Opinion
CV166061635S
07-03-2018
Clifford HURLBURT v. CITY OF WEST HAVEN
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
Presently before the court is the defendant’s motion for summary judgment on the ground that the plaintiff’s claim of nuisance fails because the plaintiff has not demonstrated that the defendant created a nuisance that caused his injuries and damages. The defendant previously moved to strike the plaintiff’s nuisance claim on September 15, 2017, which this court, Wilson, J., denied on October 28, 2017. The defendant then moved for summary judgment on January 2, 2018. The plaintiff filed a memorandum in opposition to the defendant’s motion on February 27, 2018, and the defendant filed a reply memorandum on March 12, 2018. Oral argument was heard on the motion at short calendar on March 12, 2018.
On June 1, 2018, the defendant filed a supplemental memorandum in support of its motion for summary judgment to bring to the court’s attention a recent Superior Court case, Cirillo v. Pantaleo, Superior Court, judicial district of New Haven, Docket No. CV-14-6049840-S, 2018 WL 1459943 (February 20, 2018, Fischer, J.). Apart from asserting that the case is directly on point and supports its position that it is entitled to judgment, the defendant provides the court with no analysis and the court, therefore, need not consider this argument because it is inadequately briefed. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." [Internal quotation marks omitted.] ) Moreover, even if the court were to consider Cirillo, that case is distinguishable from the present action. Discussing the plaintiffs’ allegations, the court wrote: "In the present case, the plaintiffs cannot maintain their reckless disregard for health or safety claims because their allegations cannot reasonably be characterized as rising above mere negligence, if that, as the allegations are largely legal conclusions. The plaintiffs generally allege that their neighbors, the Pantaleos, have six dogs that bark all hours of the day and night. They further allege that the town prohibits excessive barking and only allows up to four dogs before a permit is required. The plaintiffs allege that the failure to inspect the Pantaleos’ property to determine whether they were violating these rules was a reckless disregard for their health and safety ... Here, the case involves harm that may result from excessive barking. There is nothing in the record before the court, however, that the issues with the neighbors’ dogs involved a situation with such a high degree of danger or substantial risk of harm, that the defendants’ failure to inspect the property evidenced a reckless disregard for the plaintiffs’ health and safety." (Citation omitted.) Cirillo v. Pantaleo, supra, judicial district of New Haven, Docket No. CV-14-6049840-S. The excessive barking alleged in Cirillo does not rise to the level of the attacks that occurred in the present case. Furthermore, in Cirillo, there was no evidence presented to raise a genuine issue of material fact that the issues with the dogs involved a situation that posed a risk to others. Id. In the present case, however, the plaintiff has presented evidence that the town was called more than once to investigate the dog that attacked the plaintiff and that the dog had previously attacked another mail carrier. This evidence is sufficient to raise a genuine issue of material fact as to the risk posed by the dog. This case, therefore, does not support entering summary judgment on the plaintiff’s nuisance claim.
FACTS
On July 17, 2017, the plaintiff filed the operative complaint, a second proposed amended revised complaint (complaint), alleging that the defendant, the city of West Haven, was liable for the creation of a nuisance pursuant to General Statutes § 52-557n(a)(1)(C). In his complaint, the plaintiff alleges the following facts. The plaintiff is a letter carrier for the United States Postal Service and on April 16, 2015, he was making his appointed rounds near 32 Anderson Avenue in West Haven, when he was attacked by a vicious and unleashed Pit Bull. The defendant’s officials knew this dog was vicious and dangerous because of other attacks that occurred prior to April 16, 2015, including the attack of another letter carrier. These officials also knew that the dog’s owners repeatedly and habitually violated state and municipal laws regarding dogs. Despite this knowledge, the defendant refused to enforce the state and municipal laws. The defendant participated in the condition of a nuisance through its affirmative refusal to enforce the laws and sanction the dog’s owners.
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." (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, 116 A.3d 1195.
"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 ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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).
