Opinion
No. TTD CV 08 5002518 S
July 28, 2008
MEMORANDUM OF DECISION
The plaintiff, Cynthia Brown as guardian of her minor son Cameron Brown, applies for the issuance of a prejudgment remedy against Benjamin Campbell and Darlene Naglak. The plaintiff sues Campbell and his housemate, Darlene Naglak, for injuries allegedly sustained by Cameron as a result of a dog bite.
The amended complaint comprises three counts. The first count claims liability against Campbell under General Statutes § 22-357. The second count is against Naglak under that statute, and the third count also pertains to Naglak and alleges negligence.
A prejudgment remedy hearing occurred on June 5, 2008. Such a hearing is limited to a determination of whether there is probable cause to believe that a judgment of at least the amount sought in the application will be rendered in the applicant's favor. General Statutes § 52-278d. The hearing "is not a full-scale trial on the merits." Chen v. Bernadel, 101 Conn.App 658, 661-62 (2007). Under § 52-278d(a), a prejudgment remedy shall be granted if upon consideration of the facts before the court and taking into account any defenses, countervailing claims, set-offs, exemptions, and the adequacy of insurance, probable cause exists that judgment will be rendered in the applicant's favor. Cahaly v. Benistar Property Exchange Trust Co., Inc., 268 Conn. 264, 271-72 (2004). The court must gauge the applicant's future success or failure by weighing the probabilities surrounding both factual and legal issues. Doe v. Rapoport, 80 Conn.App. 111, 116-17 (2003).
Probable cause is "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." J.K. Scanlon v. Construction Group, Inc., 80 Conn.App. 345, 350 (2003). The concept of probable cause embraces a "flexible common sense standard" which demands neither that a belief be "correct [n]or more likely true than false." Id.
Darlene Naglak admitted that she owns the dog that bit Cameron on July 24, 2007, when the boy was three years old. There is probable cause to believe that Cameron suffered punctures to his cheek and chin as a result. He underwent treatment by his pediatrician and received emergency room services at a hospital. At the hospital, sutures were sewn to close the wounds. One suture opened prematurely. A plastic surgeon has examined Cameron and, as Cameron grows, future consultations to assess the need for additional surgery will be necessary.
Under § 22-357, the owner of a dog which injures another person is strictly liable for such damage unless the person bitten "was committing a trespass or other tort, or was teasing, tormenting or abusing such dog." Because Cameron was younger than seven years at the time of the incident, the statute provides a rebuttable presumption against these exceptions to liability. Thus the burden of proof of provocative acts is shifted to the owner or keeper of the dog when young children are bitten.
I
Based on the evidence presented at the hearing, the court finds probable cause to believe that Darlen Naglak will be liable under § 22-357 to compensate Cameron for the damages he sustained and will probably sustain in the future as a result of being bitten by Naglak's dog. The prejudgment remedy application is granted in the amount of $100,000 as to Naglak.
II
As to Campbell, the court finds probable cause to believe the following facts will be established at trial. Naglak owned the dog that bit Cameron before she, her two teenage sons, and the dog moved into the residence owned by Campbell. Campbell and Naglak had a romantic relationship when Naglak moved to his residence. Campbell is the sole owner of the residence presently shared with Naglak, her sons, and the dog.
Naglak is the sole owner of the dog, and the responsibility for feeding and caring for the dog rests with her and her sons. Campbell permits the dog to share his home and yard, but does not routinely tend to the dog's needs. He has, on occasion, fed, watered, and let the dog outdoors when Naglak and her sons are unavailable to perform tasks related to the dog's care.
On July 24, 2007, Naglak operated an informal daycare at
Campbell's residence. Cameron was one of the children entrusted to Naglak at Campbell's home. There was no evidence submitted regarding Campbell's presence at the residence at the time of the injuries. Both Naglak and Campbell deny that Campbell owns the dog. The dog was licensed solely under Naglak's name.
Section 22-357 imposes liability on the owner or a keeper of the offending canine. It is improbable that the plaintiff will prove that Campbell was the dog's owner. It is uncontroverted that Naglak owned and possessed the dog before she cohabited with Campbell. Campbell's participation in the care of the dog is limited, sporadic, and prompted by the absence of Naglak or her sons or their neglect in that responsibility.
The question then devolves into whether probable cause exists to believe that Campbell bears strict liability under § 22-357 as a "keeper." In General Statutes § 22-357(b), "`Keeper' means any person other than the owner, harboring or having in his possession any dog." Recent case law holds that this definition includes a temporal requirement before legal responsibility attaches under § 22-357.
In Auster v. Norwalk United Methodist Church, 286 Conn. 152 (2008), our Supreme Court stated that 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 time the damage was done," Id., 161-62 (emphasis added). Furthermore, evidence must be adduced "that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred." Id., 162.
"We therefore are not free to construe the term `keeper' so broadly as to include persons authorized to exercise only limited dominance and control over a dog." Id., 163. When evaluating whether a party is a "keeper," the court ought "not focus on the relationship" between the owner and putative keeper but rather must "look to the nature and extent of the control . . . over the [owner's] dog." Id. "[O]wnership of the premises where the dog lives, `unaccompanied by an evidence of caretaking of the dog or actual control over its actions' . . . is not enough to hold a . . . property owner strictly liable for damage caused by the dog." Id. "This is true whether the dog's owner is a live-in employee, a tenant or merely a friend of the [property owner]." Id., 163-64.
Unquestionably, Campbell provided shelter for the dog which had the full run of his home and yard on July 24, 2007. It is clear that Campbell fed, watered, and cared for the dog, albeit
intermittently. There was also evidence that the dog responded to Campbell's commands.
Although it is a close question, a person of ordinary intelligence would justifiably entertain the belief that the plaintiff will prevail in showing Campbell was keeper of the dog on July 24, 2007, within the meaning of that word under § 22-357. As noted above, the applicant need not prove that her allegations are probably correct or that it is more probable than not that she will triumph at trial. She need only establish probable cause to warrant a reasonable mind to that conclusion.
Likewise, the presumption of non-provocation afforded children under seven years of age placed the burden on Campbell to establish he will prevail on the statutory defense at trial. The court finds the evidence of teasing or tormenting by Cameron to be negligible, and that there exists probable cause to believe this defense will fail at trial.
Consequently, the court grants the prejudgment remedy in the amount of $100,000 with respect to Campbell.