Opinion
No. 04-4100861
May 16, 2006
MEMORANDUM OF DECISION RE DEFENDANT DEANDRADE'S MOTION FOR SUMMARY JUDGMENT #112
On November 12, 2004, the plaintiff, Earl Brown, Jr., filed a three-count complaint against the defendants, Maria Cardoso and Leonor Deandrade. This action arises out of alleged injuries and losses sustained by the plaintiff from a dog bite on his right foot on October 18, 2002. This incident occurred when the plaintiff, a business invitee, was lawfully on the residential premises owned by Deandrade while performing his duties as a meter reader for Norwich Public Utilities.
Deandrade is the mother of Cardoso. Deandrade also is the purported landlord of the premises located at 104 Asylum Street in Norwich, Connecticut. She resides on the first floor of the home, and Cardoso, the purported tenant, resides on the second floor.
In count one of the complaint, the plaintiff alleges that Cardoso, a resident of the subject premises and owner/keeper of the dog, is liable pursuant to General Statutes § 22-357, the Connecticut Dog Bite Statute. In count two of the complaint, the plaintiff alleges that as the landlord and owner of the premises, Deandrade is liable for the attack based on her carelessness and negligence in that she (1) failed to make a reasonable inspection of the premises and to secure the dog in order to protect others on her property; (2) breached her duty of care to protect the plaintiff from hazardous conditions; and (3) failed to remedy the dangerous condition despite her knowledge of the dog's violent personality. In count three, the plaintiff further alleges that Deandrade is liable pursuant to § 22-357 as the owner or keeper of the dog.
On November 2, 2005, Deandrade filed a motion for summary judgment on counts two and three of the complaint, accompanied by a memorandum of law in support as required by Practice Book § 11-10 and documentary evidence. On January 26, 2006, the plaintiff filed a memorandum of law in opposition to the motion accompanied by a number of exhibits. On January 30, 2006, Deandrade filed a reply memorandum and this matter was heard before the court on the short calendar.
DISCUSSION
"Practice Book [§ 17-49] provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . 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 . . . 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.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
Deandrade moves for summary judgment on count two of the complaint on the ground that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law because a defect did not exist on any portion of the property over which she maintained control. Specifically, Deandrade argues that her premises were kept in a reasonably safe condition, she does not have to maintain any of the premises other than those areas over which she has exclusive control, and that the plaintiff's alleged injuries did not even occur on her property, but on the premises across the street. Deandrade further argues that she did not consent to Cardoso's ownership of the dog on the premises, and, in fact, told Cardoso to get rid of the dog. Deandrade moves for summary judgment on count three of the complaint on the ground that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law because she is neither the owner nor the keeper of the dog under § 22-357. In support of the motion, Deandrade submits the following evidence: (1) copies of the police report and witness statements; (2) excerpts of a certified copy of Cardoso's deposition testimony; (3) excerpts of a certified copy of the plaintiff's deposition testimony; and (4) her signed and sworn affidavit. In opposition to the motion for summary judgment, the plaintiff counters that there are genuine issues of material fact in dispute with respect to both counts of the complaint. The plaintiff argues that: (1) Deandrade may be liable, as the landlord, if she had prior knowledge of the dog's dangerous propensities and, nevertheless, failed to take appropriate steps to remedy this defect; (2) the landlord could be considered a keeper of the tenant's dog depending on the dog's use of the common areas of the leased premises; (3) there is a question of fact as to whether as the landlord, Deandrade, controlled the area where the plaintiff was attacked; and (4) there is a question of fact as to whether Cardoso occupied the apartment as a licensee or lessee. In support of his memorandum, the plaintiff submits the following evidence: (1) his signed and sworn affidavit; (2) a certified copy of Deandrade's deposition testimony; (3) a certified copy of Cardoso's deposition testimony; (4) a copy of Deandrade's signed and sworn affidavit; (5) a certified copy of his deposition testimony; and (6) an unauthenticated copy of a prior online court file wherein Deandrade is listed as a defendant, Nolan v. Deandrade, Small Claims Court, Docket No. SCA 10-71454 (Stillman, Magistrate).
"[A] court may properly take judicial notice of relevant court files involving the same defendant." State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994).
"The essential elements of a cause of action in negligence are well established: duty; breach of that dirty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails . . ." (Citation omitted; internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn.App. 162, 167, 888 A.2d 1083 (2006). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In relation to the negligence claim in the present case, "[t]he general rule is that a landlord has a duty reasonably to maintain property over which he exercises control . . . That duty serves to protect entrants (invitees, licensees, trespassers) and tenants. The degree of care owed to an entrant depends on the entrant's status . . . The duty does not, however, extend to uncontrolled land such as neighboring property or public lands . . .
"With respect to a landlord's duty to entrants, our Supreme Court has stated that under the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control . . . [A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant . . . In other words, [t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the building over which he reserves control . . .
