Opinion
HHDCV166070173S
10-16-2017
Hafiz Qadri v. Giovanni Caratinis
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT BELL COURT CONDOMINIUM ASSOCIATION, INC.'S MOTION FOR SUMMARY JUDGMENT
William H. Bright, J.
I. Introduction
This action arises out of injuries the plaintiffs, Hafiz Qadri and Amna Rashid, suffered as a result of an alleged attack by two dogs owned by the defendant Giovanni Caratinis. The plaintiffs allege that the attack occurred when Caratinis was living in a condominium owned by the defendant Al-Rahim, LLC. The unit is located in the Bell Court Condominium complex in East Hartford. The plaintiffs allege that the attack occurred in a common area of the complex, which was under the custody and control of the defendant Bell Court Condominium Association, Inc. (the " Association"). In Counts Five and Ten of their complaint, the plaintiffs allege that the Association was negligent in a variety of ways and therefore liable to the plaintiffs for the injuries they suffered.
The Association has moved for summary judgment as to both counts. In doing so, it does not dispute that the attack occurred as claimed by the plaintiffs. Nor does it dispute that the attack occurred in a common area of the complex that was under the Association's control. Instead, the Association argues that it is entitled to judgment as a matter of law because the undisputed evidence proves that the Association did not have notice that Caratinis was keeping the dogs on the property and had no notice that either dog had a vicious propensity. In response, the plaintiffs argue that there is evidence that Caratinis had lived at the complex for months. There is also evidence that the Association did not enforce its rule requiring all dogs to be leashed in common areas. The plaintiffs also claim that there is evidence that the Association had video cameras that could have recorded activity in the common area where the plaintiffs were attacked. Finally, the plaintiffs argue that the evidence shows that the two dogs were pit bulls named Homicide and Beast. From these facts, the plaintiffs argue that a reasonable jury could conclude that the Association had actual or constructive notice of the presence of the two dogs and their dangerous propensities.
For the reasons set forth below, the court agrees with the defendant that there is insufficient evidence to create a genuine issue of material fact that the defendant had the requisite knowledge to be liable for the attack. Consequently, the Association's motion for summary judgment is granted.
II. Discussion
The summary judgment standard is well established. " 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820, 116 A.3d 1195 (2015). " [T]he 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can reasonably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment." (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009). " 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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).
The evidence, viewed in light most favorable to the plaintiffs, establishes the following facts. On June 20, 2014, the plaintiffs were attacked by two pit bulls while on or near a walkway in the common area of the Bell Court Condominium complex. Both plaintiffs resided in the complex at the time of the attack. The dogs were roaming free and unleashed. Both plaintiffs suffered injuries as a result of the attack.
The common area where the attack occurred was under the possession and control of the Association. The Association's rules and regulations require that no pet is permitted in the common areas of the complex unless it is carried or on a leash. Despite this rule, dogs are regularly seen roaming free in the common areas of the complex. The complex had security/surveillance cameras at the time the plaintiffs resided there. Rule 9 of the Association's rules and regulations also provided that: " No animals, birds or reptiles of any kind shall be raised, bred or kept in any Unit or in the common areas, except that a dog or cat or other household pet, approved by the Board of Directors may be kept in Units."
The two dogs involved in the attack of the plaintiffs were named Homicide and Beast. Their owner, Caratinis, was residing at 19 Bell Court, Unit C-2 of the complex at the time of the attack. He had resided there for at least one to two months. His name was on the mailbox for Unit C-2 and one of the plaintiffs had seen him on a number of occasions. Immediately prior to the attack on the plaintiffs, Caratinis let the two dogs out of his unit into the common area to relieve themselves and to run around.
The Association argues that the above facts are insufficient to impose liability on it because they were unaware of the presence of the dogs in the complex and unaware that they had any propensity to be vicious. Resolution of this issue is controlled by our Supreme Court's decision in Giacalone v. Housing Authority of Town of Wallingford, 306 Conn. 399, 51 A.3d 352 (2012). In Giacalone, the Court addressed the question of whether a landlord who is not the " keeper" of a dog under General Statutes § 22-357 can still be liable for a dog bite under traditional common-law principles. The Court first noted that the law in Connecticut, before the adoption of § 22-357 and the imposition of strict liability on dog owners, was that " [i]f one keeps a domestic animal having neither mischievous nor vicious propensities, he will not be liable if the animal trespass[es] and do[es] injury . . . As suggested by the qualification to this proposition, the rule that the owner of a domestic animal is not responsible for the harm caused by that animal does not apply if the animal is known to be dangerous." Id., at 404. The Court then held that the adoption of § 22-357 did not eliminate the possibility of a common-law claim. " The common-law duty to restrain--and its replacement with a strict liability rule with respect to dogs--does not, however, exhaust the range of common-law theories of liability applicable to animal bites." Id., at 405-06. The Court went on to discuss the application of the common-law theory to landlords. " 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.' (Citations omitted.) Noebel v. Housing Authority, 146 Conn. 197, 200, 148 A.2d 766 (1959). 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. The scope of the term 'conditions' is well illustrated by the dangerous animals in Williams, in which an innkeeper was obligated, once placed on notice, to take measures to combat encroaching rats to maintain safe conditions at an inn. Williams v. Milner Hotels Co., supra, 130 Conn. [507] at 511, 36 A.2d 20. By the same reasoning, a landlord, in exercising the closely analogous 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." Id., at 407-08. Consequently, the court concluded: " 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." Id., at 408.
