Opinion
UWYCV176032992S
10-23-2017
Donald Watson, Jr. v. Karen A. Tracy
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Brazzel-Massaro, Barbara, J.
INTRODUCTION
The plaintiff Donald Watson, Jr. (hereinafter " Watson") filed this action on December 18, 2016 claiming that he received injuries as a result of a dog bite on December 11, 2014. He brought this action against two separate defendants, Karen Tracy and Mary Lou Woods. At the time of the incident in 2014, the defendant, Karen Tracy leased the house located at 28 Faber Avenue in the city of Waterbury, Connecticut. The landlord or owner of the house was Mary Lou Woods. On December 11, 2014, the plaintiff was a mail carrier with a route for mail delivery that included 28 Faber Avenue. The plaintiff was attempting to deposit mail into the mailbox on the property on December 11, 2014 when the dog on the property charged and attacked him causing injury.
The plaintiff filed this action in four separate counts alleging a statutory claim pursuant to C.G.S. 22-357 against each of the defendants (Amended Complaint Counts One and Three) and a claim for negligence against each of the defendants (Counts Two and Four).
The defendant Karen Tracy filed a motion for summary judgment with respect to the claims against her in Counts One and Two of the Amended Complaint. The plaintiff has filed a memorandum in opposition to the motion. Counsel appeared and argued the motion on October 10, 2017.
FACTUAL BACKGROUND
The defendant Karen A. Tracy was the owner of the property at 28 Faber Avenue in Waterbury on the date of the incident alleged by the plaintiff. The property consists of a single-family dwelling with property that surrounds the house. Beginning on November 1, 2014, the defendant Mary Lou Woods (Woods) entered into a lease for the property. The lease agreement indicates that the rental was for use of the premises only as a private dwelling for the co-defendant Woods and two other people. The lease was silent as to pets. The lease included a provision that $100 of the rent was applied to the opportunity to purchase the property. The lease also included a paragraph that the tenant had inspected the premises and accepted it " as is."
An argument of the plaintiff at short calendar is that the landlord was obligated to put a fence in the front yard for the dog or a barricaded area for the dog. No such requirement was contained in the lease agreement.
On December 11, 2014, the plaintiff Donald Watson Jr. was employed with the U.S. Postal Service. On this date he delivered mail to Faber Street including 28 Faber Street. He was attempting to place the mail in the mailbox on this property when he alleges the dog charged him and attacked him causing him to fall backwards over a retaining wall. The plaintiff filed this legal action against two separate defendants, Mary Lou Woods who had entered into a lease for the property, and Karen Tracy who was the owner of the house. The allegations in the two separate counts alleging statutory liability pursuant to C.G.S. § 22-357 are identical except for two separate individuals. Likewise, the allegations in the two separate counts alleging negligence as to each of the defendants are identical except as to the name of the individual.
The defendant Karen Tracy has filed this summary judgment arguing she is not the owner or keeper of the dog pursuant to the statute and therefore cannot be liable pursuant to the strict liability statute and that she cannot be liable for negligence because she is not the owner or keeper of the dog and she exercises no control over the dog. Lastly, the defendant contends that she has leased the entire property to the co-defendant and the tenant is responsible for the upkeep and maintenance of the front yard where this incident occurred.
ARGUMENT
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o 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 . . . 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).
The defendant has raised two issues in the summary judgment motion, that is, whether the plaintiff has produced any evidence that the defendant Karen Tracy is the owner or keeper of the dog which may create liability under the dog bite statute, C.G.S. § 22-357. The second argument addresses the negligence claim in which the plaintiff alleges the defendant was negligent because she failed to have appropriate fencing, enclosure and other systems for the dog; failed to have the dog properly restrained at all times; failed to either verbally or in writing warn of the dog's danger to those entering on the property and; she failed to warn or instruct the tenants or others on the property to maintain control of the dog.
The first count of the complaint is the statutory claim. This statute states in pertinent part: " If 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 . . ." The plaintiff argues that the landlord should be considered the keeper of the dog because the dog was physically on the property. However, the plaintiff was unable to provide any testimony or evidence that the landlord had any connection or knowledge of the dog. The affidavit of the co-defendant Karen Tracy indicates that she entered into a lease with the co-defendant Woods for all of the property including the yard and the house. The lease did not have a provision for pets and thus she contends that she did not harbor the dog or have any control over the dog. The parties agreed during argument that Karen Tracy is not the owner of the dog. The plaintiff however continues to argue that merely because the dog was present on the property she could be considered a keeper. There is absolutely no evidence or testimony that would support this claim and thus the motion for summary judgment as to Count One is granted.
The dispositive issue in regard to count two is whether the landlord had a duty to take steps to protect the plaintiff from the dog at 28 Faber Avenue. The claim against the landlord is pursuant to premises liability. " 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 premise 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." (Citations omitted; internal quotation marks omitted.) Giacalone v. Housing Authority, supra, 306 Conn. 407-08.
Thus, the Supreme Court Giacalone decision has clarified the law regarding the circumstances under which a landlord, who is not the owner or keeper of the dog, has a duty and may be held liable for negligence when a tenant's dog bites a person on his property. In Giacalone v. Housing Authority of Wallingford, 306 Conn. 399, 51 A.3d 352 (2012) the Supreme Court held that a landlord, who does not have direct care of or control over the dog, can be held liable for injuries caused by a tenant's dog if the dog bite takes place in the common areas of the premises and if the landlord knew of the dog's dangerous propensities . (Emphasis added.) The plaintiff alleges that he " was attempting to deposit mail in the mailbox on the property, the aforementioned dog charged toward and attacked him, causing the Plaintiff to fall backwards over a retaining wall and further causing injuries and damages to the Plaintiff." (Amended Complaint, Count Two, Paragraph 5.)
The complaint does not clearly state that the area was a common area for use of tenants and in fact, the co-defendant Woods is the only tenant in the house and unlike Giacalone it is not a multi-family house where the property contained area for the common use of all tenants that could be impacted by the presence of an uncontrolled pet.
In fact, the affidavit of the co-defendant indicates that she is not responsible for the maintenance of the area in question because it was leased wholly to Ms. Woods. The lease agreement states that the responsibility for use and upkeep of the yards is solely left to the tenant. (Exhibit 2, Paragraph 7.)
Even assuming that the area of the property is common, the law provides that a landlord has a duty to keep common areas in a reasonably safe condition. This applies to dangers posed by known dangerous dogs. The plaintiff must demonstrate that the landlord was responsible for the common area and that the landlord has knowledge, actual or constructive, of the vicious propensities of a dog kept by the tenant to find liability. The Giacalone court clearly changed the standard to require not simply knowledge of the presence of a dog, but knowledge that the dog in question has vicious or dangerous propensities.
The court looked to actual or constructive knowledge of the vicious propensity. The plaintiff in this action does not allege in his complaint that the dog at issue was one with known vicious or dangerous propensities. There is no testimony or evidence that the defendant Tracy had any knowledge that there was even a dog on the property. The lease did not include a provision for any animals and there is no evidence that at any time she saw or was provided any information that there was a dog there never mind a vicious, dangerous dog. The complaint and the discovery thereafter are completely lacking any evidence that would create any duty upon this landlord for property not under her control or for the actions of a dog for which the defendant has no knowledge or responsibility. The plaintiff's claims for negligence in Count Two assume that the defendant knew the dog was kept on the property, needed some undefined control and would present a danger that she is legally obligated to address. No facts support any of these claims and thus there is no genuine issue of material fact that would prevent summary judgment. Therefore, summary judgment is granted as to Count Two of the Amended Complaint.