Opinion
FBTCV166059135S
07-05-2017
Diana Gregori v. Elyssa Ganser
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, J.
The defendant has filed a motion to dismiss dated October 12, 2016, and an amended motion to dismiss dated May 26, 2017. The defendant claims that the underlying action should be dismissed due to insufficient service of process and has also alleged the action was not commenced within the applicable statute of limitations. The defendant has filed a supporting memorandum of law. The plaintiff has filed her objection and also has filed a memorandum of law. On October 12, 2016, the court (Kamp, J.) reviewed the motion to dismiss and ordered an evidentiary hearing to resolve factual questions not apparent on the face of the record before the court. The hearing was scheduled for May 19, 2017, and thereafter was continued to June 29, 2017, when the court (Arnold, J.) heard testimony from the defendant and received three full exhibits from the defendant.
The defendant's motion to dismiss alleges a lack of personal jurisdiction, as well as, a lack of subject matter jurisdiction. " A motion to dismiss . . . properly attacks the jurisdiction of the court . . . [It] admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). " A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court . . . The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
" [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 434, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack or personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401.
A statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss.]" Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless " [w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . ." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). See also, Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense . . ." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). Nevertheless, " [when] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . but rather is a limitation on the liability itself, and not of the remedy alone . . ." State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012). General Statutes § 22-357 does not contain within its text a specific statute of limitations. Rather, a statutory cause of action, under section 22-357, for injuries done by dog is governed by section 52-577 providing for a three-year statute of limitations applicable to action founded upon tort. Gretkowski v. Coppola, 26 Conn.Supp. 294, 222 A.2d 41 (1966). Therefore, the use of a motion to dismiss pleading the statute of limitations would ordinarily be improper. The appropriate challenge is by way of a properly pleaded special defense. Worth v. Commissioner of Transportation, 135 Conn.App. 506, 515 n.16, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). Nevertheless, " [o]ur Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." (Internal quotation marks omitted.) Id. In this matter, there is no objection by the plaintiff to the defendant's use of a motion to dismiss, so the court will proceed to address the issue.
Factual Findings
The record reveals that the plaintiff filed the underlying writ, summons and complaint, dated July 25, 2016, bearing a return date of September 13, 2016. The complaint alleges that the plaintiff was attacked by a dog owned or kept by the defendant at the premises known as The action is brought pursuant to General Statutes § 22-357. The state marshal's return of service states that the " foregoing writ was placed in my hands for service on July 25, 2016." The state marshal made abode service on the defendant on August 5, 2016, by leaving copies of the original writ, summons and complaint and statement of demand at three different addresses. Abode service was made at: (1) 9 Windsor Road, Darien, Connecticut; (2) 137 Hollow Tree Ridge Road, Apt. 1412, Darien, Connecticut; and (3) 401 Silver Creek Lane, Norwalk, Connecticut. The marshal then attested and signed his signature on the return of service. The return of service was filed with the court on September 6, 2016. The defendant filed her self-represented appearance on September 14, 2016, listing her address as 1401 N. Taft Street Apt. 112, Arlington, Virginia. Thereafter, she filed a motion to dismiss stating that there was a lack of personal jurisdiction due to improper service; there was a prior pending action; non-compliance with the applicable statute of limitations; and that she was not the owner and/or keeper of the dog which allegedly attacked and bit the plaintiff. Subsequently, the defendant retained legal counsel, who on behalf of the defendant filed the amended motion to dismiss, which also alleges insufficient service of process and a violation of the statute of limitations.
