Opinion
No. CV04-4000826
June 23, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#108)
In this action the Plaintiffs claim that on or about January 23, 2003, the minor Plaintiff; Joshua Wielock, was bitten by a German Shepard dog while on the premises known as 5 Cherry Street, Stafford Springs, Connecticut. The Plaintiffs allege that the Defendants, John Roy and Yvonne Roy, dba, JY Properties, (the "Roys") owned those premises and leased them to Christine Finlayson, the owner of the dog. The Plaintiffs allege that the Roys permitted and consented to the keeping of the dog on the premises, that pursuant to the lease they controlled the presence of the dog on the premises and had the power and authority to remove the dog from the premises by compelling the tenant to do so or by evicting the tenant. In Counts Five and Six of the complaint the Plaintiffs claim a cause of action in negligence against the Roys, in that they had control over the dog and had a duty to maintain the premises in a safe condition and free from dangerous conditions, such as a dog with dangerous propensities, and they permitted the dog to remain on the premises and failed to remove the dog. In Counts Seven and Eight, the Plaintiffs claim that the Roys were the keepers of the dog and are liable, pursuant to General Statutes § 22-357, for the attack and the resultant injuries, losses and damages.
The Roy Defendants have moved to strike Counts Five, Six, Seven and Eight. They claim that the allegations of these counts are insufficient as a matter of law in that a landowner owes no legal duty to third persons for injuries inflicted by a tenant's dog and the conclusory allegation that the Roys were "keepers" of the dog is insufficient to state a cause of action pursuant to General Statutes § 22-357.
"`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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. `A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we 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.' (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). `A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.' Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992)." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
As to Counts Five and Six, the Roys claim that these counts should be stricken because a landowner owes no duty to third persons for injuries inflicted by a tenant's dog. They cite the decision in Stokes v. Lyddy, 75 Conn.App. 252 (2003). There the issue was whether a landlord owes a duty, at common law, to a nontenant, who, while not on the leased premises, is bitten by a tenant's dog. The court characterized the Plaintiff's argument there as attempting to extend the liability for a dog bite to nonowners and nonkeepers of dogs based on the mere ownership and control of the property instead of the dog. The court held that the common-law duty should not be extended to landlords who are not owners or keepers of the dog.
The Plaintiffs here argue that they have pled a cognizable cause of action based on the common-law negligence theory of premises liability. They claim that the Roy Defendants, as the landlord, consented to and knew of the dog on the premises, they knew of its dangerous propensities, and had the authority to remove the dog to eliminate the danger but failed to do so.
The principles of premises liability were discussed by the court in Stokes as it evaluated the Plaintiff's claim there that the Defendant landowner should be liable for injuries sustained by a nontenant off the premises who was bitten by a tenant's dog. The court stated: "The general rule is that a landlord has a duty reasonably to maintain property over which he exercises control. See W. Prosser W. Keeton, Torts (5th Ed. 1984) § 57. That duty serves to protect entrants (invitees, licensees, trespassers) and tenants. The degree of care owed to an entrant depends on the entrant's status. See id., §§ 58-61, p. 393-26 . . . With respect to a landlord's duty to entrants, our Supreme Court has stated that `under the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control.' Gore v. Peoples Savings Bank, 235 Conn. 360,373,665 A.2d 1341 (1995). `[A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the . . . In other words, [t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the building over which he reserves control.' (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 65 Conn.App. 1, 14, 781 A.2d 482 (2001), rev'd on other grounds, 261 Conn. 247, 802 A.2d 63 (2002). `There could be no breach of the duty resting upon the [landlords] unless they knew of the defective condition or were chargeable with notice of it because, had they exercised a reasonable inspection of their premises, they would have discovered it . . . Thus, liability of a landlord for damages resulting from a defective condition in an area over which the landlord exercises control generally depends upon proof that the landlord received either actual or constructive notice of the condition prior to the time of the plaintiff's injuries . . . Liability also usually depends upon proof that the landlord failed to remedy the defective situation in a reasonable period of time after receipt of notice.' (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 373." (Footnote omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 260-62 (2003).
