Opinion
CV176011664S
03-29-2018
Deborah CLAWSON v. Peter LAVALLEY et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
The plaintiff, Deborah Clawson, has brought this action against the defendants, Peter LaValley and Paula LaValley, alleging that the defendants’ dog caused her to suffer personal injuries. The plaintiff alleges that the defendants hired TLC Pet Services (TLC) to come to the defendants’ residence to feed their two dogs and to take them outside while the defendants were away for the weekend. On March 13, 2016, the plaintiff was at the defendants’ residence carrying out that agreement on behalf of TLC and, in accordance with the defendants’ instructions, she allowed the unleashed dogs to run in the defendants’ backyard. She alleges she suffered personal injuries when one of the dogs " ran wildly around the backyard and ran directly into the plaintiff at full speed, knocking her to the ground."
In counts one and two of the plaintiff’s complaint she alleges that the defendants were negligent because they failed to warn her about the dog’s propensity to engage in dangerous behavior and they instructed TLC to let the dogs out to run in the backyard but not to place them on a leash. In counts three and four, the plaintiff alleges that the defendants are strictly liable, pursuant to General Statutes § 22-357, because at the time of the alleged incident, the plaintiff was not committing any trespass or other tort and she was not teasing, tormenting, or abusing the dog.
General Statutes § 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 the amount of 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 ..."
On August 16, 2017, the defendants filed an amended answer admitting they owned the dog that ran into the plaintiff and that the plaintiff was not committing any trespass or other tort and was not teasing, tormenting, or abusing the dog at the time of her injury. The defendants’ answer denies they were the keepers or harborers of the dog and denies they are strictly liable pursuant to § 22-357. No special defenses were pleaded.
On September 29, 2017, the defendants moved for summary judgment on all counts, asserting: (A) they are not strictly liable because the plaintiff was the keeper of the dog at the time of the alleged incident; and (B) because they were unaware of the alleged dangerous propensities of the dog they had no duty to warn the plaintiff and did not negligently instruct her’ on how to handle the dog. In support of their motion, the defendants submitted the entire certified deposition transcripts of the plaintiff and both defendants.
On October 25, 2017, the plaintiff filed an objection to the defendants’ motion for summary judgment and a cross motion for summary judgment. The plaintiff objects to the defendants’ motion on the grounds that: (A) the defendants’ failure to plead a special defense alleging that the plaintiff was the keeper of the dog precludes their ability to move for summary judgment on that ground; (B) alternatively, a genuine issue of material fact exists as to whether the plaintiff was the keeper of the dog; and (C) a genuine issue of material fact exists as to whether the defendants were negligent under the circumstances. The plaintiff also moved for summary judgment on the strict liability counts, claiming she was not the keeper of the dog as a matter of law and that the defendants are strictly liable because they have otherwise admitted the essential elements required to establish liability pursuant to § 22-357. In support of her arguments, the plaintiff submits the entire certified deposition transcripts of both defendants and the signed and sworn affidavit of the plaintiff, dated October 5, 2017.
On November 7, 2017, while maintaining that a special defense was not required, the defendants filed a " motion for permission to amend" their August 16, 2017 answer to assert a special defense alleging that the plaintiff is barred from recovery under § 22-357 because she was the keeper of the dog at the time of the alleged incident. The plaintiff objected to the defendants’ motion to amend arguing that the defendants may not do so after moving for summary judgment and that it would be prejudicial and unfair for the court to permit the amendment.
Also on November 7, 2017, the defendants filed their reply in support of their motion for summary judgment and their opposition to the plaintiff’s cross motion for summary judgment. Opposing the plaintiff’s motion for summary judgment the defendants argued: the plaintiff’s motion was untimely pursuant to the scheduling order; their contention that the plaintiff was the keeper of the dog is not required to be pleaded as a special defense; and, even if a special defense is required, the proposed amendment cures the purported deficiency. The defendants also submitted the entire certified deposition transcript of Teresa Frazier taken after their motion was filed.
As subsequently outlined, Teresa Frazier was a part owner of TLC.
