Opinion
HHDCV156057050S
08-08-2017
Stacey Violette v. Fahmida Momen et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (##146, 147)
Robert B. Shapiro, J.
This personal injury action is before the court concerning two motions for summary judgment filed by defendant Leslie R. Richardson. The court heard oral argument on June 26, 2017. After consideration of the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons stated below, the motions are denied.
I
Background
The plaintiff's second amended complaint (#128) alleges the following relevant facts. The plaintiff alleges that she was driving on Foster Street in South Windsor on or about January 7, 2013, when Richardson's dog ran out into the street in front of the plaintiff's car. In Count One, she alleges that she controlled her car to a stop, and was then struck from behind by a vehicle owned by defendant Muhummad Momen and operated by defendant Fahmida Momen. In Count Two, the plaintiff claims Richardson is strictly liable under General Statutes § 22-357, the dog bite statute. The Momens filed an amended third party complaint (#125), in which they seek indemnification from Richardson as a third-party defendant.
Additional references to the factual background are discussed below.
II
Standard of Review
" 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact is [a] fact that is significant or essential to the issue or the matter at hand . . . [A] material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Voris v. Middlesex Mut. Assur. Co., 297 Conn. 589, 601, 999 A.2d 741 (2010).
III
Discussion
In support of his two motions, Richardson argues that (1) his dog did not do any damage to the plaintiff, and (2) as a third-party defendant, he could not have had exclusive control over the Momen vehicle. The plaintiff argues in response that a genuine issue of material fact exists as to whether Richardson's dog did damage, and the Momens argue that Richardson was in exclusive control of the dog, which was the cause of the situation leading to the plaintiff's injuries. The court addresses these motions separately below.
A
General Statutes § 22-357 provides in relevant part: " If any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for the amount of 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."
The court is guided by appellate authority. In Granniss v. Weber, 107 Conn. 622, 624, 141 A. 877 (1928), " while the plaintiff was driving his automobile on a highway . . . a dog . . . sprang in front of the car and by that act overturned it, injuring the plaintiff and damaging the automobile." The Supreme Court held that the conduct of the dog in that case " was voluntary and either vicious or mischievous, instead of involuntary or innocent" and fit within the dog bite statute; id., 630; and, therefore, the dog " did" damage, because it brought about, produced as an effect or result, effected, or inflicted the plaintiff's injuries. Id., 626.
The court, however, also referenced a Wisconsin case and distinguished it from the case before it, where " the dog merely attempted to cross the road ahead of the plaintiff's automobile, evidently misjudged the speed of the car, and was run into by the plaintiff, who thereby lost control of the car. The court held that the statute imposed liability only for vicious or mischievous acts of the dog, and not for innocent acts, and that the facts of the case brought it within the latter class. The conduct of the dog in the present case cannot fairly be assigned to the category of innocent acts; it was palpably voluntary and actuated by vicious or mischievous propensities, for the injurious results of either of which our statute gives redress." (Internal quotation marks omitted.) Granniss v. Weber, supra, 107 Conn. 628.
" It is urged that the meaning of the words 'do any damage' is not broad enough to cover a case where, as here, it is claimed, at most, that the sudden advent of the dog into the path of the car and the resulting collision caused the damage. However, the definition of 'do' includes 'to bring about; to produce, as an effect or result; to effect; to inflict.'" Id., 626.
" Section 22-357 renders the owner or keeper of a dog strictly liable to third parties for injuries that the dog caused through its own volitional conduct that is either vicious or mischievous rather than innocent or involuntary." (Emphasis added; internal quotation marks omitted.) Weihing v. Preto-Rodas, 170 Conn.App. 880, 885, 155 A.3d 1278 (2017).
Previously, in Atkinson v. Santore, 135 Conn.App. 76, 81, 41 A.3d 1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012), the Appellate Court declined to extend the interpretation of " does any damage . . . to mean proximately causes any damage, without any limitation as to how such damage is done." (Citation omitted; internal quotation marks omitted.) Citing Granniss v. Weber, the court stated that " our courts have long held that the statute applies only to a dog's volitional conduct that is either vicious or mischievous rather than innocent or involuntary . . . This limitation is rooted in the purpose of the statute, which is to assign full responsibility for the special dangers arising from the natural behavior of dogs . . ." (Citation omitted; emphasis added.) Id. The court further opined that " [s]trict liability appropriately is imposed on dog owners and keepers for damage caused by the volitional and vicious or mischievous conduct of their dogs because it is reasonably foreseeable that dogs as a species will engage in such inherently dangerous behavior. Strict liability is not imposed, by contrast, for damage caused by the involuntary or innocent behavior of dogs because no special risk of harm foreseeably arises from such passive, nonaggressive behavior . . . [S]trict liability under § 22-357 does not extend to damage caused by a dog's merely passive, and, thus, innocent or involuntary, behavior." (Footnotes omitted.) Id., 82-83. The Appellate Court therefore affirmed the trial court's granting of the defendant's motion for summary judgment because the act of the dog in question was passive rather than active, after the plaintiff was potentially exposed to rabies due to her contact with the dog. See id., 84.
