App. 220, 994 A.2d 676 (2010); Rodriguez v. Testa, 296 Conn. 1, CT Page 9808 993 A.2d 955 (2010).
"`Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists . . . [T]he existence of [a] genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof . . .' (Citations omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., 118 Conn.App. 757, 759-60, 985 A.2d 1076, cert. granted on other grounds, 295 Conn. 904, 988 A.2d 878 (2010)." Fiorelli v. Gorsky, 120 Conn.App. 298, 991 A.2d 1105 (2010). "Although the issue of causation generally is a question for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
The undisputed material facts presented in the plaintiff's affidavit and portions of her deposition testimony are as follows. On July 17, 2007, the plaintiff was babysitting for the defendant's two children at the defendant's home in Newtown. The plaintiff's affidavit states that the defendant's dogs "came in contact with" a rabid raccoon. In her deposition testimony, the plaintiff explained that when she went outside to bring the dogs in the house, she observed the dogs near the end of the defendant's driveway. The dogs were 5-10 feet from a raccoon that was laying, unmoving but apparently alive, on the grass. The plaintiff did not observe the dogs have any actual physical contact with the raccoon nor is she aware that any other person witnessed such contact. Plaintiff did not observe any scratches, blood or other marks on the dogs. To retrieve the dogs, the plaintiff walked over to where the dogs were standing, 5-10 feet from the raccoon, and corralled them into the house. While fetching the dogs and afterwards, the dogs acted normally and were friendly to the plaintiff. At no time did the dogs bite, attack, scratch, menace or otherwise directly harm the plaintiff. The raccoon was later tested and confirmed to be rabid. The plaintiff did not contract rabies but received rabies shots on the advice of her pediatrician. The plaintiff did not present any evidence that the dogs contracted rabies, although they did receive rabies shots.
The issue presented by both parties' motions for summary judgment is whether the undisputed material facts are sufficient to establish the defendant's liability claim under § 22-357. This section provides in relevant part:
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 . . .
There is no claim that the plaintiff teased, tormented or abused the dogs or that she committed a tort or trespass at the time of the incident. Accordingly, these statutory exceptions to the dog bite statute do not apply to this case.
This statute, or some formulation of it, has been in existence since 1798. Stokes v. Lyddy, 75 Conn.App. 252, 273, 815 A.2d 263 (2003); Granniss v Weber, 107 Conn. 622, 625, 141 A.2d 877 (1928). It imposes strict liability on dog owners or keepers for any damage proximately caused by their dogs. Malone v. Steinberg, 138 Conn. 718, 723, 89 A.2d 213 (1952). "[T]he principal purpose of the statute was to abrogate the common-law doctrine of scienter as applied to damage done by dogs and that the statute rested on the principle that, where one of two innocent persons must suffer loss from an act done, it is just that the loss should fall on the one who caused it rather than upon the other, who had no agency in producing it and could not by any means have avoided it." Weingartner v. Bielak, 142 Conn. 516, 518, 115 A.2d 668 (1955); Granniss v. Weber, supra, 107 Conn. 624; Murphy v. Buonato, 42 Conn.App. 239, 248, 679 A.2d 411, 417 (1996); Stokes v. Lyddy, supra, 75 Conn.App. 273. 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, 680, 239 A.2d 56 (1967). Liability under the statute is not restricted to dog bites, but rather "extends to all damage to the person which is proximately caused by the dog." Malone v. Steinberg, 138 Conn. 718, 73, 89 A.2d 213 (1952).
Because § 22-357 creates a cause of action that did not exist at common law, "`it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction . . . The court is to go no faster and no further than the legislature has gone . . . A legislative intention not expressed in some appropriate manner has no legal existence.' (Citation omitted; internal quotation marks omitted.) Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975)." Murphy v. Buonato, supra, 42 Conn.App. 249.
Though broad, the statute does not include all conduct of dogs. By its plain terms, for liability to be imposed, the statute requires that the dog "do" damage to the plaintiff or her property. General Statutes § CT Page 9810 22-357. The Connecticut Supreme Court has explained that the word "does" in the dog bite statute means "to bring about; to produce, as an effect or result; to effect; to inflict." Granniss v. Weber, supra, 107 Conn. 626, quoting Webster's New International Dictionary.
The Connecticut Supreme Court has distinguished between conduct of a dog that is "voluntary and either vicious or mischievous" and conduct that is "involuntary and innocent." Granniss v. Weber, supra, 107 Conn. 630. The Supreme Court's decision in Granniss v. Weber, and cases decided since that decision was issued, demonstrate this distinction between overt conduct by dogs and passive or innocent conduct of dogs. For example, in Granniss v. Weber, the plaintiff was injured after a barking dog jumped suddenly in front of the plaintiffs' car, causing an accident and injury to the plaintiff and damage to the car. Id. The Supreme Court found that the dog's conduct in running in front of the car could have been found by the jury to have been the proximate cause of the plaintiffs' damage. Id.; see also Malone v. Steinberg, supra, 138 Conn. 718 (the plaintiff's damage found to be caused when a barking menacing dog ran toward the plaintiff, frightening him and causing him to fall). Such active conduct of the dog in jumping in front of the car was sufficient to establish liability under the statute.