The court heard oral argument regarding the motions for summary judgment and the motion to amend at short calendar on December 4, 2017. For the reasons set forth below, the court grants the defendants’ motion for permission to amend their answer and denies both motions for summary judgment.
FACTS
The following undisputed relevant facts are supported by the submitted deposition transcripts and the plaintiff’s affidavit. The plaintiff and Frazier were part owners of TLC, which provides dog sitting and dog walking services. At some time during the week prior to March 13, 2016, the plaintiff, the defendants, and Frazier met for the first time at the defendants’ residence for a " client meeting" in order to arrange for TLC’s care for the dogs when the defendants went on vacation several weeks later. At the meeting, the defendants provided detailed oral and written instructions concerning TLC’s care for the dogs, and the parties signed a " standard form" contract. The defendants provided the plaintiff and Frazier with specific instructions on the following subjects: the provision of food, water, supplements, and medications to the dogs; where the dogs were allowed to sleep; not to walk the dogs and to let them outside in the backyard to run instead; to clean up the dogs’ waste; how to verbally command the dogs; and certain emergency procedures. The parties agreed the defendants would provide the materials and supplies required for TLC to care for the dogs at the defendants’ residence. The parties also agreed that neither the plaintiff nor Frazier would have the discretion to remove the dogs from the residence. They were to strictly abide by the defendants’ instructions.
The deposed witnesses consistently testified that the defendants provided the plaintiff and Frazier with at least two typed or written lists of instructions for the dogs on different occasions. These instructions were marked as plaintiff’s exhibits 1, 3, 4, and 5 at Paula LaValley’s deposition. These exhibits, however, are not attached to the deposition transcripts and have not otherwise been submitted by the parties. Additionally, the deposed witnesses testified that Frazier took her own written notes at the parties’ meeting concerning the instructions, but those notes are also not part of the record on summary judgment. The " standard form" contract between the parties also has not been submitted.
Subsequently, because the defendants had an emergency that required them to leave the state immediately, the parties agreed that TLC would provide care for the defendants’ two dogs from the afternoon of March 11, 2016, through the evening of March 13, 2016. The parties agreed that TLC, in exchange for an established fee, would provide breakfast for the dogs, return to let the dogs out at noon, and then return again at dinner to feed the dogs and stay overnight. Between March 11, 2016 and March 13, 2016, the plaintiff and Frazier planned to alternate who would provide care for the dogs at the scheduled times. The plaintiff stayed overnight with the dogs on the evening of March 11, 2016, fed breakfast to the dogs the following morning and stayed overnight with them on March 12, 2016. On the morning of March 13, 2016, the plaintiff fed the dogs, let the dogs outside, collected the dogs’ waste from the backyard, and disposed of the waste into a garbage can on the other side of the fence that encloses the backyard. On her way back to the house, one of the dogs ran into the plaintiff, striking her on the side of her left leg above the knee causing her to fall.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821. " 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 ... 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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
TIMELINESS OF PLAINTIFF’S MOTION
The defendants argue that the court should deny the plaintiff’s cross motion for summary judgment because it was filed on October 25, 2017, after the October 1, 2017 deadline to " file, mark ready, and argue all dispositive motions" set forth in the March 10, 2017 scheduling order. Practice Book § 17-44 provides in relevant part: " [A]ny party may move for a summary judgment ... as a matter of right at any time if no scheduling order exists ... If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order." The rule does not prohibit the court from entertaining a motion for summary judgment filed after the deadline, or restrain the court’s ability to extend the deadline. Courts have allowed motions for summary judgment filed after the scheduling order deadline when there is no prejudice to the opposing party.
On September 13, 2017, the defendants filed a motion to modify the scheduling order to extend the October 1, 2017 deadline for the filing of dispositive motions. Before the court ruled on the motion, however, on November 2, 2017, the defendants withdrew it.