The defendant moves for summary judgment on the ground that the plaintiff has failed to demonstrate that it created a nuisance. Specifically, the defendant argues that there is no genuine issue of material fact that (1) it did not by any positive act create the nuisance complained of; (2) there is no condition that had a natural tendency to create danger and inflict injury; (3) there was no continuing danger; and (4) its use of the land was not unreasonable or unlawful. The plaintiff objects and argues that the positive act was the defendant’s affirmative refusal to take action despite knowledge of the previous attacks, and the fact that the dog had previously attacked people and continued to do so demonstrates that there was a continuing danger as well as one that had a natural tendency to create danger.
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages." (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). Additionally, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the condition was created by some positive act of the municipality; see id. ; a requirement that was codified by § 52-557n(a)(1)(C), which states in relevant part that a municipality is liable for "acts of the political subdivision which constitute the creation or participation in the creation of a nuisance." General Statutes § 52-557n(a)(1)(C); see Picco v. Voluntown, supra, 147-50, 989 A.2d 593.
In support of its motion for summary judgment, the defendant submits the signed and sworn affidavit of Eric Pimer, a sergeant with the West Haven Police Department and supervisor of the Animal Control Division, in which he attests to the following. He has been the supervisor of the Animal Control Division since August 2014, and has reviewed all the incident reports involving the dog that is the subject of the present action. Pimer Aff., ¶¶ 5-6, 11. Prior to the incident involving the plaintiff, no reported incident contained a complaint or finding that the dog had bit anyone. Pimer Aff., ¶ 12. Under the State of Connecticut, there is no dog bite unless there is a break in the skin and the plaintiff’s incident was the first reported incident of the dog biting someone. Pimer Aff., ¶¶ 13-14. Prior to April 16, 2015, the dog had not been quarantined because it had not bitten anyone and the city had no ownership, custody or control of the dog at any time. Pimer Aff., ¶¶ 16-17. The owners, rather than the city, had the exclusive responsibility of preventing the dog from coming into contact with the general public or harming anyone. Pimer Aff., ¶¶ 18-19.
Apart from this affidavit, the defendant submits no further evidence in support of its motion and largely argues that it is entitled to summary judgment because the plaintiff cannot provide evidence in support of his allegations. It is not the plaintiff’s burden, however, to prove his case on a motion for summary judgment. He is obligated to bring forth evidence to demonstrate the existence of genuine issues of material fact only once the defendant has met its burden of demonstrating the absence of any such issues. See Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 594-95, 113 A.3d 932 (2015). The defendant cannot meet its burden simply by arguing that the plaintiff cannot or will not be able to prove his case at trial. See Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 628, 57 A.3d 391 (2012) ("before the plaintiff had acquired any obligation to produce evidence that would tend to show that the defendant, in fact, had notice of the defect, the defendant had the burden of producing evidentiary support for its assertion that its lack of notice was an undisputed fact"). A review of the affidavit shows that it fails to demonstrate the lack of any genuine issue of material fact as to the plaintiff’s claim. Regarding whether there was a positive act, the affidavit does not show that there is no genuine issue that no positive act occurred but, rather, only highlights the acts that did take place, such as responding to and investigating the prior incidents. As to a continuing danger, the defendant’s argument that there is no genuine issue of material fact that the danger was continuing because the dog had not previously bitten anyone is unavailing.