Several superior courts have applied the standard established in Granniss v. Weber, supra, 107 Conn. 630. While not controlling on this court, these cases are instructive. For example, in Scherp v. Facius, Superior Court, Judicial District of Middlesex, Docket No. CV 030100630 (November 12, 2004, Spallone, J.T.R.) [ 38 Conn. L. Rptr. 227], a factually similar case to this action, the plaintiff, who was employed by the defendant dog owner, had contact with the defendant's dog after the dog fought with and killed a rabid raccoon. The dog did not contract rabies, but the plaintiff was advised to and did receive a series of anti-rabies injections. The court determined that that the statutory phrase "if any dog does any damage" "contemplates some kind of volitional act on the part of the dog that results in damages to the victim." Id. It concluded that "[h]ere, the dog, after the incident with the raccoon, was passive and non-violent in that it was not directing any hostile, threatening, attacking or menacing behavior toward anyone including the plaintiff either directly or indirectly. The court expressly finds that the dog in this case, committed no harmful act, directly or indirectly, towards the plaintiff . . ." Id.
Similarly, in Moulton v. Coffee More, Superior Court, Judicial District of Hartford, Docket No. CV 106006205 (May 12, 2010, Wagner, J.T.R.) [ 49 Conn. L. Rptr. 874], the court granted a motion to strike under the dog bite statute where the plaintiff tripped over a dog that was lying by the front door of the defendant's establishment. The court concluded that the complaint alleged conduct by the dog that was "involuntary and innocent, as opposed to voluntary and either vicious and mischievous." Id. Because the conduct of the dog was "of a passive nature," the court determined that it was not covered by the statute. Id.
Baclaski v. D'Alessio, Superior Court, Judicial District of Tolland, Docket No. CV 065000697 (February 23, 2007, Jenkins Pittman, J.) [ 42 Conn. L. Rptr. 815], involved facts similar to the Moulton v. Coffee More case; however the courts came to different conclusions. In Baclaski, the plaintiff tripped over a sleeping dog and the court found that the dog's act in placing himself in the doorway was "voluntary," and thus, a jury could find that the "plaintiff's injuries were caused by the dog." The court therefore denied defendant's motion for summary judgment. This court is persuaded by the approach taken by the court in Moulton v. Coffee More, which more closely followed the Supreme Court's standard in Granniss v. Weber, supra, 107 Conn. 626, and took into account whether the dog's conduct was "innocent."
Thus, to withstand defendant's motion for summary judgment, the plaintiff must establish facts sufficient to show that the defendant's dogs actually did something — that is, that the dogs did an affirmative act that was vicious or mischievous and that the act proximately caused the plaintiff's injury. If the undisputed facts establish that the dogs' conduct was passive, involuntary and innocent, then a claim under the dog bite statute cannot be sustained.
The undisputed material facts of this case derive exclusively from statements of the plaintiff, either in her affidavit or deposition testimony. Reading those facts in the light most favorable to the plaintiff, as the court must do, leads to one reasonable conclusion — that the dogs acted innocently and passively at all times and did not take any action directed at the plaintiff or the raccoons. At no time did the dogs menace, attack, frighten, bite, or otherwise harm the plaintiff. There is no evidence that the dogs attacked the raccoon or had any physical contact with it whatsoever. At all times the dogs acted normally and were friendly to the plaintiff. The plaintiff did not contract rabies but received cautionary rabies shots, at her pediatrician's urging. It is unknown whether or not the dogs contracted rabies.
Under these facts, the court finds that at all times the dogs acted involuntarily, passively and innocently, and therefore they did not "do any damage" to the plaintiff. The plaintiff's claim that liability should be imposed because her injury, the receipt of rabies shots, resulted from having contact with the dogs after the dogs were exposed to a rabid raccoon is simply too attenuated. The plaintiff's purported damage, precautionary rabies shots, was not caused by any actual conduct of the dogs.
Indeed, the dogs' conduct here is even more attenuated than that of the dog in the Scherp case. Here, the plaintiff did not produce any evidence to show that the dogs attacked or had any physical contact with the raccoon.
Thus, the court concludes that § 22-357, while intentionally broad to include a wide range of conduct by dogs, is not so broad as to encompass the factual situation presented in this case. The undisputed material facts presented are, therefore, insufficient as a matter of law to establish a claim under § 22-357.
For the foregoing reasons, the defendant's motion for summary judgment is granted and the plaintiff's motion for summary judgment is denied.