Opinion
No. CV 10 5014034
June 24, 2011
MEMORANDUM OF DECISION
Facts and Procedural History
This action arises from injuries sustained by the minor plaintiff, Abigail Sheehan, resulting from a dog bite. In her seven-count revised complaint, filed on February 17, 2011, the plaintiff alleges that her father, Thomas Sheehan, Mary E. Aragon, and Chad Navin are liable pursuant to the dog bite statute, General Statutes § 22-357, and for their negligence in keeping and failing to protect the plaintiff from the dog. On May 6, 2011, this action was withdrawn against Thomas Sheehan, it remains pending only against Aragon and Navin.
On February 28, 2011, Aragon, the defendant for the purposes of this decision, filed her motion for summary judgment and memorandum in support with supporting exhibits. On May 20, 2011, the plaintiff filed her objection and memorandum in opposition with supporting exhibits. The parties appeared for oral argument at short calendar on May 23, 2011.
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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
Count Two: Strict Liability Pursuant to § 22-357
In count two, the plaintiff alleges: "At all times relevant hereto, the defendant . . . owned, maintained and/or controlled a residence located at 331 Timber Ridge Road, Middletown, CT . . . On May 15, 2010 and for some period of time prior thereto, Chad Navin, was the keeper and/or harborer of an American Pit Bull Terrier-mix, and at the premises at 331 Timber Ridge Road, Middletown, Connecticut by invitation and or acquiesence of the defendant . . . On May 15, 2010, at approximately 10:00 p.m., the plaintiff was a guest on the property at Timber Ridge Road, Middletown, CT at the invitation of the defendant . . . On said date and said time, the plaintiff . . . was attacked by said dog in the back yard of the aforementioned premises owned, maintained and/or controlled by the defendant . . . At all times mentioned herein, the plaintiff . . . was not engaged in the commission of a trespass or other tort and was not teasing, tormenting, or abusing the American Pit Bull Terrier-mix . . . The defendant . . . is liable for said attack and resulting injuries, losses and damages of the plaintiff . . . resulting there from in accordance with the provisions of § 22-357 of the Connecticut General Statutes as keeper of this aforesaid American Pit Bull Terrier-mix."
The defendant argues that she is entitled to summary judgment as to this count because there is no genuine issue of material fact that she is not the owner or keeper of the dog at the time of the subject incident. General Statutes § 22-357, in relevant part, provides: "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 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 . . ."
In Auster v. Norwalk United Methodist Church, 286 Conn. 152, 154, 943 A.2d 391 (2008), the Supreme Court affirmed the Appellate Court's finding that the evidence was insufficient to hold the defendant employer strictly liable to the plaintiff as a keeper of the dog under § 22-357, given that there was no evidence that the employer exerted control over the dog in a manner similar to that of an owner. The court explained: "Under General Statutes § 22-327 (6), 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 [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession . . . One who treats a dog as living at his house and undertakes to control his actions is [a] . . . keeper . . ." (Citations omitted; internal quotation marks omitted.) Id., 160.
Relying on its prior decision in Falby v. Zarembski, 221 Conn. 14, 602 A.2d 1 (1992), the Auster court considered several factors in its determination of whether the defendant harbored or had possession of the dog including whether it fed, gave water to, housed, or otherwise cared for the dog. See id., 160-61. "[A] nonowner of a dog cannot be held strictly liable for damage done by the dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done. As we indicated in Falby, such proof generally will consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred." Id., 161-62.
In Murphy v. Buonato, CT Page 14127 42 Conn.App. 239, 244-46, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997), 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. In that decision, the court noted: "the determination of whether the plaintiff was a keeper is a question of fact . . ." Id., 242. Consequently, Connecticut courts have denied summary judgment when presented with evidence that the defendant fed, gave water to, housed, or otherwise cared for the dog. By example, in Pearson v. Czekaj, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003253 (January 9, 2007, Aurigemma, J.) ( 42 Conn. L. Rptr. 653), a dog was brought to an apartment, shared by the minor plaintiff and her mother, and remained in the residence for four days when it allegedly bit the minor plaintiff. It was undisputed that during the four days that the dog resided in the apartment, the mother walked him and fed him. See id.
Relying on Murphy v. Buonato, supra, 42 Conn.App. 250-51, the court concluded that the mother's "dominion and control" over the dog "made her a keeper within the meaning of the statute." Id., 654. As a result, the court denied summary judgment. See id.; see also Crenshaw v. Fleming, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 6001719 (September 18, 2009, Holden, J.) ( 48 Conn. L. Rptr. 550, 551-52) (issue of fact as to whether plaintiff, who worked at the kennel where the dog was being boarded and had some responsibility for grooming him, had sufficient dominion and control over the dog such that she can be considered to have been his keeper); contra Prucinsky v. Evans, 47 Conn.Sup. 655, 659, 822 A.2d 390 (2003) (dog walker was held not to be a keeper or owner of the dog for the purpose of establishing that the defendant was liable for damage done by the dog under § 22-357).
