Opinion
No. CV 07-5011540S
June 17, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants filed Motion for Summary Judgment (motion #108) claiming that there are no questions of fact presented by the complaint or requiring adjudicating by the Court.
The plaintiff filed a brief in Opposition to Motion for Summary Judgment (116) claiming that there are genuine issues of material facts which cause summary judgment to be inappropriate for the just adjudication of the plaintiff's claims. In her complaint dated October 3, 2007, the plaintiff claims that she was walking by premises located at 565 Knowlton Street, Bridgeport, Ct. On that date two dogs attacked her and bit her. The plaintiff claims that the defendants, Duarte Borges and/or Bridgeport Paving Company and/or Bridgeport Paving, LLC were the owners and keepers of the dogs. The plaintiff claims that the defendants are liable under Connecticut General Statutes Section 22-357. The plaintiff claims at the time she was not committing a trespass or other tort, nor was she teasing, tormenting or abusing the dogs.
The defendants argue that they are not the owners or the keepers of the dogs. They argue that they exercised no control over the dogs, did not harbor the dogs, did not provide the dogs with shelter, food or care nor did they give their permission for the dogs to be on their property. The defendant did pull the dogs off of the plaintiff when they saw the plaintiff being attacked.
Summary judgment is an appropriate remedy when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The procedure of summary judgment is designed to expedite a litigation proceeding and eliminate delay and expense where there is no real issue to be tried. See Wilson v. New Haven, 213 Conn. 277 (1989). Both the moving party and the party in opposition may rely on pleadings, affidavits and discovery materials, and the moving party shall, and the opposing party may, file appropriate memoranda of law. See Practice Book §§ 11-19, 17-45 and 17-46. The party seeking summary judgment has the burden of showing that no issue of material fact exists, and the party opposing the motion must substantiate its claim that a material fact issue exists. See Home Insurance Co. v. Aetna Life Casualty, 235 Conn. 185 (1995).
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 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." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Id.
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
"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." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). See also Hartford Accident v. Ace American Reinsurance Co., 284 Conn. 744, 755, 936 A.2d 226 (2007).
"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." Practice Book § 17-49. "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 . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The plaintiff is seeking relief under Connecticut General Statute Section 22-357 which reads as follows:
Sec. 22-357. Damage to person or property.
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, 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.
In Auster v. Norwalk United Methodist Church, 286 Conn. 152 (2008), the court did a detailed analysis of what is meant by keeper of a dog.
A keeper is defined as "any person, other than the owner, harboring or having in his possession any dog . . ." "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). "[P]ossession [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). "One who treats a dog as living at his house and undertakes to control his actions is [a] . . . keeper . . ." McCarthy v. Daunis, 117 Conn. 307, 309, 167 A. 918 (1933); see also Buturla v. St. Onge, 9 Conn.App. 495, 497-98, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987).
"As the Appellate Court indicated, a person will not be deemed to be a keeper of a dog under § 22-357 unless that person exercises control over the dog "in a manner similar to that which would ordinarily be exerted by the owner." Auster v. Norwalk United Methodist Church, 94 Conn.App. 622; accord, Hancock v. Finch, 126 Conn. 123; cf Buturla v. St. Onge, supra, 9 Conn.App. 497 (citing authorities defining "harborer" as "one who treats a dog as living in his home and undertakes to control the dog's actions"). In other words, a nonowner of a dog cannot be held strictly liable for damage done by the dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the the time the damage was done. As we indicated in Falby, such proof generally will consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred. See Falby v. Zarembski, supra, 221 Conn. 19. Thus, a landlord is not the keeper of a dog for purposes of § 22-357 merely because the landlord acquiesces in the presence of the dog on leased premises, or because the landlord has the authority to require that the dog be removed from the premises in the event that it becomes a nuisance, or even because the landlord has the authority to require that certain conditions be placed on the use of the dog by its owner. See Buturla v. St. Onge, supra, 496-98." Auster v. Norwalk United Methodist Church, supra, 162-63.
"Indeed, to construe the term "keeper" more liberally would produce an anomalous result, namely, that both the nonowner of a dog and its owner would be held to the same "heavy liability imposed by [§ 22-357]"; Hancock v. Finch, supra, 126 Conn. 123; even when the evidence establishes that the former exercised considerably less control over the dog than the latter. Such a result also would be inconsistent with the principle that statutes in derogation of the common law, including § 22-357; are to be construed narrowly. See, e.g., Vitanza v. Upjohn Co., 257 Conn. 365, 381, 778 A.2d 829 (2001). As we recently have reiterated, "[w]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . [T]he operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 109, 931 A.2d 859 (2007). We therefore are not free to construe the term "keeper" so broadly as to include persons authorized to exercise only limited dominion and control over a dog. Such persons include a landlord who, like the defendant in the present case, may impose some restrictions on the tenant's use and handling of the dog but who otherwise bears no responsibility for the care, maintenance or control of the dog." Auster v. Norwalk United Methodist Church, supra, 286 Conn. 163-64.
The plaintiff argues that the control over the dogs which the defendant exhibited was (1) that a gentleman came out of the property and helped remove the dogs from her and (2) that the defendant yelled at the dogs and that they seemed to obey his commands and (3) that the dog ran back onto the property of the defendant. Any control which the plaintiff is claiming is events which occurred during and after the attack, namely the assistance which the defendants gave to the plaintiff. If the court were to adopt this definition of control it would have a chilling effect on persons who witness attacks and their inclination to render assistance.
The defendants state that they are not the keeper or owners of the dogs. They further state that they never provided shelter, refuge, food or care to the dogs. They further state that they never gave anyone permission to leave the dogs on their property. These are not merely conclusory statements. They are statements made based on personal knowledge. In fact the statements of the plaintiff are insufficient to establish that the defendants were the owners or keepers of the dogs.
The defendants have established that there is no genuine issue of material fact. Accordingly, the motion for summary judgment is granted.