Opinion
No. CV06-5001251S
August 16, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
This is an action brought by the plaintiff, Teresa Sciortino, against the defendants, Javier Soto, Jason Serra, Gerard Serra and Christopher Wagner, for injuries she sustained when she was attacked by a Bull Mastiff dog that she alleges was owned or kept by the defendants. Specifically, the plaintiff seeks recovery pursuant to General Statutes § 22-357. In their answer to the complaint, the defendants Jason and Gerard Serra and Christopher Wagner deny that they owned or kept the dog.
On February 13, 2007, Jason and Gerard Serra and Christopher Wagner filed a motion for summary judgment on the ground that there is no genuine issue of material fact that they were not the owners or keepers of the dog in question, and they are, therefore, entitled to judgment as a matter of law. Along with their motion they each provided an affidavit and a portion of the plaintiff's deposition testimony. The plaintiff filed an objection, also including a portion of her deposition testimony. A copy of the lease was also provided to the court.
Since Soto was not a party to this motion, all references to "the defendants" refer to Jason Serra, Gerard Serra and Christopher Wagner.
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. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
The defendants admit that they owned the property where the dog was harbored, but claim that they did not own the dog or exercise any dominion or control over the animal. They argue that they had no knowledge of the dog's presence on the property, and, in fact, the lease prohibits pets at the premises; therefore, the plaintiff cannot establish a prima facie case under § 22-357.
The plaintiff argues that whether the landlords reserved control and dominion over the premises is a question of fact for the jury. She further argues that although the defendants claim that they did not exercise dominion or control over the animal, they do not offer any evidence as to who maintains control over the exterior yard where the dog was kept, nor do they mention how often they visit the property. Therefore, a question of fact remains regarding these dispositive issues.
General Statutes § 22-357 provides in relevant part: "If any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage, except when such damages 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 . . ."
"A `keeper' is defined as any person, other than the owner, harboring or having in his possession any dog. 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] . . ." (Internal quotation marks omitted.) Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). "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, cert. granted 278 Conn. 915, 899 A.2d 620 (2006). `A landlord . . . is not a keeper of a dog merely because a tenant owns a dog and keeps the dog on the premises.' (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 267, 815 A.2d 263 (2003). Connecticut courts have found, however, that a landlord can be liable as keeper of a dog `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.' Simmons v. Welch, 48 Conn.Sup. 564, 571, 854 A.2d 114 (2003). In such a case, `an inference is raised that the landlord exercises at least some degree of control over the dog, and thus . . . is its keeper.' (Internal quotation marks omitted.) Id." Gallagher v. Botti, Superior Court, judicial district of New London, Docket No. CV 4001484 (October 24, 2006, Hurley, J.T.R.).
In Auster v. Norwalk United Methodist Church, supra, 94 Conn.App. 622-23, the court held that a defendant employer was not a "keeper" of its employee's dog that lived in an apartment on the employer's premises. The court reasoned that the defendant did not feed, water, walk or provide shelter for the dog, but merely told the employee where and when the dog could go outside. Id., 622. The court found that this was not sufficient to establish control or possession over the dog. Id.
In Buturla v. St. Onge, 9 Conn.App. 495, 496 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987), the plaintiff was attacked by a dog while visiting one of the tenants in the defendant landlord's building. The court found that the landlords were not the keepers of the dog, reasoning that "[i]n the absence of an express or implied agreement to the contrary, the lessee of [an apartment] such as the one involved in this case acquires an exclusive occupancy and control of the [apartment] and, as incident thereto, the parts of the structure which form an integral part of the [apartment]." Id., 497.
The present case involves a slightly different fact pattern than the Auster and Buturla cases, however, because here, the dog was kept in the backyard of the premises, otherwise referred to as a common area, and the plaintiff was not attacked while within the confines of the tenant's apartment as was the case in Auster and Buturla. In Simmons v. Welch, supra, 48 Conn.Sup. 564, Judge Sheldon addressed the liability of a landlord pursuant to § 22-357 where the dog was kept in the backyard of the premises. In that case, the defendant landlord conceded that he allowed the tenants to use the common area for the dog, "a common area over which he, as landlord, retained complete control and responsibility whenever the [tenants] were not immediately present to supervise and control the dog themselves." Id., 573. The court concluded, based on this information, that there was a genuine issue of material fact as to whether the landlord had control over the dog, and, therefore, the court denied the motion for summary judgment. Id., 574; see also Gallagher v. Botti, supra, Superior Court, Docket No. 4001484 (holding that there was a genuine issue of material fact as to whether the landlord had control over his tenant's dog where the dog, which was chained to the house, bit the plaintiff.)
Other courts have found that the landlords maintained control over the dog where the common area where the dog was kept was not completely turned over to the tenants, but was simply available for their use. See Bailey v. Desanti, 36 Conn.Sup. 156, 158, 414 A.2d 1187 (1980).
In the present case, paragraph fourteen of the lease states: "Tenant may not bring or keep pets in the Leased Premises without the prior written consent of the Landlord in each instance." The defendants also submitted affidavits stating that they did not own a dog at the rental property, did not know that the tenant, Javier Soto, owned, harbored, house or cared for a dog on the premises, did not provide lodging shelter or refuge to the dog, did not exercise any dominion or control over a dog, and did not give permission for the tenant to keep, harbor, control or care for a dog at the premises.
The affidavits and the lease, however, are devoid of any indication of who had control over the common areas of the rental property. Paragraph ten of the lease states that the "Tenant shall be responsible for the prompt performance of all grass cutting, leaf removal and the clearance of snow and ice." This does not clearly indicate to the court that the landlord did not maintain control over the backyard. Although the complaint and the affidavits state that the defendant landlords lived in New York at the time of the incident, they do not tell the court anything about the amount of time they spent at the rental property, whether they frequently inspected the property, and ultimately to what extent they controlled the common areas of the property. The defendants also submit a portion of the plaintiff's deposition transcript where she states that the landlords do not live on the property to her knowledge. The landlord, however, may maintain control over the common areas of the rental property without living on the premises.
Therefore, this court finds that there is a genuine issue of material fact as to whether the defendants maintained control over the common areas of the rental property, specifically, the yard where the dog was kept. Although the landlords may not have cared for this dog, the dispositive factor in these types of cases where the dog was kept in the common areas is whether the landlord maintained control over the common area. There is no evidence in the present case to support or deny the landlords' control over the backyard.
CONCLUSION
Based on the foregoing, the motion for summary judgment is denied because the defendants have failed to meet their burden that there is no genuine issue of material fact as to who controlled the common areas of the rental property.
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