Here, the court has been presented with the following evidence. In support of its motion, the defendant provides the court with her January 21, 2011 affidavit. She attests: "On May 15, 2010, a certain residence located at 331 Timber Ridge Road, Middletown, Connecticut (the `premises'), was co-owned by myself and co-defendant Thomas P. Sheehan. Sheehan is the minor [plaintiff's] father . . . On May 15, 2010, the [plaintiff] was spending the weekend at the premises with her father and the other individuals present there . . . Codefendant . . . Navin is my son, and on May 15, 2010, Navin was the owner and keeper of the American Pit Bull Terrier-mix dog . . . On May 15, 2010, Navin was not residing at the premises and the dog was not kept at the premises. Rather, Navin resided with his girlfriend, Amanda, and the dog, at the home of Amanda's mother . . . On May 15, 2010, Navin first arrived at the premises with the dog between approximately 5:00 and 5:30 p.m. Navin was visiting me and others for the evening at the premises . . . I was never in possession or control of the dog, including without limitation on May 15, 2010 . . . I have never had the responsibility of housing, keeping or caring for the dog, and the dog has never resided at the premises . . . May 15, 2010 was the first date the dog had visited or been present at the premises . . . At and prior to the time of the incident, I never fed, exercised or sheltered the dog . . . Prior to the date of the incident . . . I did not know of any history of biting, or other inappropriate or aggressive behavior by the dog."
The plaintiff offers the following evidence in opposition to the defendant's motion. First, the plaintiff offers her May 18, 2011 affidavit. She attests: "I understand and believe in my obligation to tell the truth in this affidavit. I was attacked by a dog on May 15, 2010 at 331 Timber Ridge Road, Middletown, Connecticut (the `property') . . . Before May 15, 2010, I visited the property less than six times . . . One time when I visited I saw the dog Tyson at the property . . . My father and Mary Aragon told me that they let Tyson stay at the property sometimes . . . Once, when I visited the property I saw a big olive green dog bed that looked like a dog slept on it . . . At the property, in the garage, my father and Mary Aragon have rubber balls, a rubber bone, a rubber `Kong' dog toy and a dog leash hanging on the wall of the garage . . . At the property, my father and Mary Aragon have a big metal pet food dish and smaller plastic pet dishes kept on a kitchen counter that the cat would use . . . The night before May 15, 2010, I slept over at my father and Mary Aragon's house . . . On May 15, 2010, Chad Navin showed up with the dog Tyson at about 1 p.m . . . After Chad Navin showed up I played alone with Tyson in the front yard . . . I saw Mary Aragon give Tyson a bowl of water two or three times. Tyson drank a lot of water that day . . . After a while we all went inside the house . . . I saw my father and Mary Aragon feed Tyson dog snacks . . . When it started to get dark, we went outside to the porch and my father cooked food on the grill . . . My father and Mary Aragon fed Tyson food which was cooked on the grill . . . When we finished eating everyone else played dominoes on the Back porch . . . When Tyson was sitting near the door to the basement, I went over and pet him . . . I stopped petting him and Tyson bit me and knocked me down."
At oral argument, the defendant raised an argument regarding the plaintiff's ability to provide an affidavit to the court because of her minority. The court rejects this argument for the following reasons. Practice Book § 17-46, in pertinent part, states: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Therefore, "[§ 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
Moreover, § 54-86h, in relevant part, states: "No witness shall be automatically adjudged incompetent to testify because of age . . . The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact." Children much younger than the plaintiff have been found competent to offer testimony. See State v. Holmes, 94 Conn.App. 494, 892 A.2d 969, cert. denied, 278 Conn. 908, 899 A.2d 35 (2006) (trial court did not abuse its discretion in finding that eight-year-old child witness, who was only six when the murder occurred, was competent to testify in murder prosecution).
Clearly, the plaintiff has personal knowledge of the events that gave rise to this action, as she was the victim of the dog attack. Moreover, her affidavit contains facts that would be admissible at trial. Finally, the plaintiff attested that she understood and believed in her obligation to tell the truth. Therefore, the court may properly consider the plaintiff's affidavit in its determination of this motion.
Additionally, the plaintiff provides the court with a May 15, 2010 Middletown Police Department Incident Report, which details the incident. It states, in part: "The complaintant [the plaintiffs mother, Merryll Macek] stated her ex-husband [Sheehan] told her that the dog belonged to the son of Mary Aragon, who is the live-in girlfriend of Thomas Sheehan. Mary's son, Chad Navin, is the owner of the dog, a 18 month old male Pit-Bull named `Tyson.' . . . Navin stated that he was visiting with his mother and Sheehan . . . and that `Abby' was playing with the dog all day." The plaintiff also provides the deposition of Chad Navin, taken September 23, 2010. When asked "Was he your dog at the time of this bite?" he answered:
"Yeah, he was my dog."