See Theodore v. Lifeline Systems Co., Superior Court, judicial district of Hartford, Docket No. CV-12-6029978-S (August 19, 2014, Peck, J.) (considering cross motions for summary judgment filed three weeks after scheduling order deadline because " resolution of all the issues raised by way of these motions will not prejudice any party and will no doubt result in a more efficient trial" ); Marjam Supply Co. v. Hartford Steam Boiler Inspection & Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-10-6007706-S (June 4, 2012, Peck, J.) (considering motion for summary judgment filed five days after scheduling order deadline because plaintiff did not object, both sides had sufficient time to fully brief, and court has sufficient opportunity to consider); contra Taylor v. Barberino, Superior Court, judicial district of Hartford, Docket No. CV-07-5010769-S March 13, 2013, Schuman, J.) (denying cross motion for summary judgment as untimely because it was filed more than three months after scheduling order deadline and three months prior to trial because " the court cannot allow parties to ignore court orders, including scheduling orders, with impunity" ).
In the present case, the plaintiff moved for summary judgment in response to the defendants’ motion, on an issue raised by the defendants’ motion, i.e. who was the keeper of the dog. The plaintiff’s motion was filed before the court heard oral argument on the defendants’ motion, and while the defendants’ motion to modify the scheduling order was pending. See footnote 2 of this opinion. The issue raised by the plaintiff’s motion- who was the keeper of the dog- is virtually the same issue raised by the defendants’ motion as to counts three and four. The defendants had ample time to respond to the plaintiff’s motion and did, in fact, file an opposition and a motion to amend their answer. Further, the plaintiff’s motion will not interfere with the trial scheduled to begin in June 2018. Therefore, the court will consider the merits of the plaintiff’s cross motion for summary judgment.
II
DEFENDANTS’ MOTION FOR PERMISSION TO AMEND
Practice Book § 10-60 provides in relevant part: " (a) ... [A] party may amend his or her pleadings or other parts of the record or proceedings at any time ... (3) By filing a request for leave to file an amendment ... (b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial ..." " It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court." Miller v. Fishman, 102 Conn.App. 286, 291, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). " [Much depends on the circumstances of each case ... In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party ... The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., 293-94; see Tornaquindici v. Keggi, 94 Conn.App. 828, 843, 894 A.2d 1019 (2006).
In Miller, the trial court granted the defendant’s motion for summary judgment without considering the plaintiffs’ concurrently pending request for leave to amend their complaint and, thereafter, denied the requested amendment. Id., 289-90. The Appellate Court held that the trial court abused its discretion by failing to take the amendment into consideration when ruling on the motion for summary judgment because, inter alia, " [h]ad the plaintiffs been allowed to amend their complaint ... the basis for summary judgment would have fallen away ... [I]n light of the potential impact of the request to amend on the motion for summary judgment, the court’s failure to exercise its discretion constituted an abuse of discretion and resulted in an injustice to the plaintiffs." (Citations omitted; internal quotation marks omitted.) Id., 292-93. The Appellate Court also concluded that the trial court abused its discretion by denying the request to amend because the amendment would not have unduly delayed trial set to begin one month later and would not unfairly prejudice the defendant. Id., 294-96. The court expressly limited its holding to the facts and circumstances presented. The plaintiff has not submitted any appellate authority in contrast to Miller.
The defendants’ amendment seeks to affirmatively allege that the plaintiff is barred from recovery pursuant to § 22-357 because she was the keeper of the dog. This amendment has a potentially decisive impact on both motions for summary judgment because the plaintiff has expressly argued that the absence of a special defense is fatal to the defendants’ motion and the plaintiff has affirmatively moved for summary judgment on this issue. When the court inquired on the question of prejudice at oral argument, the plaintiff did not identify any prejudice allowing the amendment would cause. The court finds the proposed amendment is not prejudicial and unfair to the plaintiff for much the same reasons that led the court to allow the plaintiff’s untimely cross motion for summary judgment. The issue raised by the amendment is fully briefed and critical to the plaintiff’s own motion for summary judgment. The defendants’ motion for permission to amend is granted.
