Opinion
No. CV 04-4000781
February 24, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff has brought this action pursuant to Gen. Stats. § 22-357, the so-called dog bite statute. She claims that while on her own property in Clinton and walking her own dog on a leash, the defendants' white poodle roamed onto the plaintiff's property and "surprised, startled and upset the plaintiff's dog causing it to jerk his leash and throw the plaintiff to the ground." The plaintiff claims that she was injured, and she seeks money damages.
The defendants have now moved to strike the plaintiff's complaint, contending that the allegations fail to state a claim under Gen. Stats. § 22-357. They argue that the plaintiff's injuries were not caused by the defendants' dog but rather by her own dog and that because the complaint does not allege that she was injured by the defendants' dog, her claim must therefore fail. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court must "take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
Although commonly known as the "dog bite statute," it is now well recognized that Gen Stats. § 22-357 also applies even if the injury caused by a dog is not the result of the direct application of the offending canine's canines. The defendants, however, contend that because the plaintiff's allegations are to the effect that it was her own dog who was the immediate cause of her injuries, she may not make a claim against the defendants under the dog bite statute.
Gen. Stats. § 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 that 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 . . .
The defendants have not suggested that any of the recited exceptions to the dog bite statute are applicable, so the question before the court at this time is whether the defendants can be held liable for damage done to the plaintiff when their dog is alleged to have been not the direct, but rather the indirect cause of that damage. In Granniss v. Weber, 107 Conn. 622, 626 (1928), our Supreme Court held that the word "do" in the context of "do any damage" means "to bring about; to produce as an effect or result; to effect; to inflect." In that case, a dog owned by the defendant's minor son had darted out in front of an automobile driven by the plaintiff. The plaintiff was unable to avoid striking the dog, which impact caused the vehicle to overturn, resulting in the plaintiff's injuries.
Gen. Stats. § 22-357 "does not make fault a factor in determining whether an owner or keeper should be responsible to an injured third party. The owner or keeper must pay the injured party, not because he was at fault in not properly controlling the dog or in not being aware of the dog's potential for harm, but because justice and social policy require that he bear the loss rather than the injured third party." Maccarone v. Hawley, 7 Conn.App. 19, 25 (1986).
In Granniss, the allegation was that a dog belonging to the defendants' minor son ran out in front of the plaintiff's vehicle. "As the dog jumped in front of the car, the plaintiff applied his brakes and did everything possible to avoid hitting the dog, but there was not sufficient time to prevent the car from colliding with it. The colliding of the dog with the car caused the steering wheel to turn sharply to the right, and the automobile made a very sharp turn to its right into the gutter, and then turned over on its side." Granniss, supra, at 624. Granniss v. Weber, is the only Connecticut case which the court has been able to find in which liability under Gen. Stats. § 22-357 has been found when the injury complained of was not the result of a direct attack on the plaintiff by the dog. Nor, however, has the court found any cases in which, under circumstances comparable to those of the instant cases, a complaint pursuant to Gen. Stats. § 22-357 was stricken. Although dictum, the court in Granniss did point out that "if the dog had bitten a tire of the plaintiff's automobile and thereby caused the car to be suddenly deflected from its course and upset, damage resulting to person or property likewise would be recoverable." Id. at 626. If the logic of our Supreme Court of three quarters of a century ago is still valid, and this court believes that it is, the fundamental inquiry must be whether the actions of the defendant's dog could be found to be a proximate cause of the plaintiff's injury. This court finds that the circumstances described in the complaint . . . a dog owned or kept by the defendant, on the property of the plaintiff, acting in a manner so as to frighten the plaintiff's own dog so that it pulls sharply at its leash, causing the plaintiff to be injured . . . could be found by a reasonable trier of fact to have been a proximate cause of the plaintiff's injuries. The plaintiff's complaint, although hardly the standard "dog bite," thus states a claim for which relief may be granted pursuant to Gen. Stats. § 22-357, and the motion to strike is therefore denied.
The case gives no indication of the size of the dog in question, but improvements in automotive engineering since 1928 make it unlikely that the identical circumstances would have produced the identical result in a modern vehicle.
Jonathan E. Silbert, Judge