§ 22-357. Damage by dogs to person or property
On July 25, 2013, the date of the incident, the defendant a college student was residing with her parents and family members at 9 Windsor Road, Darien Connecticut, on July 25, 2013. During the college school year, the defendant was a student at Pennsylvania State University (" Penn State") and would reside on campus. However, during school vacations and summer vacation the defendant would return to reside with her parents at the family home, which she considered her permanent residence. Upon her graduation from college in May 2016, the defendant moved to 516 Silverbark Court, Millersville, Maryland on June 11, 2016, to reside at the home of her boyfriend's parents and commenced employment. Nonetheless, she testified that she still considered Connecticut her permanent address and residence and considered the Maryland address as a temporary address. On or about August 19, 2016, the defendant moved from Maryland to 1401 N. Taft Street, Apt. 112, Arlington, Virginia, and continues to reside there, while working in the Washington, D.C. metropolitan area. The defendant has submitted three exhibits to establish her residency in Maryland and later in Virginia. However, the, defendant maintains and continues t use her Connecticut driver's license and Connecticut phone number.
Subsequent to this incident, the defendant's Connecticut residence changed several times due to her parents' moving; which explains the attempt at abode service at three different addresses. She and her mother first moved from 9 Windsor Road, Darien Connecticut, to 401 Silver Creek Lane, Norwalk, Connecticut, and thereafter, in May 2016, to 137 Hollow Tree Ridge Road, Apt. 1412, Darien, Connecticut.
The court has in its possession copies of income tax W-2 forms, a paycheck and insurance correspondence verifying the Maryland and Virginia addresses in June 2016 and August 2016.
The defendant's Connecticut driver's license lists 401 Silver Creek Lane, Norwalk, Ct., as her address.
The defendant first learned about the service of the writ, summons and complaint from her mother, who was residing at 137 Hollow Tree Ridge Road, Darien, Connecticut, one of the addresses noted on the state marshal's return of service. As noted earlier herein, the return date for this action was September 13, 2016. The defendant filed her self-represented appearance on September 14, 2016. Within thirty days of filing her appearance, she filed the subject motion to dismiss.
The state marshal's return indicates he made abode service at this address on August 5, 2016.
Discussion
A usual place of abode has been defined as a place of residence within the state. 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 19, p. 40. It is well established, however, that " [o]ne may have two or more places of residence within a [s]tate, or in two or more [s]tates, and each may be a usual place of abode . . . Service of process will be valid if made in either of the usual places of abode . . ." Argent Mortg. Co., LLC v. Huertas, 288 Conn. 568, 577-78, 953 A.2d 868 (2008). " Residence does not necessarily import domicile. Nor does usual place of abode import domicile . . . There is no relation between them, though they may be concurrent. A person may have two or more places of abode while he can have only one domicile." 5 (Citations omitted; internal quotation marks omitted.) Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102 (1927); see also Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 772, 789 A.2d 528 (2002).
" Service of process may be made by leaving an attested copy with a defendant, or at his usual place of abode. The most prominent purpose of the law in prescribing the modes of serving civil process, was, to insure actual notice to defendants. The place where one would be most likely to have knowledge of a service by copy would be at his usual place of abode." (Citations omitted.) Clegg v. Bishop, supra, 105 Conn. 564. " One may have two or more places of residence within a state, or in two or more states, and each may be a usual place of abode. Service of process will be valid if made in either of the usual places of abode. It will reach him in one as well as the other." Id. " [O]ne may have a home and residence outside this state and yet have a usual place of abode in this state for service of process . . ." Id. " Where one has two usual places of abode, one within and one without the state, either of these abodes will be a usual place of abode for the service of process under our statute." Id.
" Connecticut decisions place great reliance upon a man's residence rather than upon his domicil. One may have more than one residence in the state and each be 'a usual place of abode, ' which has been determined to be a residence signifying a temporary place of habitation rather than a permanent place where one lives with the intention to remain. Capitol Light & Supply Co. v. Gunning Elec. Co., 24 Conn.Supp. 324, 326, 190 A.2d 495 (1963), citing, Clegg v. Bishop, supra, 105 Conn. 564. A person may be a part-time or full-time resident of the state and he may have a 'usual place of abode' outside the state and may have one within the state at the same time and each be sufficient for service. Dorus v. Lyon, 92 Conn. 55, 57, 101 A. 490.
