Opinion
No. 03-0090861-S
November 26, 2003
MEMORANDUM OF DECISION
The defendant landlord, Larry T. Whalen, Jr., moves to strike counts two and four of the plaintiffs' claim. Count two is a common-law negligence claim for injuries sustained to the minor plaintiff when she was bitten by Whalen's tenants' dalmatian dog while inside the rental property. Count four is a negligence claim brought by the minor plaintiff's mother individually, seeking reimbursement for medical costs related to the bite.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Gazo v. Stanford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997).
Connecticut Superior Court judges are split on the issue of whether a property owner can be held liable for a dog bite under common law where no control over the dog is exercised, and the Supreme and Appellate Courts have not decided the issue. Thomas v. Costanti, Superior Court, judicial district of Waterbury, Docket No. CV 000160056 (November 14, 2000, Doherty, J.). "The Superior Court cases that have held that a landlord may be liable for negligence when a tenant's dog attacks another person have based it on whether the landlord had knowledge of the dog's dangerous propensities." Id. "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." Goulet v. Defilippo, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0098594 (August 8, 2003, Aurigemma, J.); See Basnev 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, Mottokse, J.); Duhaime v. Tron Mills, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 034521 (June 30, 1992, McGrath, J.); ( 7 Conn. L. Rptr. 4); 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.) ( 2 Conn. L. Rptr. 713).
"In cases holding that a landlord may be liable in [common-law] negligence, the courts have generally found that the plaintiff had either pleaded or proved sufficient facts showing that, prior to the incident at issue, the landlord knew or should have known about a particular dog's vicious propensities. See, e.g.; Warner v. Bristol, Superior Court, judicial district of Hartford, Docket No. CV 00801193 (December 22, 2000, Peek, J.) (denied summary judgment where evidence of prior aggressive behavior gave defendant-landlord notice); Santana v. Mounds, Superior Court, judicial district of Hartford, Docket No. CV 99 591027 (March 8; 2000, Beach, J.) (denied motion to strike where plaintiff alleged landlord `knew or should have known that all pit bulls are vicious')." Schatz v. Frederick, Superior Court, judicial district of New Haven, Docket No. CV 030474928 (June 16, 2003, Harper, J.) ( 34 Conn. L. Rptr. 744). The above referenced cases illustrate the Appellate Court's decision in Stokes v. Lyddy, 75 Conn. App. 252, 815 A.2d 263 (2003), which relied upon the principle that a landlord's liability "generally depends upon proof that the landlord had actual or constructive notice of the condition prior to the time of the plaintiff's injuries." (Internal quotation marks omitted.)
Judge Harper granted a defendant landlord's motion to strike under circumstances similar to those in the present case in Schatz v. Frederick, supra. 34 Conn. L. Rptr. 744, holding that where a complaint alleges that the defendant knew or should have known about a dog's vicious propensities but the plaintiff failed to support this conclusion with any facts, the complaint was legally insufficient. Id.
In the present action, the plaintiffs allege in counts two and four of their complaint that Whalen had knowledge or should of had knowledge of the dog's dangerous propensities. The plaintiffs do not, however, allege any specific facts that support this conclusion. The only specific fact alleged is that Whalen permitted the tenants to keep the dalmatian on the property. The court finds the pleadings are insufficient in that they do not allege any facts that Whalen knew of the dog's alleged dangerous propensities and thus the defendant, Whalen's motion to strike counts two and four is granted.
BRUNETTI, JUDGE.