"There could be no breach of the duty resting upon the [landlords] unless they knew of the defective condition or were chargeable with notice of it because, had they exercised a reasonable inspection of their premises, they would have discovered it Thus, liability of a landlord for damages resulting from a defective condition in an area over which the landlord exercises control generally depends upon proof that the landlord received either actual or constructive notice of the condition prior to the time of the plaintiff's injuries . . . Liability also usually depends upon proof that the landlord failed to remedy the defective situation in a reasonable period of time after receipt of notice . . ." Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . . Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue." (Citations omitted; internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 260-61, 815 A.2d 263 (2003).
In the present case, Deandrade has not satisfied her burden of proving the absence of a genuine issue of material fact regarding the allegations of negligence or premises liability set forth in count two. First, there are disputed factual issues as to where the attack occurred. In the plaintiff's signed and sworn affidavit, he testifies that while he was reading the meter in Deandrade's basement, "[t]he dog then came around the corner and lunged at me with its mouth open. While being attacked by the dog, I dropped my handheld computer, and picked up a shovel, and I tried to protect myself from the dog. The dog was trying to bite me. I hit it a few times." (Emphasis added.) Consistent with the affidavit, the plaintiff testified at his deposition that the attack began in the basement of Deandrade's property.
Q. [Attorney for Deandrade]. You went down into the bulkhead into the cellar. Right?
A. Yes.
Q. All right. And you said then suddenly you were being attacked by a pit bull?
A. Yes.
Nonetheless, there is also evidence that the attack continued to a location across the street, off Deandrade's property, where the dog ultimately bit the plaintiff's foot. At the deposition, the plaintiff responded:
Q. [Attorney for Deandrade]. At what point — where did you get when you saw the dog again?
A. When I was on the sidewalk of 104 Asylum Street.
Q. Okay. Which is the premises of Mrs. Deandrade and Maria Cardoso at that time?
A. Yes.
Q. Okay. So you were on the sidewalk. You saw the dog. And at that point, the dog saw you, too?
A. Yes.
Q. All right. Tell me what happened at that point?
A. I went across the street. It followed. It got aggressive again.
Q. And is that where the dog bit you?
A. Yes.
This evidence presents an issue of fact as to whether the attack occurred when the dog bit the plaintiff across from the property of Deandrade or whether the attack occurred when the dog initially pursued the plaintiff, but did not bite him, in the basement on Deandrade's property.
There is an additional question of fact as to whether Deandrade controlled the area where the attack occurred. Deandrade testified at her deposition that only she had access to the basement.
Q. [Attorney for the plaintiff]. Now, there's two apartments in your house, correct?
A. Uh — huh. Yes.
Q. The first floor and the second floor?
A Yes.
Q. And does everyone have access or use of the basement?
CT Page 9065
A. No.
Q. Who has use of the basement?
A. I'm the one that got use for the basement.
Q. Okay. Just you, no one in the second floor?
A. No.
Liability for both negligence for count two and under § 22-357 for count three of the plaintiff's complaint requires a showing that Deandrade is the owner or keeper of the dog. There is no dispute as to the ownership of the dog. Therefore, Deandrade must be deemed to be the keeper of Coco, which in turn is based on the concept of control. "Consistent in the common-law duty and in § 22-357 there is the requirement that liability be based on control (owners-keepers). The term `keeper' is defined in the General Statutes as `any person, other than the owner, harboring or having in his possession any dog . . .' General Statutes § 22-357(6). Under § 22-357, therefore, a keeper can be either a harborer or possessor of the dog. In Buturla v. St Onge, 9 Conn.App. 495, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987), we stated that the term `harborer' means `one who treats a dog as living in his home and undertakes to control the dog's actions.' . . . In Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992), our Supreme Court further explained that the term `harborer' includes one who provides lodging, shelter or refuge in addition to possession with control. A landlord, however, is not a `keeper' of a dog merely because a tenant owns a dog and keeps the dog on the premises." (Citations omitted.) Stokes v. Lyddy, supra, 75 Conn.App. 267. A landlord can be found liable "when a tenant's dog makes greater use of common areas in and about leased premises . . . either because it is generally kept in such areas or because it is allowed to roam through them without immediate control by the tenant, an inference is raised that the landlord exercises at least some degree of control over the dog, and thus he is its keeper." (Internal quotation marks omitted.) Simmons v. Welch, 48 Conn.Sup. 564, 571, 854 A.2d 114 (2003). "To determine who is a keeper of a dog, the analysis relies on the degree of control exerted over the dog." Auster v. Norwalk United Methodist Church, 94 Conn.App. 617, 621 n. 6, 894 A.2d 329 (2006).