Where a person's residence and place of business are in a different state, service at an apartment in which his family resides . . . where he visits occasionally has been held to be his usual place of abode. Capitol Light & Supply Co. v. Gunning Elec. Co., supra, 24 Conn.Supp. 324, 327; State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 127 A.L.R. 1263; note, 142 Fla. 496, 195 So. 145, 127 A.L.R. at 1267. In deciding the usual place of abode, many circumstances can be considered, such as the existence of personal possessions at a parent's home where a defendant had lived before he/she left and a continuance of ties of blood and affection and that he wrote frequently to persons at home. Id. A person may be absent a considerable period of time from a house where their parent is living, but such place has been held to be a usual place of abode. (Citation omitted.) Id.
Here, the defendant had lived with her parents and siblings for many years and continues his ties of blood and affection by visiting during the time she claims to have left the state. She has continued to hold a Connecticut motor vehicle operator's license, citing a Connecticut address, where the state marshal made abode service. She also maintains a Connecticut telephone number. There is no showing that she intended to permanently abandon her former home in Connecticut. The only evidence in support of the proposition that she had abandoned Connecticut at the time of abode service on August 5, 2016, is that she commenced residence in Virginia on or after August 19, 2016. See id. She concedes that her residence in Maryland in June 2016, was temporary and that while in Maryland, she still considered Connecticut her permanent residence. It is not unreasonable to believe that a young woman in her early twenties, who apparently has yet to marry, may, in view of the above circumstances, have a usual place of abode at the present home of her parent.
The defendant renewed her Connecticut operator's license in February 2016, using the Norwalk, Connecticut address.
Regarding her marital status, the court notes that she referred to her " boyfriend" during testimony.
In the present case, the fact that the defendant received prompt actual notice of this action weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever. She timely filed an appearance and timely filed a motion to dismiss. There have been no substantive court proceedings, to date, other than consideration of this amended motion to dismiss, which was filed by her legal counsel. See. Plonski v. Halloran, 36 Conn.Supp. 335, 337, 420 A.2d 117 (1980). The abode service was proper and effective.
The defendant next argues that the plaintiff violated the three-year statute of limitations applicable to section 22-357 (Dog Bite Statute), pursuant to General Statutes § 52-577. As noted earlier herein, plaintiff filed the underlying writ, summons and complaint, dated July 25, 2016, bearing a return date of September 13, 2016. The state marshal's return of service states that the " foregoing writ was placed in my hands for service on July 25, 2016." The state marshal's return reflects he signed his signature following the word " attest." The defendant argues that the marshal must sign the return under oath if he is utilizing the savings features of General Statutes § 52-593a, as provided in subsection (b). Signing under oath would require for example the attesting signature of a commissioner of the superior court, notary public or other duly authorized public official. The defendant claims the marshal is required to do more than he would when signing a regular return of service.
General Statutes § 52-577 provides as follows. " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff argues that the writ, summons and complaint was timely served within the three-year statute of limitations, as the alleged injury occurred on July 25, 2013 and the original writ, summons and complaint was hand delivered to the state marshal on July 25, 2016, which resulted in abode service on August 5, 2016. The plaintiff, however, has not addressed the defendant's claims that the return of service was not signed under oath by the state marshal.
General Statutes § 52-593a provides as follows:
(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery.
(b) In any such case, the officer making service shall endorse under oath on such officer's return the date of delivery of the process to such officer for service in accordance with this section.
" When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted; internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010).
Section 52-593a is remedial in nature as it is " intended to prevent a party from losing the right to a cause of action because of untimely service on the part of the marshal by giving the marshal additional time in which to effect proper service on the party in question." (Emphasis omitted.) Id., at 682, 986 A.2d 290. The statute evinces " [t]he legislature's policy of avoiding the unfairness that would result from holding a plaintiff responsible for a failure of service that is attributable to the marshal rather than the litigant . . ." Id., at 682, 986 A.2d 290 n.10.
