Opinion
No. CV 03-0474928 S
June 16, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On March 7, 2003, the plaintiff, Zachary Schatz, filed a two-count complaint against the defendants, Edward Frederick, Catherine Frederick, and Vincent Lagana. According to the complaint on December 6, 2002, the plaintiff, while walking in the common areas of the defendant's property, was attacked and bitten by a dog that was owned by Edward and Catherine Frederick, tenants on the defendant's property. The attack allegedly caused serious injuries to the plaintiff.
This motion to strike (104) was brought only by Vincent Lagana, hereinafter referred to as the defendant. On April 2, 2003, the court granted plaintiff's motion for default for failure to appear against Edward Frederick and Catherine Frederick.
Count one of the complaint alleges that Edward and Catherine Frederick violated § 22-357 (Connecticut's "dog bite" statute). In addition, count one contains a claim grounded in nuisance. Count two, against the defendant, alleges common-law negligence. Specifically, the plaintiff alleges that the defendant knew or had the means of knowing that the dog, owned and kept by his tenants, had vicious propensities.
On March 28, 2003, the defendant filed a motion to strike count two of the complaint on the basis that it is legally insufficient in light of Stokes v. Lyddy, 75 Conn. App. 252, 815 A.2d 263 (2003). On April 3, 2003, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. On April 11, 2003, the defendant filed a reply memorandum of law re-asserting the same arguments contained in his moving papers. In addition, the defendant argues that this court is limited to the allegations contained in the complaint and may not consider the additional facts presented in the plaintiff's opposition papers. Finally, on April 14, 2003, the plaintiff filed a reply memorandum to the defendant's reply.
DISCUSSION
"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 CT Page 8185-cn (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). A motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp. 240 Conn. 576, 588, 693 A.2d 293 (1997). Finally, a trial court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . .'Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366 (2003).
The thrust of the defendant's argument centers on his assertion that Stokes v. Lyddy, supra, 75 Conn. App. 252, is controlling. Stokes is a recent case in which the Appellate Court affirmed the trial court's dismissal of a common law negligence claim against a non-occupying landlord arising from an attack by a dog owned by a tenant. As the defendant acknowledges, however, the facts in Stokes can be distinguished in one important respect — the plaintiff there was not attacked on the defendant's property, rather, the attack occurred on public property. The court concluded that the landlord did not owe a duty to the plaintiff where the attack "occurred away from the leased property" which the landlord did not control. Id., 262. In this case, the plaintiff alleges that he was injured by a dog within the common areas of the defendant's property. Thus, this court cannot view Stokes as controlling precedent.
The Stokes decision is, however, instructive in that it states the general rule for premises liability: "a landlord has a duty reasonably to maintain property over which he exercises control"; Id., 260; and no liability exists "unless the landlord knew of the defective condition or was chargeable with notice." Id., 61. Further, to successfully plead a cause of action based on common law negligence arising from a dog bite, "the plaintiff must [plead and] prove that the dog had vicious propensities and that the owner or keeper had knowledge or the means of knowledge, of them." Basney v. Klema, 2 Conn. Cir. Ct. 538, 545, 203 A.2d 95 (1964).
In his memorandum of law in support of this motion, the defendant raises the alternative argument that he cannot be liable because a majority of the decisions of the Superior Court have concluded that CT Page 8185-co "non-occupying" landlords are not liable in common law negligence in cases where a tenant's dog injures someone on the defendant's property. Even if this is true, it is clear that there is a split of authority within the Superior Court. See Stokes v. Lyddy, supra, 75 Conn. App. 273 n. 18. In cases holding that a landlord may be liable in common law negligence, the courts have generally found that the plaintiff had either pleaded or proved sufficient facts showing that, prior to the incident at issue, the landlord knew or should have known about a particular dog's vicious propensities. See, e.g., Warner v. Bristol, Superior Court, judicial district of Hartford, Docket No. CV 00 801193 (December 22, 2000, Peck, J.) (denied summary judgment where evidence of prior aggressive behavior gave defendant-landlord notice); Santana v. Mounds, Superior Court, judicial district of Hartford, Docket No. CV 99 591027 (March 8, 2000, Beach, J.) (denied motion to strike where plaintiff alleged landlord "knew or should have known that all pit bulls are vicious"). Indeed, the Appellate Court in Stokes expressly stated that liability "generally depends upon proof that the landlord had actual or constructive notice of the condition prior to the time of the plaintiff's injuries." (Internal quotation marks omitted.) Stokes v. Lyddy, supra, 75 Conn. App. 261. Thus, if the complaint alleges facts sufficient to raise an issue regarding the defendant's knowledge prior to the dog attack, the plaintiff can survive a motion to strike.
Generally, "[i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). Since the plaintiff did not object to this deficiency, however, the court has discretion to consider this argument. See, Brouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
The complaint here alleges that the defendant knew or should have known about the dog's vicious propensities. The plaintiff has not, however, supported this conclusion with any facts. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts. (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "A motion to strike . . . is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50, 427 A.2d 822 (1980). Although pleadings should be construed "broadly and realistically, rather than narrowly and technically"; (internal quotation marks omitted) Doe v. Yale University, supra, 252 Conn. 667; a reading of the plaintiff's complaint, which alleges no facts to support its legal conclusion with respect to the defendant's notice of the dog's vicious propensities, leads this court to the inescapable conclusion that the complaint is legally insufficient.
The court notes that the plaintiff did present factual support in his opposition papers (i.e. the existence of a "beware of dog" sign and the defendant's proposed sale of the property at issue). This court cannot, however, consider these additional allegations. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
The defendants motion to strike count two of the complaint is granted because the plaintiff fails to allege facts sufficient to support a common-law negligence claim. CT Page 8185-cp
Harper, J.