Because the court allows the amendment it is unnecessary for the court to decide whether the special defense is required or whether the defendants’ denial of the plaintiff’s allegation that they were the keepers of the dog is sufficient. The court, however, agrees with the defendant’s position that their denial of the plaintiff’s keeper allegation was sufficient to put the matter at issue, even though they also admitted they were the owners of the dogs. Because the plaintiff made that allegation and the defendants denied it, the defendants had the right to prove a set of facts inconsistent with the plaintiff’s allegation. Nevertheless, the better practice is to plead the defense, so that a plaintiff is clearly on notice of what the defendant intends to prove.
III
STRICT LIABILITY
Both parties have moved for summary judgment as to whether the defendants are strictly liable pursuant to § 22-357. The defendants move for summary judgment on the ground that the plaintiff was the keeper of the dog at the time of the alleged incident and, therefore, she cannot bring a cause of action against the defendant owners. In response, the plaintiff argues that she was not the keeper of the dog as a matter of law and she moves for summary judgment on the ground that the defendants have admitted the other essential elements required to establish liability pursuant to § 22-357.
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 the amount of 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 ..." Because § 22-357 does not permit a keeper of the dog to maintain a suit against the owner; Murphy v. Buonato, 42 Conn.App. 239, 250-51, 679 A.2d 411 (1996), aff’d, 241 Conn. 319, 696 A.2d 320 (1997); the principal issue raised by both motions is whether there is a genuine issue of material fact whether the plaintiff was the keeper of the dog at the time of the alleged incident.
General Statutes § 22-327(6) defines " keeper" as " any person, other than the owner, harboring or having in his possession any dog." " To harbor a dog is to afford lodging, shelter or refuge to it ... [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 ... One who treats a dog as living at his house and undertakes to control his actions is [a] ... keeper ..." (Citations omitted; internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 160-61, 943 A.2d 391 (2008). " [A] person will not be deemed to be a keeper of a dog under § 22-357 unless that person exercises control over the dog in a manner similar to that which would ordinarily be exerted by the owner." (Internal quotation marks omitted.) Id., 161. In determining whether a person is a keeper, it is necessary to consider whether that person was " feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred." Id., 162, citing Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). Importantly, the " determination of whether the plaintiff was a keeper is a question of fact ..." Murphy v. Buonato, supra, 42 Conn.App. 242.
In support of her arguments, the plaintiff predominantly relies upon Hancock v. Finch, 126 Conn. 121, 122-23, 9 A.2d 811 (1939), for the proposition that one who has " temporary custody" of the dog is not a keeper. There, the Supreme Court held that the trial court properly refused to submit the question of whether the plaintiff was a keeper to the jury because the jury could not have reasonably come to that conclusion. The plaintiff agreed, as he had on previous occasions, to " feed and water" the defendants’ dogs, which were kept in a kennel and runway behind the defendants’ house, for five days while the defendants were away. Id., 122. The dogs injured the plaintiff when, contrary to the defendants’ instruction, he let the dogs out while he was preparing their food. Id. The Supreme Court held that the plaintiff did not harbor the dogs because he did not provide lodging, shelter, or give refuge to them. Id. Moreover, the court held, notwithstanding the ambiguous nature of the word " possession," that the plaintiff did not possess the dog because " [t]emporary care of property does not rise to the dignity of possession ... To subject one in the position of this plaintiff, having the temporary custody of a dog, to the heavy liability imposed by the statute would be to go far beyond its apparent object." (Internal quotation marks omitted.) Id.