Based on the above, there is no question that the Association could be liable for the attack here if there is evidence to support each element of the common-law claim. As set forth above, the Supreme Court has made clear that one of those elements is that the landlord, or in this case the Association, had notice of the dogs' vicious or dangerous propensities. The Association has submitted an affidavit that it had no such notice. In fact, the affidavit provides that the Association did not even know that the dogs were on the property.
In response, the plaintiffs have offered no evidence that the Association had actual knowledge that the dogs were residing in the complex or that they had dangerous or vicious propensities. They instead argue that there is sufficient evidence from which a reasonable jury could conclude that the Association had constructive notice of these facts. First, they argue that the Association had constructive notice of the presence of the dogs because Caratinis had been seen on the premises for at least a month and his name was on the mailbox for Unit C-2. They argue that because Caratinis was the owner of the dogs, a jury could infer from his presence that the dogs were also present on the premises for as long. The court is not persuaded. Without some evidence as to when Caratinis acquired the dogs or brought them to the complex, concluding that they were living there for as long as Caratinis would require more than a reasonable inference. It would be the product of speculation, which neither the court nor a jury can engage in.
Furthermore, even if an inference of the dogs' presence could be drawn there is still no evidence that the Association had constructive notice of their presence. The plaintiffs have presented no evidence that anyone saw the dogs on the premises prior to the attack. In fact, while one of the plaintiffs had seen Caratinis on the premises, she never claimed to have seen the dogs prior to the attack. The plaintiffs argue that the presence of the surveillance cameras on the property would permit a jury to reasonably infer that the Association had constructive notice of the presence of the dogs because they could have been seen by watching images recorded on the cameras. There are at least three problems with the plaintiffs' argument. First, the plaintiffs have presented no evidence that the cameras were operational. Second, they presented no evidence of the areas that could be seen from the videos. Third, they presented no evidence that the dogs were ever in an area that could be seen by the cameras. Again, a fact finder would have to speculate from the mere presence of the cameras that they provided the Association with an opportunity to observe the dogs prior to the attack.
Similarly unpersuasive is the plaintiffs' reliance on the rules and regulations of the Association to establish constructive notice. The plaintiffs argue that because the rules and regulations require that the Association approve the presence of any pet, the fact finder could infer that because the dogs were there the Association knew or should have known of their presence. There is no evidence though that Caratinis sought permission to bring the dogs into the complex. If a tenant fails to follow the Association's rules and regulations, there is no basis to hold the Association liable without some evidence that the Association had some knowledge of the tenant's conduct. There is no such evidence here.
Even if one could conclude that a reasonable fact finder could infer that the Association had constructive knowledge of the presence of the dogs, the plaintiffs have presented no evidence that the Association had constructive notice of the vicious propensities of the dogs. The only evidence that the plaintiffs rely upon is that the dogs are pit bulls and named Beast and Homicide. The plaintiffs also argue that the Association knew of the general dangerous propensity of dogs because it had a rule requiring all dogs to be carried or leashed in common areas.
None of the above evidence is sufficient to create a genuine issue of material fact. Our courts have never held that a fact finder can infer a vicious propensity simply from the breed of the dog. While pit bulls have a common reputation for being more aggressive than other dogs, there has never been a presumption that they are a vicious or dangerous breed. The fact that they can and are purchased by many people as family pets suggests that is not the case. To accept the plaintiffs' argument would be to tell landlords and condominium complexes that they should bar tenants from possessing pit bulls or other breeds that have developed, in all likelihood unfairly, a reputation for being dangerous. Neither the court nor a jury can reach such a conclusion without some evidence to support such an inference. The plaintiffs have submitted none. The names of the dogs here are also insufficient to create an inference of notice because there is no evidence that the Association knew of their names. Finally, the Association's rule requiring all pets to be carried or leashed in common areas does not create an inference that the Association knew that these two dogs created a danger to the plaintiffs. The law requires that a person who controls or possesses property have knowledge of the specific danger that caused the plaintiff's injury. For example, the fact that a landlord might know of defective sidewalks on some parts of the property is not sufficient to prove notice of a defect on a different sidewalk where a plaintiff falls. Similarly, here, the fact that the Association had a rule that dogs be carried or leashed and there is evidence that other dogs were permitted to roam free is not evidence that the Association had knowledge, actual or constructive, of the specific danger posed by these two dogs.
Overall, the defendant has come forward with evidence that it had no knowledge of the presence of the two dogs or their vicious propensities. The plaintiffs have failed to meet their burden of submitting counter evidence sufficient to create a genuine issue of material fact that the Association had such knowledge, whether actual or constructive. Consequently, the Association is entitled to judgment as a matter of law.
III. Conclusion
For all of the foregoing reasons, the defendant Bell Court Condominium Association, Inc.'s motion for summary judgment as to Counts Five and Ten is granted.