Opinion
No. FST CV 05 4005750 S
January 5, 2007
MEMORANDUM OF DECISION
In this dog bite case the dog owners have filed a cross-complaint for indemnification (as well as an apportionment complaint) against a babysitter whom, it is said, allowed the bitten minor boy to go upon the property of the dog owners. Before the court is the babysitter's motion to strike the owners' cross-complaint. The principal issues are whether the dog owners sufficiently allege that the babysitter was the direct, immediate cause of the plaintiff's injuries, and whether she might be deemed to be in exclusive control of the situation giving rise to those injuries.
Plaintiff, Joseph Blake, a minor, by and through his parents, filed a two-count complaint against the defendants, Margaret and Robert Reeves, claiming injuries upon being bitten by the Reeves' dog. At said time Charlotte Taverna, the Reeves' next-door neighbor, was babysitting for the boy.
Hereinafter, Taverna will be referred to as "the babysitter," while the Reeveses will be referred to as "the dog owners."
In count one, plaintiff alleges that the dog owners violated General Statutes § 22-357. In his second count, sounding in common-law negligence, the plaintiff claims that the dog owners were negligent in "one or more of the following ways: (a) the [dog owners] failed to keep the premises, and their guests, safe from harm caused by their dog; (b) the [dog owners] knew, or should have known, of their dog's propensity or aggressiveness, and should have protected against it; (c) the [dog owners] failed to maintain control over or to restrain their dog."
General Statutes § 22-357 provides: "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."
The dog owners filed an answer, special defense and counterclaim. In their answer, they make no substantive admissions. In their special defense, they allege that the plaintiff's injuries were a direct result of his own negligence, saying he was teasing, tormenting and abusing the dog, as well as committing a trespass. Finally, in their counterclaim, the dog owners allege that the plaintiff committed the aforementioned trespass. The dog owners have also filed an apportionment complaint against the babysitter in which they seek apportionment of damages as to the common-law negligence second count of the complaint. Thereafter, the dog owners filed a one-count cross-complaint against the babysitter seeking common-law indemnification for any judgment rendered against them.
The babysitter has filed a motion to strike the dog owners' cross-complaint on the grounds that the complaint is procedurally improper and fails to allege the elements necessary to support a claim for common-law indemnification. The dog owners have objected to the babysitter's motion. Supplemental briefs followed the originals.
The babysitter asserts that the dog owners' cross-complaint fails to allege the elements necessary to state a cause of action for common-law indemnification. She maintains that the dog owners fail to allege that her negligence, rather than their own, was the direct, immediate cause of the dog bite. The babysitter further maintains that the owners fail to allege facts sufficient to support their claim that she was in exclusive control of the situation that gave rise to the injuries. The owners respond by arguing that because their allegations are sufficient to support their claim that the babysitter was in exclusive control of the situation, the babysitter's motion to strike should be denied.
The babysitter initially argued that the dog owners' complaint was insufficient because it was procedurally improper and because it failed to allege the existence of an independent legal relationship between the two parties. In her supplemental memorandum, however, she appears to abandon both of these arguments. In any event, the dog owners' complaint is properly before the court pursuant to Practice Book § 10-10. Further, a party seeking common-law indemnification, outside the context of workers' compensation law, is no longer required to allege the existence of an independent legal relationship. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 701-02, 694 A.2d 788 (1997). As such, the court will not address these aspects of the babysitter's initial argument.
The dog owners do not directly address whether they sufficiently allege that the babysitter's negligence, rather than their own, was the direct, immediate cause of the dog bite and the resulting injuries to the plaintiff.