" Due to its remedial nature, § 52-593a should be interpreted liberally in favor of those whom the legislature intended to benefit." Johnson v. Preleski, 174 Conn.App. 285, A.3d (2017); Dorry v. Garden, 313 Conn. 516, 533, 98 A.3d 55 (2014). " Yet, this approach does not require us to vitiate clear statutory requirements, thus rendering meaningless the thing to be accomplished by the statute." Id. " [A] plaintiff relying upon a 'saving statute' must demonstrate compliance with its provisions." Id.
" The issue of compliance with § 52-593a has been addressed many times over the last few years by Connecticut's Superior Courts, and has been resolved in different ways. Some courts have viewed the provisions in § 52-593a(b) as mandates to be strictly followed in order to save a plaintiff's action." Minney v. Dasent, Superior Court, judicial district of New London. No. CV065000642 (Oct. 23, 2006, Hurley, JTR); 42 Conn.L.Rptr. 229, citing, Castaneda v. New London County Mut. Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 04 0833740 (November 29, 2004, Hale, J.T.R.) (granting a motion to strike where the plaintiff provided evidence in his brief that delivery of process to the marshal was made before the statute of limitations expired, but the actual return was not properly dated in accordance with § 52-593a(b) and where the marshal who signed the return of service was not the same marshal to whom delivery was made); Ruffino v. Gasparri, Superior Court, judicial district of Waterbury, Docket No. CV 97 0137998 (September 8, 1997, Pellegrino, J.) (22 Conn.L.Rptr. 534, ) (granting a motion for summary judgment where the plaintiff did not strictly comply with the requirements of § 52-593a(b) in that the marshal verifying delivery was not the same marshal who actually made service and where the marshal's actual service occurred seventeen days after delivery when the time period granted in § 52-593a(a) was only fifteen days); Renz Constr. Corp. v. Kirschner, Superior Court, judicial district of Fairfield, Docket No. CV 96 0329403 (July 15, 1996, Moran, J.) [17 Conn.L.Rptr. 205, ] (stating that the plaintiffs could not use § 52-593a to save their cause of action because the sheriff's return did not contain an endorsement).
The majority of courts, however, have held that it is not necessary for a plaintiff to strictly comply with the statute's words in order to invoke its protection. Desimini v. Bristol Hosp., Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4003250 (January 12, 2006, Domnarski, J.) (40 Conn.L.Rptr. 611, 614, ) (holding that " the endorsement of the date of delivery on the original return is directory and not mandatory"); see also Roldan v. Avanti Screw, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0521915 (December 28, 2004, Berger, J.) (38 Conn.L.Rptr. 466, 468, ) (same); Cartsounis v. Rosenstein, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 00 0176589 (March 6, 2003, Lewis, J.T.R.) (34 Conn.L.Rptr. 243, 245, ) (stating that " [a] court should not elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose"); Brown v. Brookville Transp., Superior Court, judicial district of New Haven, Docket No. CV 392820 (January 4, 2001, Blue, J.) (28 Conn.L.Rptr. 662, ) (determining that " [n]either the defendant nor the administration of justice is harmed in any way by the establishment of the date of delivery by means of subsequent affidavits"); Viderman v. Pastore, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149646 (April 12, 1996, Ryan, J.) (16 Conn.L.Rptr. 543, ) (following the majority view so that the court would " not exalt form over substance").
" The test to be applied in determining whether a statute is mandatory or directory is whether the proscribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system, and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (internal quotation marks omitted.) State v. Murray, 254 Conn. 472, 489, 757 A.2d 578 (2000).
A court should not " elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose." Reichert v. Sheridan, 34 Conn.App. 521, 525, 642 A.2d 51 (1994), aff'd, 233 Conn. 251, 658 A.2d 96 (1995). Moreover, our Supreme Court has long held that " any . . . return of process is amendable, and, if an error has intervened, ought to be amended and made to speak the exact truth." Palmer v. Thayer, 28 Conn. 237, 243 (1859). " [Absent] a showing of prejudice or that [a marshal's] amended return [or affidavit] is inaccurate, " the court has the discretion to consider said documents when determining whether an action is saved under § 52-593a. Robel v. Nassir, Superior Court, judicial district of New Haven, Docket No. SPNH 98 04 54492, (May 8, 1998, Levin, J.).
