Opinion
No. CV 02 0098594 S
August 8, 2003
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants, Steven and Nicole Difilippo, have moved for summary judgment on the grounds that there is no genuine issue of material fact with respect to the common-law allegations of liability or with respect to the allegations of liability under Connecticut General Statutes § 22-357, the "dog-bite" statute.
Facts and Procedural History
This Motion came to the attention of the court upon receipt of a letter from counsel inquiring as to its status. The letter indicated that the court had taken the Motion "on the papers" on January 21, 2003. Unfortunately, the Motion had not been taken on the papers. However, the court did receive the file for review of the Motion for Summary Judgment on July 17, 2003.
The plaintiff alleges in her Complaint that on April 7, 2002 while she was walking through a portion of the woods located on the defendants' property, she was attacked by the defendants' dog and sustained injuries. She has alleged causes of action in common-law negligence and under Connecticut General Statutes § 22-357.
In support of summary judgment the defendant, Steven Difilippo, has submitted an affidavit in which he has averred that the plaintiff was on his property on April 7, 2002 without his consent or knowledge, that the plaintiff was cited by the police for trespassing on his property after the alleged incident, and that the dog in question does not have "vicious propensities."
In opposition to the summary judgment, the plaintiff submitted an affidavit in which she has averred that she was attacked and injured by the defendants' dog on April 7, 2002 and that 15 days after the attack, the dog attempted to attack her husband. The Plaintiff's Memorandum in Support of the Objection to Summary Judgment states, in part:
The Plaintiff's sworn affidavit recounts a prior attack by the Defendants' dog against her. (Third unnumbered page.)
The Plaintiff was walking through a trail in the woods which has been commonly used by others to walk, and to walk their dogs. There are no no trespassing signs posted along the trail. There are no "beware of dog" signs posted by the Defendants. The Plaintiff had previously encountered the Defendant's dog on said path through the woods. (Fifth unnumbered page.)
The foregoing facts are not contained in the plaintiff's affidavit.
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) 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. Connecticut Bank Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In order to recover damages for injuries caused by a dog bite based on common-law negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities. See Basney v. Klema, 2 Conn. Cir. Ct. 538, 544, 203 A.2d 95 (1964); Reed v. Comen, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 311292 (April 29, 1998, Mottolese, J.); Duhaime v. Tron Mills, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 034521 (June 30, 1992, McGrath, J.), 2 Conn.L.Rptr. 713; Vasquez v. Hooks, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 394001 (February 10, 1992, Schaller, J.); see also Portnoy v. King, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 087873 (November 6, 1990, Katz, J.) (denying motion for summary judgment as to common-law dog-bite liability count of complaint because landlord admitted knowledge of existence of tenant's dog and its vicious propensities, and because attack occurred in common area of premises within landlord's control).
While the plaintiff's Memorandum asserts facts that, if true, would establish that the defendants had prior knowledge of the vicious propensities of the dog, the plaintiff's affidavit does not contain those facts. Mere assertions of fact by the plaintiff's counsel are insufficient to establish the existence of a material fact, and, therefore, cannot refute evidence properly presented to the court. Maffucci v. Royal Park Ltd Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998).
Under Connecticut General Statutes § 22-357, the dog-bite statute, proof of the dangerous propensities of the dog is not required. However, the statute specifically prohibits recovery by one who is committing trespass. The plaintiff has admitted in her complaint that she was on the defendants' property when she was bitten by the dog. The defendants have submitted the affidavit of Steven Difilippo, which states that the plaintiff was trespassing on his property.
While the plaintiff's Memorandum asserts that the plaintiff was walking through a trail in the woods which has been commonly used by others to walk, and to walk their dogs, the plaintiff's affidavit contains no such facts. The mere assertion of facts in a legal memorandum or a pleading is insufficient to create an issue of fact. If the facts asserted in the Memorandum were contained in the plaintiff's affidavit, or some other proper form, then they would be sufficient to create an issue of fact under the dog-bite statute. See Verrilli v. Damilowski, 140 Conn. 358, CT Page 9333 100 A.2d 462 (1953).
Since the plaintiff's affidavit does not support the crucial facts which could defeat this summary judgment motion, and the plaintiff has failed to produce any other proper evidence to support those facts, the court would be justified in granting the defendants' Motion for Summary Judgment immediately. However, if the facts asserted in the Memorandum as to the vicious propensities of the dog and the common use of the defendants' property by others, were to be properly asserted, then the court could not grant the Motion. The court is disinclined to deprive the plaintiff of her day in court due to an oversight by her counsel. Therefore, it is hereby ORDERED:
1. The plaintiff shall submit an affidavit or other proper evidence as suggested above on or before August 29, 2003.
2. If the plaintiff fails to submit on or before August 29, 2003, such affidavit or other proper evidence, or if the affidavit does not contain facts tend to prove that the defendants had knowledge of the vicious propensities of their dog prior to April 7, 2002 and/or facts which tend to prove that the plaintiff may not have been trespassing even though she was on the defendants' property, then the court will grant summary judgment on one or both counts of the Complaint, as appropriate.
By the court,
Aurigemma, J.