Opinion
No. CV03 0283384-S
May 20, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
I FACTS
On January 29, 2003, the plaintiff, Jennifer Vincent filed a one-count complaint against the defendant Andrew Delgrego, seeking damages pursuant to General Statute § 22-357. In the complaint, the plaintiff alleges, inter alia, that the defendant's dog attacked the plaintiff's dog, causing the plaintiff to be pulled to the ground. The plaintiff alleges that as a result of the fall, she sustained personal injuries and other damages.
General Statutes § 22-357, which is entitled "[d]amage to person or property," states:
"[i]f any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action."
On March 2, 2005, the defendant filed a motion for summary judgment and a memoranda of law. The plaintiff has objected to the motion by pleading and memoranda filed March 11, 2005. Counsel provided argument to the court on April 4, 2005.
II DISCUSSION
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him, to a judgment as a matter of law. 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The defendant has moved for summary judgment on the ground that he is not the "owner or keeper" of the dog(s) that allegedly caused injury to the plaintiff as required by General Statutes § 22-357. In support of his motion, the defendant has provided to the court his sworn affidavit and a portion of an uncertified deposition transcript. In opposition to the motion, the plaintiff has supplied the court with an unsworn statement of the defendant's son.
As a preliminary matter, the court must address the uncertified deposition testimony submitted by the defendant and the unsworn statement provided by the plaintiff, Practice Book § 17-45 provides in part that the parties in support of, and in opposition to a motion for summary judgment shall file with the court sworn affidavits. In addition, the Appellate Court has recognized that "the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment pursuant to Practice Book § [17-49] . . . [The Appellate Court has] not [however] determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997). "[T]he trend in the Superior Courts is to consider certified but not uncertified deposition testimony when ruling on a motion for summary judgment . . . Courts following this trend reason that the court cannot consider . . . uncertified deposition testimony for the purposes of [a] motion for summary judgment because the transcript is not independently admissible as evidence and it fails to comply with the requirements of the Practice Book . . . This court has followed the trend and previously refused to consider uncertified deposition testimony." (Internal quotation marks omitted.) Gott v. Creed-Monarch, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274741 (September 30, 2003, Wiese, J.). The court will not consider the unsworn statement and the uncertified deposition transcript.
Practice Book § 17-41 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
In support of his motion, the defendant argues that he is entitled to judgment as a matter of law because he was not the "owner or keeper" of the dog in question. General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. In order to prevail on a claim of strict liability under this statute, the plaintiff must plead and prove, inter alia, "that at the time the plaintiff suffered her complained-of injuries, the defendant, if he or she was not a minor, was an owner or keeper of the dog that caused such injuries." Simmons v. Welch, 48 Conn.Sup. 564, 568, 854 A.2d 114 (2003). Although the term "owner" is not defined by statute, courts have defined it as meaning "the person to whom the dog belongs, in the sense that he has title to it and may lawfully have and hold it as his own personal property." Id., 569. A "keeper" is defined as "any person, other than the owner, harboring or having in his possession any dog." General Statutes § 22-327. "To harbor a dog is to afford lodging, shelter or refuge to it." Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992) (finding that defendant did not harbor dog where there was no evidence that it fed, watered, housed or otherwise cared for the dog or exercised any form of control over the actions of the dog). "[P]ossession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog] . . . (Internal quotation marks omitted.) Id.
The defendant states, inter alia, in his affidavit that on the date of the incident: "my son was visiting and was accompanied by his own dog"; (February 4, 2005, Affidavit ¶ 5.); "My son did not live at my home"; ( Id., ¶ 8.); "I did not feed, house or care for my son's dog . . ."; ( Id., ¶ 7.); "I was not the owner or keeper of this animal." ( Id., ¶ 6.) In response, the plaintiff has failed to present any credible evidence that demonstrates the existence of a disputed factual issue on the statutory requirement that the responsible party be the "owner or keeper" of the dog in question. The plaintiff has presented no credible evidence that the defendant fed, watered, housed, or otherwise cared for the dog. Nor has the plaintiff presented evidence that the defendant exercised any form of control over the actions of the dog. "Mere acquiescence in the presence of a dog on one's premises or over premises concerning which a person has control should not make that individual a `keeper' of a dog under the statute." Stupak v. Lindsey, Superior Court, judicial district of Milford, Docket No. CV97 05970 (March 2, 1999, Corradino, J.) ( 24 Conn. L. Rptr. 8); see also Falby v. Zarembski, supra, 221 Conn. 19-20 (control over premises where the dog inflicted the injuries or over employee/dog-owner by virtue of employment relationship, did not convert defendant into a keeper of employee's dog while it was present at the employment site). The defendant has sustained his burden of demonstrating the absence of any issue of material fact on that critical issue. Accordingly, the defendant is entitled to judgment as a matter of law.
III CONCLUSION
For all the reasons stated above, the defendant's motion for summary judgment is granted.
So Ordered.
BY THE COURT
Wiese, Judge