In the present matter, the plaintiff has not filed an amended return of service or sworn affidavit clarifying the issue regarding the marshal having signed his return of service under oath.
The court, therefore, must decide whether the marshal's use of the word " attest" followed by his signature, satisfies the requirement of signing under " oath" as set forth in section 52-593a(b).
" Reading the subsections of 52-593a together, the plain language meaning of subsection (b) renders subsection (a) ineffective without compliance with the endorsement requirement . . . [S]ubsections (a) and (b) must be read together . . . first, because they are parts of the same section, second because in subsection (b) the expression 'any such case' refers to subsection (a) and third, because the requirement of an endorsement under oath shows the seriousness of the requirement in order to support any subsection (a) action." (Internal quotation marks omitted.) Cronin v. Minnefield, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008698 (January 16, 2009, Alvord, J.) (47 Conn.L.Rptr. 122, 123 n.1, ) (holding that applicability of savings provision was contingent upon marshal's endorsement on return); City of Derby v. Garofalo, Superior Court, judicial district of Ansonia-Milford, No. CV085004821S, (Mar. 24, 2010, Bellis, J.) Pagan v. Gonzalez, 113 Conn.App. 135, 139, 965 A.2d 582 (2009).
The court notes, however, that Section 52-593a, is a remedial statute and is to be liberally interpreted. Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004); Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 55, 850 A.2d 1032 (2004). " There is a presumption of truth in matters asserted in the officer's return." (Internal quotation marks omitted.) Pagan v. Gonzalez, 113 Conn.App. 135, 139, 965 A.2d 582 (2009).
General Statutes § 1-1(a) states:
a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.
General Statutes § 1-1(j) provides:
(j) The word 'oath' shall include affirmations in cases where by law an affirmation may be used for an oath, and, in like cases, the word 'swear' shall include the word 'affirm.'
By its very definition, an oath must be administered personally. State v. Tedesco, 175 Conn. 279, 287, 397 A.2d 1352 (1978) It requires that the state marshal desiring to utilize the provisions of section 52-593a(b) shall make a sworn statement, in essence, an " oath" or affirmation to an official authorized to accept, acknowledge and notarize the marshal's oath or affirmation regarding the date the original writ, summons and complaint was personally received by the state marshal. See also. U.S. v. Ambrose, 108 U.S. 336, 338, 2 S.Ct. 682, 27 L.Ed. 746 (1883). (An oath or affirmation required by law, must be taken before a competent tribunal, wherein the person required to give an oath declares that the information in the written statement or certificate sworn or affirmed by him is true.)
The word " attest" followed by the state marshal's signature on his return of service, does not satisfy the requirement of § 52-593a(b) that " the officer making service shall endorse under oath on such officer's return the date of delivery of the process to such officer for service . . ." This problem could have been corrected by the filing of a supplemental return and sworn affidavit by the state marshal. However, that has not been by the date of this decision. Therefore, the court grants the defendant's motion to dismiss due to the lack of compliance by the state marshal and the plaintiff with General Statutes § 52-593a(b).
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 the amount of 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 such 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 an action under this section against a household member of a law enforcement officer to whom has been assigned a dog owned by a law enforcement agency of the state, any political subdivision of the state or the federal government for damage done by such dog, it shall be presumed that such household member is not a keeper of such dog and the burden of proof shall be upon the plaintiff to establish that such household member was a keeper of such dog and had exclusive control of such dog at the time such damage was sustained. For the purposes of this section, " property" includes, but is not limited to, a companion animal, as defined in section 22-351a, and " the amount of such damage, " with respect to a companion animal, includes expenses of veterinary care, the fair monetary value of the companion animal and burial expenses for the companion animal.