Opinion
LLICV116005280S.
11-07-2012
Delanie KEELEY, PPA Cassie Keeley v. ST. JOSEPH'S ROMAN CATHOLIC CHURCH CORPORATION.
UNPUBLISHED OPINION
JOHN A. DANAHER III, J.
On July 12, 2012, the defendant, St. Joseph's Roman Catholic Church Corporation, filed a motion for summary judgment, along with a supporting memorandum of law and evidentiary support, seeking judgment on the second count of the plaintiff's complaint. The plaintiff, Delanie Keeley PPA Cassie Keeley, filed an objection to the motion on October 2, 2012, to which the defendant replied on October 11, 2012. This matter came before the court and was heard on October 22, 2012. The motion for summary judgment is granted.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2012, the plaintiff filed a third amended complaint, alleging a single count of negligence against the defendant. The complaint alleges that the defendant owns and operates St. Anthony's School. On September 20, 2010, the plaintiff, a minor child, and her mother were attending a St. Anthony's cross-country team practice at Northwest Regional School # 7. The plaintiff alleges that, while attending that practice, she was bitten by a dog owned by Diane Hayden, the defendant's cross-country coach.
The plaintiff had filed a prior complaint that made claims, in the first count, against the Archdiocese of Hartford. That count was withdrawn and the third amended complaint consists only of the second count that is the subject of the defendant's motion.
There is no dispute that the plaintiff was not a student at St. Anthony's School and that the incident did not take place on school property.
The complaint alleges that the defendant knew or should have known that Hayden brought the dog to cross-country practices and meets, allowed the dog to roam without supervision, and that the defendant knew or should have known of the dog's vicious propensities. The complaint further alleges that the defendant's failure to ensure that the dog was not brought to practices, the failure to supervise and control the dog, and the failure to warn the plaintiff of the risks associated with the dog all establish that the defendant was negligent.
II
PARTIES' ARGUMENTS
The defendant asserts that there are no genuine issues of material fact that it did not own or harbor the dog, that the incident did not occur on its property, that it had no control over the property where the incident occurred, and that there is no evidence that the dog previously exhibited any dangerous tendencies. The defendant supports its motion with affidavits by the St. Anthony School principal and a priest associated with the defendant, as well as with portions of Diane Hayden's deposition transcript.
In contrast, the plaintiff contends that, even if the defendant was not the owner or keeper of the dog, the trier of fact could find that the defendant was negligent in failing to take reasonable precautions to protect against the incident that took place. The plaintiff also asserts that she has pleaded sufficient facts showing that the defendant knew, or should have known, of the dog's vicious tendencies. Nonetheless, the plaintiff argues that she is still conducting discovery in the hope of establishing factual support for her claims that the dog possessed vicious tendencies and that the defendant knew or should have known of those vicious tendencies.
The plaintiff relies on Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), for the proposition that Connecticut courts are broadening the range of those who owe a duty to plaintiffs in dog bite cases. She claims that the defendant had a duty to protect minor children from unvaccinated dogs, as well as a duty to know whether or not dogs being brought around school children posed any threat.
III
DISCUSSION
A
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 595-96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). " [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." (Internal quotation marks omitted.) Id., at 596.
" The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted .) Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005). " A material fact is a fact which will make a difference in the result of the case ... [I]ssue-finding, rather than issue-determination, is the key to the procedure ... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
" The courts hold the movant to a strict standard. 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998). " Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).
B
Analysis
At common law, only the owner or keeper of a domestic animal owed a duty of reasonable care to others. Stokes v. Lyddy, 75 Conn.App. 252, 265-66, 815 A.2d 263 (2003). However, both parties identify authority for the proposition that, under certain circumstances, landlords, who are not the owners or keepers of dogs that have bitten others, have been found to owe a duty of reasonable care based on a premises liability theory. The plaintiff argues that the facts of the present case are closely analogous to those premises liability cases and so summary judgment cannot be granted.
In Giacalone v. Housing Authority, 306 Conn. 399, 51 A.3d 352 (2012), our Supreme Court recently provided a thorough discussion concerning the outer limits of common-law negligence claims against non-owners of dogs. " As a matter of well settled common law, [i]t is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control ... The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe. The prevailing common-law conception of the dangerous conditions implicated in this duty, moreover, certainly is capacious enough readily to encompass threats from animals, including known vicious dogs ... [A] landlord, in exercising the ... duty to alleviate dangerous conditions in areas of a premises over which it retains control, must take reasonable steps to alleviate the dangerous condition created by the presence of a dog with known vicious tendencies in the common areas of the property.