"In an action for indemnity . . . one tortfeasor seeks to impose total liability upon another [tortfeasor] . . . [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Ordinarily there is no right of indemnity or contribution between joint tortfeasors . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between active or primary negligence, and passive or secondary negligence . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Citation omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999). Therefore, in order to maintain an action for common-law indemnification, the dog owners must allege facts sufficient to establish the following elements: "(1) that [the babysitter] was negligent; (2) that [that] negligence, rather than [the dog owners'], was the direct, immediate cause of the accident and injuries; (3) that [the babysitter] was in control of the situation to the exclusion of [the dog owners]; and (4) that [the dog owners] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on [the babysitter] not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 698.
"Generally, the determination of whether an act is negligent is a matter for the jury . . . as is the question of exclusive control." (Citations omitted.) Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982). Additionally, "[t]he causal relationship between a negligent act and damage is ordinarily one of fact." Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972). "Accordingly, the question of whether a party is primarily negligent and thereby precluded from indemnification from another tort-feasor is ordinarily one for the trier of fact." Weintraub v. Richard Dahn, Inc., supra, 188 Conn. 573-74. "Nonetheless, 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." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 705. Finally, in Skuzinski, the court found that "[i]t is plausible to define exclusive control over the situation as exclusive control over the dangerous condition that gives rise to the accident." (Internal quotation marks omitted.) Id., 706.
In the present case, the dog owners plead that, on the day the plaintiff was injured, the babysitter was responsible for his "safety, instruction, guardianship, and care," and that her negligent supervision of the plaintiff "caused" his injuries. Additionally, the dog owners' cross-complaint that the babysitter "caused" the plaintiff's injuries is supported by factual allegations therein, e.g., they allege that the babysitter's negligence permitted the plaintiff to trespass onto their property where, it is said, he antagonized or provoked their dog. Further, the owners allege that an electronic fence prevented the dog from leaving their property. Finally, they claim that "[a]t all relevant times, [the babysitter] was in control of the situation including the proper supervision of [the plaintiff] as well as the circumstances surrounding his trespass onto [the dog owners'] property and interaction with [the dog] to the exclusion of [the dog owners]."
These allegations, when read in the light most favorable to the dog owners, are sufficient to state a cause of action for common-law indemnification. To begin, the babysitter's argument concerning the second element of common-law indemnification is simply that the dog owners fail to allege that she was the direct, immediate cause of the plaintiff's injuries. Such an argument ignores the standard regarding the legal sufficiency of a complaint. As noted, when passing on a motion to strike, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . [A]ll well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, supra, 277 Conn. 246. Accordingly, the dog owners are not required to allege, verbatim, that the babysitter was "the direct, immediate cause" of the plaintiff's injuries. Instead, their claim that the babysitter's negligence "caused" the plaintiff's injuries, along with their supporting factual allegations, are sufficient, for purposes of a motion to strike, to establish that the babysitter's negligence has been pleaded to be the primary cause of the plaintiff's injuries.
Similarly, the dog owners' claim that the babysitter exercised exclusive control over the situation giving rise to the plaintiff's injuries is legally sufficient. Again, the issue of exclusive control is ordinarily a question of fact. Weintraub v. Richard Dahn, Inc., supra, 188 Conn. 573. Although the babysitter asserts that this case presents circumstances in which the court can conclude, as a matter of law, that the babysitter did not exercise exclusive control over the "dangerous condition," she provides no analysis or support for this position. Here, a reasonable juror could find that the "dangerous condition" was the plaintiff's interaction with the dog and/or the bite itself and that the babysitter exercised exclusive control over the plaintiff's ability to interact with the dog. While the court notes that such a finding may be unlikely, this case does not present "special circumstances" (see Skuzinski, supra) in which the court can conclude, as a matter of law, that the babysitter was not in exclusive control of the situation.
The court has not been informed, e.g., whether a visible fence supplemented the electronic one; whether the boy was a frequent or expected visitor of the dog; what the babysitter knew of the dog's (or the boy's) proclivities, etc. It may also be contested that the sitter's conduct was the mere condition. One does not envy the trial court's situation in preparing the appropriate charge for the jury.
For the foregoing reasons, the babysitter's motion to strike is denied.