In light of this evidence, the court finds that while it is undisputed that the defendant was not the owner of the dog, there is a genuine issue of material fact as to whether she was its "keeper." The court has been presented with evidence that the dog had visited the defendant's home several times prior to May 15, 2010, that there was a dog bed at the defendant's home, that there were dog toys and a leash at the defendant's home, that there were pet food dishes at the home, and that on May 15, 2010, the defendant gave the dog food and water. As a result, summary judgment is denied as to count two.
Count Five: Negligence
In count five, the plaintiff incorporates the allegations contained in count two and further alleges: "The injuries and damages sustained by the plaintiff . . . were proximately caused by the negligence and carelessness of the defendant . . . in one or more of the following respects, in that she: allowed a dangerous dog kept on its premises to roam about its premises where the dog was a threat to others, including the plaintiff; allowed a dog of the American Pit Bull Terrier-mix family, known to be violent and vicious, to roam freely; failed to take steps to protect the plaintiff and others from the threat of a dangerous animal kept on its premises; failed to remove the American Pit Bull Terrier-mix from the premises despite knowledge of the animal's dangerous propensity; failed to warn the plaintiff, and visitors of the presence of the American Pit Bull Terrier-mix, despite knowledge of the animals' dangerous, vicious, and violent propensities; failed to remove the American Pit Bull Terrier-mix from the premises, although she knew that it was dangerous and likely to attack others, including the plaintiff, failed to keep the dog indoors despite knowledge of it's dangerous, vicious and violent propensities; failed to erect an adequate fenced in area for the American Pit Bull Terrier-mix, known to be dangerous, vicious and have violent propensities; and failed to take any steps to protect the plaintiff from the serious risk of foreseeable harm associated by allowing a dangerous and vicious dog to be kept on the premises, which she managed, maintained and/or controlled."
"The essential element of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 630, 910 A.2d 209 (2006). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
The defendant argues that to impose liability in negligence, she must be an owner or keeper of the dog. Additionally, she contends that she had no reason to foresee the injuries claimed and the dangerous propensities of the dog. Significantly, in Giacalone v. Housing Authority of Wallingford, 122 Conn.App. 120, 121, 998 A.2d 222, cert. granted, 298 Conn. 906, 3 A.3d 69 (2010), the court held that in light of the holding in Auster v. Norwalk United Methodist Church, supra, 286 Conn. 152, a common-law negligence claim brought against a landlord in a dog bite case should not be stricken as insufficient merely because the landlord was not alleged to be the owner or keeper of the dog. In Giacalone, however, the defendant knew that the dog was on the premises despite a prohibition in the lease and that it was dangerous and aggressive. It ordered that the other tenants remove the dog from their unit, but never followed up on its order. See id., 121-22.
In reaching its holding, the court explained: "A number of other jurisdictions also have considered whether to permit a common-law cause of action in a dog bite case against a landlord who is not the owner or keeper of the dog . . . These jurisdictions, more often than not, have recognized such a cause of action against the landlord . . . Several states having strict liability dog bite statutes for claims against the owner or keeper of a dog also have permitted an injured party to sue the landlord under a common-law negligence theory when the landlord did not own or keep the dog . . . In light of our Supreme Court's decision in Auster, we conclude that such a cause of action also may be viable in Connecticut." (Citations omitted.) Id., 125.
The court further reasoned: "We are aware of no Connecticut appellate case law prior to Auster that recognized a cause of action against a landlord in such a circumstance. We conclude, however, that our Supreme Court opened the door in Auster and that it did not set forth such a narrow ruling. In Auster, our Supreme Court remanded the case for a new trial to give the plaintiff `the opportunity to establish her common-law negligence claim against the defendant.' . . . If such an action would not lie as a matter of law, we can discern no reason why the court would have remanded for a new trial on that claim." (Citation omitted.) Id., 125-26.
As previously discussed, with regard to the plaintiff's claim that the defendant is strictly liable pursuant to § 22-357, there are genuine issues of material fact as to whether the defendant was the "keeper" of the dog. This finding similarly applies with regard to the plaintiff's claim pursuant to a theory of common law negligence. Moreover, the Appellate Court's decision in Giacalone seems to indicate that under certain circumstances, a party who is not the owner or keeper of the dog may still be liable under a common law negligence theory. As a result, the court is satisfied that there are mixed questions of fact and law sufficient to defeat the defendant's motion as to count five.
Conclusion
For all of the foregoing reasons, the defendant's motion for summary judgment is hereby denied in its entirety.