In Auster, the plaintiff was bitten by a pit bull while she was on the defendant's premises and "sought to recover damages from the defendant as `keeper' of the dog pursuant to § 22-357." Id., 619. An employee of the church who lived with his family in an apartment on the church property owned the dog that attacked the plaintiff. At the time of the attack, the plaintiff was visiting the church for a meeting. The jury returned a plaintiff's verdict and the Appellate Court reversed, holding that there was "insufficient evidence to establish that the defendant was a `keeper' under § 22-357." Id., 621. The court stated that "the defendant did not exercise control over the dog in a manner similar to that which would ordinarily be expected by the owner . . . The defendant did nothing remotely close to those activities [assuming sole responsibility to feed, water, walk and provide shelter for a dog in its home on a temporary basis] and, thus, did not exercise control similar to that of the owner. The defendant did not exercise dominion and control over the dog in any manner other than by placing a limit on when and where [the employee/tenant] could let his dog outside. This minimal regulation is insufficient to establish that the defendant had control or possession of the dog." Id., 622.
In the present case, there are issues of fact in dispute concerning Deandrade's retention of control over the common areas that the dog frequently occupied. Deandrade's signed and sworn affidavit states that "[o]n several occasions prior to October 18, 2002, I told Maria Cardoso and Michael Camacho that they could not keep the dog `Coco' at the apartment" and `that "[a]t no time did I give Maria Cardoso or Michael Camacho permission to use common areas for the dog." Deandrade testified at her deposition, however, that she did not understand the term "common areas" and, in direct contravention to her affidavit, that she allowed Cardoso and Camacho to tie the dog up in the backyard.
Q. [Attorney for the plaintiff]. [Y]ou did allow them to tie the dog up to the tree in the backyard, correct?
A. Yes.
In light of this evidence, there is a question of fact not only as to whether Deandrade reserved control over the backyard common area and willingly allowed the dog to occupy that common area, but also as to the credibility of her testimony. In considering a motion for summary judgment, it is not the court's function to decide material facts or determine the credibility of evidence. See Nolan v. Borkowski, 206 Conn. 495, 505-06, 538 A.2d 1031 (1988). The court cannot "substitute its own judgment concerning the credibility of [witnesses] for that of the [trier of facts] . . ." Bogart v. Tucker, 164 Conn. 277, 282, 320 A.2d 803 (1973). "Issues of credibility are within the exclusive realm of the trier of fact, and, therefore, cannot be resolved by summary judgment. Battistoni v. Weather King Products, 41 Conn.App. 555, 564 [ 676 A.2d 890] (1996)." White v. Thornton Oil Corp, Superior Court, judicial district of New Haven, Docket No. CV 01 0455245 (January 7, 2004, Arnold, J.) ( 36 Conn. L. Rptr. 279, 280). These discrepancies in the testimony provided by Deandrade as to whether she gave permission to allow the dog to use the common areas, whether she provided a dog house for him in the backyard and whether the dog used it place her credibility at issue as to whether she is a "keeper" of the dog. Additionally, there is evidence that Deandrade had actual or constructive knowledge of the dog's propensity to attack entrants on the property. At her deposition, she described the dog as mean and referred to a prior incident in which the dog bit a child that resulted in a lawsuit against her.
Q. [Attorney for the plaintiff]. How would you describe the [p]itbull before this incident? Was it a nice dog, friendly, mean, violent? How would you describe it?
A. What I see, I see he was mean. That dog was mean.
Q. And what do you base that on? Why do you say that?
A. Because is always when you pass by it always barking and (indicating).
Q. Before this incident on October 18, 2002, did you ever — did you know whether this dog ever bit anyone before?
A. Yes, bit a kid.
Finally, there is a genuine issue of fact in dispute as to whether Deandrade and her daughter Cardoso entered into a legally binding landlord-tenant relationship, or whether Cardoso is a licensee and merely resides in the apartment. Despite Deandrade and Cardoso's assertions that a landlord-tenant relationship exists, their deposition testimony has some inconsistencies. Deandrade testified at her deposition that there was never a written lease and that although Cardoso paid a monthly rent of $500 in cash, she failed to maintain any receipts or records of the payments.
Q. [Attorney for the plaintiff]. [W]hen Ms. Cardoso moved into this apartment at 104 Asylum Street, did you have a written lease with her?
A. No.
Q No lease, no written lease?
A. No.
Q. And when Ms. Cardoso moved into the apartment at 104 Asylum, did she pay you rent?
A Yes, she was paying.
Q. How much did she pay a month.
A. 500.
. . .
Q. [H]ow did Maria Cardoso pay you the rent, for example, by check, by cash, by bank check?
A. Cash.
Q. Did you keep any written record of rent paid to you by Ms. Cardoso?
A. No.
In contrast, Cardoso testified at her deposition that there was a written lease, that she did not have a copy of the lease and that she paid a monthly rent of $650.
Q. [Attorney for Deandrade]. Do you remember what the rent was like?
A. I was paying 650. CT Page 9069
Q. That's per month, right?
A. Yes.
. . .
Q. There was a written lease between the two of you?
A. Yes.
. . .
Q. Do you have a copy of that lease?
A. God, no.
Therefore, Deandrade and Cardoso's inconsistent testimony raises an issue of credibility and whether a landlord-tenant relationship truly exists.
Based on the foregoing reasons, the evidence provided by the parties demonstrates the existence of genuine issues of material fact in dispute on both counts two and three.
Accordingly, the defendants' motion for summary judgment is denied.