Pimer states in his affidavit that the prior incidents did not involve complaints or findings of a dog bite, that there is no dog bite if there is no break in the skin, and that the incident involving the plaintiff was the first to involve the dog biting someone. Pimer Aff., ¶¶ 11-14. Apart from Pimer’s statement that "Under the State of Connecticut, there is no dog bite when there is no break in the skin"; Pimer Aff., ¶ 13; the defendant cites no statute or other authority to support this assertion. Furthermore, even if that is true, the fact that the plaintiff was the first person to be bitten does not mean the danger posed by the dog was not continuing. The plaintiff’s attack was not the first incident involving the dog going after someone, regardless of whether there was a break in the person’s skin. Unlike in Skarupa v. Hincks, Superior Court, judicial district of Hartford, Docket No. CV-10-6007467-S, 2011 WL 6989893 (December 21, 2011, Peck, J.), this was not a single occurrence. In Skarupa v. Hincks, the defendant’s dog had roamed from the defendant’s property on a single occasion and attacked the plaintiff, who was passing by on a bicycle. Id. The evidence showed that the dog had been let off her dog leash on this one occasion and the court granted the defendants’ motion for summary judgment on the plaintiffs’ nuisance count, observing that "since the incident occurred the only time there is evidence that [the dog] was freed, any danger could not be properly deemed ‘continuing.’ Id. In the present case, however, it remains a genuine issue of material fact whether the danger was continuing. Similarly, it remains a question of fact whether a dog involved in previous incidents investigated by animal control had a natural tendency to create danger and inflict injury. Finally, whether the defendant’s failure to take more action or to ensure that the dog’s owner raised the fence height, in order for the public sidewalk to be protected, renders its use of the land unreasonable, remains a question for the jury. Apart from his statement that the city had no responsibility or control over the dog, there is no mention of the city’s use of the sidewalk or evidence submitted to demonstrate an absence of a genuine issue of material fact.
The evidence submitted by the plaintiff further demonstrates the existence of genuine issues of material fact. The plaintiff submits in support of his opposition to the defendant’s motion for summary judgment incident reports completed by animal control officers for the defendant relating to the dog that attacked the plaintiff. The actions taken by the officers in responding to complaints involving the dog create an issue of fact as to whether the city, through a series of positive acts, participated in the creation and maintenance of a nuisance. See Spiegelhalter v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-09-5028239-S, (June 5, 2014, Frechette, J.) (58 Conn.L.Rptr. 402). In Spiegelhalter, the court denied the town’s motion for summary judgment, concluding that the plaintiff’s evidence was sufficient to create genuine issues of material fact as to whether the town, through a series of positive acts, participated in the creation and maintenance of a nuisance. Id., 408. The plaintiff submitted evidence that the mayor directed town officials to investigate the park to determine whether it would be beneficial to maintain the bike park as a town facility, that town officials engaged in ongoing discussions with those responsible for creating the bike park to try and keep the bike park open, and that the town ensured the bike track was covered by its insurance policy. Id. In the present case, the plaintiff’s evidence similarly demonstrate a series of positive acts and is sufficient to create genuine issues of material fact. Among other things, there is evidence that the owner was issued a ticket for a roaming dog; Pl.’s Ex. 2; that an officer instructed the owner to make his fence higher and to not leave the dog alone in the yard until this was done; Pl.’s. Ex. 4; and that notices were left and follow-up visits conducted. Pl.’s Ex. 3-5.
At short calendar, the defendant objected to the plaintiff’s submission of these reports as uncertified. The defendant made no such objection in its reply memorandum and, moreover, the same reports were previously submitted by the defendant in a prior motion for summary judgment, filed on April 28, 2017 (# 116, # 117). The court will therefore consider the reports submitted by the plaintiff.
The incident reports further establish that a genuine issue of material fact exists as to whether the danger was continuing. The incident reports show that the attack on the plaintiff was not the first time the dog had escaped its yard or been left alone in the yard. Indeed, in both follow-up reports the officer observed the dog jumping on the fences and in one visit to the property, watched the dog almost clear the fence several times. Pl.’s Ex. 4. The mere fact that there may have been no prior break in a person’s skin does not equate to an absence of a genuine issue of material fact that the dog posed a continuing danger. A jury could reasonably find that a dog with seemingly aggressive tendencies, repeatedly left alone in its yard, a yard from which the dog had escaped more than once, and who had gone after people each time, posed a continuing danger. This evidence also raises a question of fact as to whether the condition complained of had a natural tendency to create danger and inflict injury as the dog had attacked another mail carrier prior to the plaintiff. Pl.’s Ex. 3.
As previously noted, the defendant has failed to demonstrate the absence of any genuine issues of material fact. Moreover, the plaintiff’s evidence is sufficient to create such genuine issues. Accordingly, for the foregoing reasons, the defendant’s motion for summary judgment is denied.
CONCLUSION
For the forgoing reasons, the defendant’s motion for summary judgment is denied.