The plaintiff also relies upon several Superior Court decisions that have considered whether an individual is a keeper of a dog, however, these cases are all factually distinguishable. See Ornberg v. Butler, Superior Court, judicial district of New London, Docket No. CV-11-6011542-S (February 10, 2014, Cole-Chu, J.) (57 Conn.L.Rptr. 650) (no genuine issue of material fact that plaintiff was not keeper because she was employed by a kennel and merely let dog out and returned it to its pen, walked it for five to ten minutes, and followed others’ instructions regarding the dog’s care); Quinones v. Olesando, Superior Court, judicial district of Waterbury, Docket No. CV-06-5000744-S (July 13, 2007, Upson, J.) (granting articulation of denial of summary judgment holding that genuine issue of material fact existed as to whether plaintiff, a dog groomer, was a keeper when he was grooming it); Buchelli v. Billue, Superior Court, judicial district of New Britain, Docket No. CV-04-0526998-S (May 16, 2006, Shapiro, J.) (genuine issue of material fact existed as to whether plaintiff, a dog groomer, was a keeper when caring for dog in the presence of the dog’s owner); Prucinsky v. Evans, 47 Conn.Supp. 655, 822 A.2d 390 (2003) (defendant was not a keeper when he took the dog for a walk at a public park).
Conversely, the defendants solely rely upon Murphy v. Buonato, supra, 42 Conn.App. 246, in which the Appellate Court concluded that the trial court’s finding that the plaintiff was not a keeper was clearly erroneous. In that case, the parties agreed that the plaintiff would care for the defendant’s dog at the plaintiff’s residence for approximately one week while the defendant was away. Id., 240. The defendant delivered the dog to the plaintiff’s residence, provided the plaintiff with dog food and a chain to secure the dog in the plaintiff’s backyard, and instructed the plaintiff not to allow the dog to roam. Id., 244. The plaintiff was subsequently bitten by the dog after he untied the dog from the tree and was holding it by the collar to bring it inside. Id., 241. The trial court, relying upon Hancock v. Finch, supra, 126 Conn. 121, concluded that the plaintiff was not a keeper because the " plaintiff was merely watching the [defendant’s] dog for a short period of time while the defendant was away and that the plaintiff’s possession of the dog was subject to the specific directions for its care and feeding as provided by the defendant." (Internal quotation marks omitted.) Id., 245. The Appellate Court reversed this conclusion and held that the plaintiff " harbored" the dog because he provided it shelter and lodging at his house, and " possessed" the dog because he " took possession of the dog upon its delivery and, in doing so, assumed sole responsibility to feed and water it, to provide shelter for it, and to walk it." Furthermore, the court distinguished Hancock and held that the plaintiff possessed the dog because he " accepted full responsibility for its care and controlled each of the dog’s actions from the moment the defendant delivered it until the moment the plaintiff was bitten. Indeed, under the facts of this case, it is difficult to contemplate a scenario in which the plaintiff could have exerted a greater degree of care and control over the defendant’s dog." (Emphasis in original.) Id., 246.
The facts in the present case fall somewhere in between those involved in Hancock and those at issue in Murphy. The plaintiff arguably did not " harbor" the dog because, as in Hancock and in contrast with Murphy, she did not provide shelter, lodging, or refuge to the dog. She did care for the dog but she did so at the defendants’ residence. On the other hand, it is undisputed that the plaintiff and Frazier, on behalf of TLC, were in charge of caring for the dogs over a period of several days, albeit in accordance with the defendants’ instructions. The fact that she stayed overnight at the defendants’ residence to provide whatever care the dogs required is not dispositive, but another fact to be considered. These facts, however, do not irrefutably establish that the plaintiff exercised such dominion and control over the dogs that she " possessed" them. The defendants were also exercising control over the dogs by means of the very detailed instructions the plaintiff and Frazier were required to follow, including a prohibition on the removal of the dogs from the defendants’ premises. These instructions did not wholly eliminate the plaintiff’s control over the actions of the dogs while they were in her custody. The plaintiff did exercise some control over the dogs as she periodically fed them, let them out, decided when to bring them back in and stayed with them overnight. Whether the degree to which the plaintiff exercised control over the dogs is " similar to that which would ordinarily be exerted by the owner," based upon the surrounding circumstances, is a question of fact for the jury. Auster v. Norwalk United Methodist Church, supra, 286 Conn. 161-62. For that reason, the court denies both motions for summary judgment as to counts three and four because there is a genuine issue of material fact as to whether the plaintiff was a keeper.