" More fundamentally, a vicious dog may qualify as a dangerous condition under the traditional, common use of this term because this court has long recognized that a landlord's common-law obligation to alleviate known dangers exists independent of the specific source of that danger ... Whether a dangerous condition is created by rats, snow, rotting wood or vicious dogs, these differing facts present no fundamental ground of distinction. What defines the landlord's duty is the obligation to take reasonable measures to ensure that the space over which it exercises dominion is safe from dangers, and a landlord may incur liability by failing to do so." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 407-08.
The court went on to distinguish Giacalone from Stokes v. Lyddy, supra, 75 Conn.App. at 252, on which the Giacalone trial court relied for the proposition that common-law negligence liability extends only to owners or keepers of dogs. Giacalone v. Housing Authority, supra, 306 Conn. at 408-09 n. 4. " In Stokes ... the plaintiff was bitten by a dog on a public sidewalk and subsequently brought an action against the landlords of the dog's owner ... [T]he Appellate Court rejected the plaintiff's premises liability theory on the grounds that [t]he plaintiff [admitted] that the attack occurred away from the leased property. Likewise, the plaintiff [failed] to provide evidence that the attack occurred within any common area under the defendants' control. The plaintiff [admitted] that the attack occurred away from the leased property, on a public sidewalk. Additionally, the plaintiff [failed] to provide evidence that the attack occurred within any common area under the defendants' control. Therefore, under the theory of premises liability— that a landlord has a duty to maintain property he controls in a reasonably safe manner the defendants owed no duty to the plaintiff ... More fundamentally ... Stokes makes clear that the Appellate Court's reasoning regarding the limits on common-law liability for dog bites does not extend to abrogating the common-law duty of landlords to keep common areas reasonably safe, including from dangerous dogs. Stokes, that is to say, provides no support for the notion that a landlord who does not keep or own a dog is therefore immune from liability if the dog harms a tenant, even if the landlord knew of the danger posed by the dog, failed to take measures to alleviate the danger, and an attack subsequently occurred in the portion of the premises over which the landlord maintains control." (Citation omitted; internal quotation marks omitted.) Id., at 409 n. 4. In contrast, in Giacalone, " the plaintiff alleged that the attack occurred on property owned by the defendant, and the complaint, though not specific, is consistent with the attack occurring on a part of the property under the defendant's control." Id.
Thus, a non-owner may be liable for the actions of a dog known to be vicious only 1) when the incident occurs on property controlled by the non-owner of the dog and 2) the non-owner knew of the dog's vicious tendencies. See id., at 408-09 n. 4. In the present case, there is no dispute that the incident did not occur on the defendant's premises, nor is it alleged that the defendant had any control over the premises where the incident occurred. The defendant has introduced evidence that it was not aware that the dog was present at any cross-country practice session, let alone the session where the incident occurred. Finally, the defendant has offered evidence that, not only was it unaware of the dog's alleged vicious tendencies, there is no evidence that the dog had any vicious tendencies prior to the incident that gave rise to this complaint. Thus, the defendant has met its burden of demonstrating that there are no genuine issues of material fact that would prevent the entry of summary judgment.
The plaintiff, on the other hand, offered virtually no rebuttal evidence in support of her objection to the motion for summary judgment. The plaintiff has offered only " mere speculation or conjecture as to the true nature of the facts ..." Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn.App. at 582. Once the moving party has met its burden, merely claiming that issues of fact exist is insufficient to successfully oppose a motion for summary judgment. In fact, at oral argument, the plaintiff acknowledged that she currently does not have any evidence that the defendant knew that the dog was present at the cross-country practice, that the defendant knew that the dog had vicious tendencies, or that the dog even had vicious tendencies. Rather, the unrebutted evidence offered by the defendant indicates that the dog had never bitten, or even attempted to bite, anyone prior to the incident that gave rise to this complaint.
In addition to producing some of the same evidence that the defendant offered in support of its motion for summary judgment, the plaintiff supported her objection with photos of the plaintiff, taken after the dog bite incident, and additional portions of Diane Hayden's deposition transcript.
The plaintiff indicates that she plans to continue conducting discovery in an effort to uncover some evidence that the defendant knew of the dog's presence at the cross-country practice, and that the defendant knew or should have known of the dog's vicious tendencies. However, the plaintiff fails to take into account the scheduling order agreed to and entered into by both parties on March 29, 2012. The scheduling order provided that all responses to discovery requests be completed by June 11, 2012, and that all depositions of fact witnesses and parties be completed by June 29, 2012. The plaintiff did not seek any enlargement of the scheduling order.
For all of the foregoing reasons, the defendant's motion for summary judgment is granted.
So ordered.