Opinion
No. CV06-5000744S
July 13, 2007
MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION *114
On January 26, 2006, the plaintiff filed a two-count complaint against the defendant for injuries he suffered as a result of a dog bite. Count one is brought pursuant to General Statutes § 22-357, the dog bite statute, and count two is drafted in negligence. The plaintiff alleges the following facts. On May 16, 2005, the plaintiff, in the course of his employment at Camelot Kennels, was injured when a dog, owned by the defendant, bit the plaintiff on his hands and fingers while the plaintiff was grooming the canine.
On June 21, 2006, the defendant filed a motion for summary judgment as to count one on the ground that the plaintiff, pursuant to § 22-357, is prohibited from recovering for the injuries he allegedly suffered as he was acting as the dog's keeper when he was grooming him. On August 17, 2006, the plaintiff filed an objection to the defendant's motion for summary judgment. Oral argument was heard on short calendar on May 14, 2007. On May 17, 2007, the court, Upson, J., denied the defendant's motion for summary judgment. On June 6, 2007, the defendant filed a request for articulation as to why the motion for summary judgment was denied. The defendant's motion is granted.
"General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. A `keeper' is defined as `any person, other than the owner, harboring or having in his possession any dog.' General Statutes § 22-327. To harbor a dog is to afford lodging, shelter or refuge to it. [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog] . . ." (Citation omitted; internal quotation marks omitted.) Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992).
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."
"[W]hen the language `any person,' as used to describe the class of persons afforded a remedy under the statute, is read in context with the entire text of § 22-357 and in light of the statute's purpose . . . the only rational interpretation of the phrase `any person' is that it describes a class of third persons separate and apart from owners and keepers who, by definition, are the class of persons that exercise dominion and control over a dog." (Emphasis in original.) Murphy v. Buonato, 42 Conn.App. 239, 250, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997). "[A] keeper of a dog is not within the class of persons that the legislature intended to protect by enacting § 22-357. Section 22-357 is drastic, and its purport is that a person who owns a dog does so at his peril. The same is true as to a keeper, so long as he remains a keeper." (Internal quotation marks omitted.) Id., 250-51. "[T]he determination of whether the plaintiff was a keeper is a question of fact . . ." Id., 242.
In Murphy v. Buonato, supra, 42 Conn.App. 239, the court held that the plaintiff was a "keeper" of a dog when, as a favor to the defendant, he temporarily cared for the dog in his own home. Other cases have held that a person is not a "keeper" of a dog even when the dog was on their premises. See, e.g., Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d 263 (2003); Buturla v. St. Onge, 9 Conn.App. 495, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987). In Prucinsky v. Evans, 47 Conn.Sup. 655, 822 A.2d 390 (2003) [34 Conn. L. Rptr. 226], the court held that a person is not a keeper of a dog when walking the dog in a park for the owner. Additionally, in Buchelli v. Billue, Superior Court, judicial district of New Britain, Docket No. CV 04 0526998 (May 16, 2006, Shapiro, J.), the court denied the dog owner defendant's motion for summary judgment in an action brought by the plaintiff for injuries she suffered when the dog bit her while she was acting as a dog groomer. The court found that there were unresolved issues of material fact regarding who had control of the dog. Id.
In the present case, the defendant argues in her motion for summary judgment and asserts as a special defense that the plaintiff was acting as a "keeper" of the dog when he was grooming it. The plaintiff counters that whether or not he was a "keeper" of the dog at the time of the incident is a question of fact. "As . . . already stated, the determination of whether a person is a keeper turns on whether, and to what extent, a person in possession of a dog exercises dominion and control over it." Murphy v. Buonato, supra, 42 Conn.App. 246. There is a genuine issue of material fact whether, in the act of grooming the dog, the plaintiff exercised the requisite dominion and control over the animal to be considered its keeper. A material issue of fact cannot be resolved by summary judgment. See Dowling v. Finley Associates, Inc., 248 Conn. 364, 379, 727 A.2d 1245 (1999). Accordingly, the defendant's motion for summary judgment is denied.