IV
NEGLIGENCE
In counts one and two, the plaintiff alleges that the defendants acted negligently because they were aware that the dog would run wildly around the backyard and at people but they failed to warn the plaintiff of this behavior. The plaintiff further alleges the defendants were negligent in the instructions they gave the plaintiff to take the dogs outside but not to leash the dogs. The defendants move for summary judgment as to the plaintiff’s negligence claims on the ground that, because they were unaware of any dangerous propensities alleged by the plaintiff, they had no duty to warn her and did not negligently instruct her on how to handle the dog. , In response, the plaintiff argues that a genuine issue of material fact exists as to whether the defendants had knowledge of the dog’s propensities.
Although it is not readily apparent from the plaintiff’s complaint whether her claims sound in premises liability and/or ordinary negligence, the defendants’ arguments and supporting authorities are grounded in premises liability. In this case the distinction is immaterial because the defendants’ knowledge of the dog’s propensities is required to impose a duty under either theory. See Stokes v. Lyddy, 75 Conn.App. 252, 261, 265-66, 815 A.2d 263 (2003); Giacalone v. Housing Authority, 306 Conn. 399, 407, 51 A.3d 352, 357 (2012).
The defendants additionally argue that they had no duty to warn the plaintiff because she had " actual knowledge" of the dog’s dangerous propensities since she was a professional pet sitter who knew that dogs may act rambunctiously and come in physical contact with others. Nevertheless, they fail to submit specific legal authority supporting this argument and have not submitted evidence to establish that there is no genuine issue of material fact that the plaintiff had " actual knowledge" of the dangerous propensities of this particular dog.
On summary judgment the defendants do not contest the allegation that the dog had dangerous propensities or whether they gave no notice of such propensities to the plaintiff. The only issue raised by the defendants’ motion as to counts one and two is whether the defendants had knowledge of the alleged propensities.
" Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 257, 815 A.2d 263 (2003). " [T]he existence of a duty of care is ... a prerequisite to a finding of negligence ... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 46-47, 58 A.3d 293 (2013); Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015).
" Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence ... It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences ... [The plaintiff must prove that the dog had vicious propensities and that the owner or keeper had knowledge, or the means of knowledge, of them ... A vicious propensity is any propensity on the part of a dog that is likely to cause injury under the circumstances." (Citations omitted; footnote omitted; internal quotation marks omitted.) Mann v. Regan, 108 Conn.App. 566, 579-80, 948 A.2d 1075 (2008); Giacalone v. Housing Authority, 306 Conn. 399, 405, 51 A.3d 352 (2012). The consideration as to whether an individual has a duty to warn of a dangerous domestic animal turns upon whether " the harm was likely to result from a known behavior or propensity of the animal, and not on whether the particular type of harm previously had occurred." Allen v. Cox, 285 Conn. 603, 616, 942 A.2d 296 (2008), citing Section 509 of the Restatement (Second) of Torts. " Knowledge of one propensity may under particular circumstances give reason to know that the animal is likely to do something reasonably similar, even though he has not yet done it." (Internal quotation marks omitted.) Id.
Viewing the evidence in the light most favorable to the plaintiff, there is a genuine issue of material fact as to whether the defendants had knowledge of the dog’s alleged dangerous propensities. Although the defendant Paula LaValley testified at her deposition that there were no prior incidents in which the dog had run into her or anyone else, this fact alone does not entitle the defendants to summary judgment. See Allen v. Cox, supra, 285 Conn. 603, 616-17. Indeed, the remainder of the defendants’ deposition testimony suggests that they were both generally aware of the dog’s propensities. In particular, the defendants testified that they knew the dog: was a Catahoula, which is known to have lots of energy and loves to play; would sometimes jump on people; would run around and chase the other dog when they were let out into the backyard; and was not good on a leash. Whether these propensities were sufficient to cause a reasonable person to warn the plaintiff or provide different instructions is a question for the jury. Because there is a genuine issue of material fact concerning the extent of the defendants’ knowledge and the reasonableness of their conduct, the defendants’ motion for summary judgment as to counts one and two is denied.
CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion for permission to amend their answer and denies both motions for summary judgment.