In Rolli v. Peloguin-Peirano, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000781, (February 24, 2005, Silbert, J.) (38 Conn.L.Rptr. 790), the plaintiff alleged that she was thrown to the ground when her dog began to jerk around after being surprised by the defendants' dog. The question before the court was " whether the defendants can be held liable for damage done to the plaintiff when their dog [was] alleged to have been not the direct, but rather the indirect cause of that damage." Id. The court found that the case fell within § 22-357 because " a dog owned or kept by the defendant, on the property of the plaintiff, acting in a manner so as to frighten the plaintiff's own dog so that it pulls sharply at its leash causing the plaintiff to be injured . . . could be found by a reasonable trier of fact to have been a proximate cause of the plaintiff's injuries." Id., 791. The court, therefore, denied the defendants' motion to strike. Id.
Here, a genuine issue of material facts exists as to whether the conduct of the dog falls under § 22-357. In the context of the dog bite statute the phrase " does any damage" means " to bring about; to produce, as an effect or result; to effect; to inflict." Granniss v. Weber, supra, 107 Conn. 626. The Granniss court compared the case before it to a Wisconsin case where a dog ran into the street, was hit by the plaintiff's car, and was found to not have acted viciously or mischievously in causing injury to the plaintiff. The court determined that the case before it was distinguishable because the dog in that case actually attacked the right wheel of the plaintiff's vehicle. Therefore, the allegations in the present case are more in line with the Wisconsin case than the factual scenario in Granniss .
In the present case, although the facts are similar to those in the Wisconsin case which the Granniss court, in dicta, seemed to have categorized as falling outside the scope of the predecessor of § 22-357, the dog's actions were arguably within the natural behavior of dogs and the behavior of running into the street is accompanied by a special risk of foreseeable harm. See Atkinson v. Santore, supra, 135 Conn.App. 81-83. A genuine issue of material fact exists as to whether an unleashed dog poses a foreseeable risk of special harm, in that the dog could potentially run into the street, which action can be categorized as the voluntary, mischievous, and natural behavior of dogs.
B
A " third-party complaint must allege facts sufficient to establish at least four separate elements in order to maintain a common-law action for indemnity. These elements are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the claimant's], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the claimant]; and (4) that [the claimant] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997). With regard to the issue of exclusive control, the Supreme Court reiterated that " to maintain a common law action for indemnity, not based on statute or express contract, the facts alleged . . . must establish that the third-party defendants were in control of the situation to the exclusion of [the claimant]." (Internal quotation marks omitted.) Id., 703. " It is plausible to define exclusive control over 'the situation' as exclusive control over the dangerous condition that gives rise to the accident." Id., 706.
The Supreme Court also noted that ordinarily the applicable rule is " that the question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact." Id., 704. However, the court went on to state, " [n]onetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third-party complaint, any reasonable juror could find that the third-party defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." Id., 705.
" It is established that an allegation of exclusive control in a third party complaint for indemnification must . . . be construed as against the allegations of the [original] plaintiff's complaint because it is the grounds alleged in the [original] complaint which will be the basis for holding [the party seeking indemnity] liable to the [original] plaintiff[.]" (Internal quotation marks omitted.) Gordon v. O'Neall Construction, LLC, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 07 5003336, (May 27, 2009, Jennings, J.T.R.).
Accordingly, the court looks also to the allegations in the plaintiff's revised complaint concerning " the situation." See Skuzinski v. Bourchard Fuels, Inc., supra, 240 Conn. 706.
" The Appellate Court has utilized the following test in addressing exclusive control in the summary judgment context. 'In a two-step analysis, we first [define] the dangerous condition. Second, we . . . analyze whether a reasonable juror could [find] that [the third-party defendant] exercised exclusive control over that dangerous condition.' Valente v. Securitas Security Services, U.S.A., Inc., [152 Conn.App. 196, 205, 96 A.3d 1275 (2014)]. 'Our Supreme Court has defined exclusive control of the situation . . . as exclusive control over the dangerous condition that gives rise to the accident .' (Emphasis added; internal quotation marks omitted.) Id., at 204-05. Put another way: '[T]he situation is best understood as the condition of danger from which a foreseeable risk of harm to the [plainitff] is claimed to have arisen . . .' (Emphasis added; internal quotation marks omitted.) Id., at 206." Thomasi v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 13 6038025, (December 9, 2014, Nazzaro, J.) (59 Conn.L.Rptr. 438, 440).
Here, the Momem defendants argue that the situation was Richardson's dog running in front of the plaintiff's car, while Richardson contends that the dangerous condition was the Momen vehicle striking the plaintiff's vehicle from behind. A reasonable jury, however, could conclude that the dangerous condition from which the plaintiff's injuries arose was the dog running into the street, causing the plaintiff to abruptly stop her vehicle. See Sabino v. Sharma, Superior Court, judicial district of New Haven, Docket No. CV 03 0285825, (September 13, 2004, Tanzer, J.) (denying motion to strike apportionment complaint in multi-vehicle accident where apportionment plaintiffs claimed " the situation" was design and operation of parking lot, while apportionment defendants claimed it was apportionment plaintiff's negligent operation of vehicle; " This case, therefore, does not present a 'rare example' whereby the question of exclusive control may properly be decided as a question of law" (internal quotation marks omitted)).
Genuine issues of material fact exist as to exclusive control of the situation, specifically what constitutes the " situation" that caused the plaintiff's injuries.
CONCLUSION
For the reasons stated above, both motions for summary judgment are denied.
It is so ordered.