Opinion
KNLCV166028496S
02-21-2018
Kimberly Chao v. Maria Ackley
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Calmar, Harry E., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (#118)
Calmar, J.
The defendant, Maria Ackley, moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff, Kimberly Chao, was the keeper of the defendant’s dog, which precludes the plaintiff from bringing a claim against the defendant pursuant to General Statutes § § 22-357 and 22-327(6).
The Defendant, Maria Ackley, also goes by the name of Maria Lennon.
Section 22-357 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 ... committing a trespass or other tort ..." " ‘Keeper’ means any person, other than the owner, harboring or having in his possession any dog ..." General Statutes § 22-327(6). " Harborer" includes when a person provides lodging, shelter or refuge and has possession and control of the dog. Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). It is undisputed that " a keeper of a dog is not within the class of persons that the legislature intended to protect by enacting § 22-357." Murphy v. Buonato, 42 Conn.App. 239, 250, 649 A.2d 411 (1996), aff’d, 241 Conn. 319, 696 A.2d 320 (1997). " [P]ossession [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). A person with only temporary control over a dog is not a dog’s keeper. See Hancock v Finch, supra, 126 Conn. 123; Prucinsky v. Evans, 47 Conn.Supp. 655, 659, 822 A.2d 390 (2003) (34 Conn.L.Rptr. 226).
In the present case, the defendant has failed to meet its burden of demonstrating that there exists no genuine issue of material fact with respect to whether the plaintiff was a keeper of the defendant’s dog. Similar to the court in Hancock v. Finch, supra, 126 Conn. 123, where the court concluded that the plaintiffs, having temporary custody of the dogs at the defendants’ home, were not keepers within the meaning of the statute, here, it is undisputed that the plaintiff was hired, through her employment at Rhodes Collar, LLC, to provide temporary care for the defendant’s dog at the defendant’s home. In support of its motion, the defendant relies on the plaintiff’s deposition testimony in which she testified she was in the living room with the dog after she had fed and checked the dog’s water. (Plaintiff’s Deposition, 33-34.) Further, the plaintiff testified that the dog sat in front of her, and she interacted with the dog. Id.
The defendant filed a memorandum of law in support of its motion for summary judgment, which was not accompanied by any evidence. The defendant references excerpts from the defendant’s and plaintiff’s deposition testimony, which were submitted with the plaintiff’s memorandum in opposition.
In response, the plaintiff relies on the defendant’s deposition, in which the defendant stated that she " advised [the plaintiff] that J.J. [the dog] had a can of Merrick dog food in the morning and then was free fed dry food," and she directed the plaintiff where in the house the dog should be fed and what plates should be used. (Defendant’s Deposition, 27.) The deposition testimony further provides that the defendant gave some instructions to the plaintiff regarding when the dog should be let out, and the defendant believed she gave the plaintiff some instructions as to how to take the dog off the property. (Defendant’s Deposition, 36-37; Plaintiff’s Deposition, 32.) Additionally, the defendant testified that she instructed the plaintiff where the dog was to sleep, specifically, in the dog bed in the master bedroom, and instructed the plaintiff where the dog’s toys were kept. (Defendant’s Deposition, 32.) The defendant also testified that, in the past, dog sitters who stayed at the house " would send pictures of J.J. [to the defendant] and what they were doing, and Kim was extremely good at that." (Defendant’s Deposition, 70.) The plaintiff’s deposition testimony provides that she was hired to take care of the dog at the defendant’s home, which included letting him out to go to the bathroom, feeding, and watering him. (Plaintiff’s Deposition, 27.) The plaintiff’s deposition further provides that she arrived at the defendant’s home the first night, fed the dog, and " never got that far" with respect to walking or watering the dog as she was bitten that evening. Id., 27, 33-34.
When viewed in the light most favorable to the nonmoving party, the evidence creates a genuine issue of material fact as to whether merely feeding the dog and otherwise following the defendant’s decisions regarding the dog’s care constitutes a sufficient degree of dominion and control over the dog, similar to which would be exerted by the dog’s owner, to qualify the plaintiff as a keeper. Because the defendant has not met its burden as to the issue of whether the plaintiff was the dog’s keeper, and, therefore precluded from alleging a claim under to § 22-357, the defendant’s motion for summary judgment is denied.
The plaintiff argues in the alternative that, even if the court finds that the plaintiff was a keeper, § 22-357 does not preclude the plaintiff from recovering from the defendant. This argument is addressed by the holding in Murphy v. Buonato, 42 Conn.App. 239, 250, 679. A.2d 411 (1996), aff’d, 241 Conn. 319, 696 A.2d 320 (1997), in which the court concluded " that a keeper of a dog is not within the class of persons that the legislature intended to protect by enacting § 22-357." Accordingly, the court need not address the plaintiff’s alternative argument further.