Opinion
No. CV 09 5014210
November 30, 2009
MEMORANDUM OF DECISION ON APPLICATION FOR PREJUDGMENT REMEDY
On February 23, 2009 Milton Weber was bitten on the left hand by a dog owned by James Schultz. The parties have lived across the street from each other on Belridge Road in New Britain for many years. Mr. Weber seeks damages under the "dog bite statute," Conn. General Statutes § 22-357, which makes the owner of a dog liable for damage done by the dog, "except when such damage has been occasioned to the body . . . 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 only witness to the dog's attack was Mr. Weber who testified at the hearing on his application for a prejudgment remedy that he was on his own property when bitten; that testimony was not disputed by Mr. Schultz and the other witnesses he called at the hearing. So, there was no trespass, nor was there evidence of another tort on Mr. Weber's part.
Mr. Schultz adduced evidence at the hearing, via his own testimony and the testimony of others, that Mr. Weber has been a bad-tempered neighbor, and that there was a history of hostility and aggressive behavior on Mr. Weber's part toward the Schultz family. There was no evidence, however, of hostile behavior toward Mr. Schultz's dog. Mr. Schultz testified that, on February 23, he tethered his dog outside his house by means of a steel cable, describing how the dog's tags were securely affixed. He found the cable broken when the dog bite was reported to him by Mrs. Weber, and the tags missing when the dog was returned to him by a neighbor later in the day. From this evidence Mr. Schultz argued that there must have been some "teasing" or "tormenting" of the dog on the part of Mr. Weber at the time he was bitten. The court finds this inference not reasonable and logical but speculative.
Mr. Weber seeks a prejudgment remedy in the amount of $100,000. Connecticut General Statutes § 52-278d "clearly mandates that, in seeking a prejudgment remedy, a plaintiff must show probable cause that a judgment will issue in an amount equal to, or greater than, the amount of the prejudgment remedy sought." (Emphasis added.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 147 (2008). "Section 52-278d(a) requires that a trial court make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought." Id., 145-46.
Based on the evidence introduced at the November 3 hearing on Mr. Weber's application, the court has no trouble finding that the probabilities are that he will prevail on the trial of this matter. The court cannot find, however, that it is probable that his fair, just and reasonable damages will amount to $100,000 or more. It is certainly possible that they will. Mr. Weber suffered a severe and disfiguring injury to his dominant hand, which required surgery, physical therapy and home exercises. Even now that index finger is unusable and the hand trembles, preventing his conduct of several activities of daily living. He experienced shock and pain at the time of the dog's attack and continuing pain in the weeks and months following. He is frustrated and embarrassed by his inability to engage in activities affecting his personal hygiene and will probably need some personal care and homemaker assistance from a home care agency.
On the other hand, Mr. Weber's total medical expenses are $18,500, including his surgery. Since he is retired, there are no claims for lost wages or loss of earning capacity, and no future surgery is recommended. He testified that he does not now experience pain in his hand; rather, his thumb and index finger are numb. His impairment, while unrated, is real, and a jury might be expected to compensate him for that; at 75 years of age, however, Mr. Weber's statistical life expectancy limits his potential recovery. Finally, while the court received in evidence an exhibit showing standard hourly rates for the type of home care he will probably require, there was no evidence that permits the court to estimate how much of such care Mr. Weber will require and, therefore, how much a jury might be expected to award for this element of his damages. Mr. Weber's daughter testified at the hearing that she provides much of this care now.
Mr. Weber's wife has died since the date of his injury.
Because the court cannot find that it is probable that Mr. Weber will prevail in the amount of the prejudgment remedy sought, $100,000, or a greater amount, the application for a prejudgment remedy is DENIED.