Counts Five and Six of the complaint here base the Plaintiffs' claims of negligence on the allegations that the Roy Defendants controlled the presence of the dog on the subject premises where the minor Plaintiff was bitten and that they had the power and authority to remove the dog from the premises by compelling the tenant to do so or by evicting the tenant, and that the Roys, who had control over the dog, had a duty to maintain the subject premises over which they exercised control in a reasonably safe condition, free from dangerous conditions or dangerous instrumentalities, such as a dog with dangerous propensities. Even if we assume that these allegations are sufficient to support a claim that the Roy Defendants had "control over the dog," the allegations of Counts Five and Six are not sufficient to impose liability upon them. "`At common law, only an owner or keeper of a domestic animal owed a duty of reasonable care to others . . . Simply stated, to be liable, one must have control of the animal.' Stokes v. Lyddy, 75 Conn.App. 252, 265 (2003). `[T]he Connecticut Appellate Court [has] declined to extend the common-law duty of an owner or keeper of an animal to a non-owner and nonkeeper of an animal . . . The Appellate Court rejected the argument that a . . . duty is based on mere ownership and control over the property instead of over the dangerous instrumentality, in this case the dog, or the activity.' (Emphasis added.) Wilson v. S. Vinayak, LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0102745 (September 8, 2004, Silbert, J.); see Stokes v. Lyddy, supra, 75 Conn.App. 252. `It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and failure to do so is negligence that makes the owner liable for its consequences.' Id., 265-66. In a common-law negligence action, `[e]ven a dog's owner is not liable to persons injured by the dog unless (1) the dog had vicious propensities (2) of which the owner was aware and (3) the owner failed to exercise reasonable care in restraining the dog.' Murphy v. Buonato, 42 Conn.App. 239, 253 (1996). Therefore, `[i]n order to recover damages for injuries caused by a dog bite based on [common-law] negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities.' Wilson v. S. Vinayak, LLC, supra, Superior Court, Docket No. CV 03 0102745." Silano v. Exxonmobil Oil Corp., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 04 0409151 (February 24, 2005, Doherty J.).
In Santana v. Mounds, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 99 0591027 (March 6, 2000, Beach, J.), it was alleged in the complaint that the Defendant was negligent "[i]n that the Defendant knew or should have known that the pitbull is a vicious dog in its own propensities but allowed the dog to use the common area of his property anyway." The court noted that "[i]n order to recover damages for injuries caused by a dog bite based on common-law negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities. (Emphasis added.) See Basney v. Klema, 2 Conn. Cir.Ct. 538, 544,203 A.2d 95 (1964). `Propensity' is defined in Webster's Dictionary as `a natural inclination: innate or inherent tendency.' See Webster's Third New International Dictionary (1976). The defendant argues that not every pit bull is vicious, and this may be so. But if the plaintiff proves the allegations, here somewhat paraphrased, that the defendant knew or should have known that all pitbulls are vicious and the dog in question is a pitbull, then the syllogism is completed by the conclusion that the defendant knew or should have known that this dog was vicious. The cause of action has been sufficiently alleged so that a jury could find that the elements as set forth in Basney, supra, have been satisfied." The complaint here does not contain the type of allegations found sufficient in Santana to support a common-law negligence claim against a property owner for injuries from a dog bite by a tenant's dog.
Even if we view the Plaintiffs' claims in Counts Five and Six as defective premises liability claims, as the Plaintiffs argue, they are legally insufficient. In Knighton v. Heller, Superior Court, Judicial District of Litchfield at Litchfield Docket No. 03-0090861-S (November 26, 2003, Brunetti, J.), a case where the plaintiffs' claims were very similar to those made here in that they claimed damages for injuries received by the minor plaintiff when she was bitten inside the rental property of the defendant-landlord, the court stated: "Connecticut Superior Court judges are split on the issue of whether a property owner can be held liable for a dog bite under common law where no control over the dog is exercised, and the Supreme and Appellate Courts have not decided the issue. Thomas v. Costanti, Superior Court, judicial district of Waterbury, Docket No. CV 000160056 (November 14, 2000, Doherty, J.). `The Superior Court cases that have held that a landlord may be liable for negligence when a tenant's dog attacks another person have based it on whether the landlord had knowledge of the dog's dangerous propensities.' Id. `In order to recover damages for injuries caused by a dog bite based on [common-law] negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities.' Goulet v. Defilippo, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0098594 (August 8, 2003, Aurigemma, J.); See Basney v. Klema, 2 Conn. Cir. Ct. 538, 544, 203 A.2d 95 (1964); Reed v. Comen, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 311292 (April 29, 1998, Mottokse, J.); CT Page 11487 Duhaime v. Tron Mills, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 034521 (June 30, 1992, McGrath, J.) ( 7 Conn. L. Rptr. 4); Vasquez v. Hooks, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 394001 (February 10, 1992, Schaller, J.); see also Portnoy v. King, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 087873 (November 6, 1990, Katz, J.) ( 2 Conn. L. Rptr. 713). `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 00801193 (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').' Schatz v. Frederick, Superior Court, judicial district of New Haven, Docket No. CV 030474928 (June 16, 2003, Harper, J.) ( 34 Conn. L. Rptr. 744). The above referenced cases illustrate the Appellate Court's decision in Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d 263 (2003), which relied upon the principle that a landlord's 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.)" In Knighton the court granted the defendant's motion to strike because the plaintiffs did not allege any facts in support of their claim that the defendant had knowledge or should have had knowledge of the tenant's dog's dangerous propensities. Other court's have also found that the allegations that the defendants knew or should have known of the dog's dangerous propensities, in the absence of facts supporting such conclusions, are insufficient to withstand a motion to strike. As the court stated in Wilson v. S. Vinayak, LLC, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV 03 0102745 S (September 8, 2004, Silbert, J.), "`The Superior Court cases that have held that a landlord may be liable for negligence when a tenant's dog attacks another person have based it on whether the landlord had knowledge of the dog's dangerous propensities . . . In order to recover damages for injuries caused by a dog bite based on [common-law] negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities.' (Citation omitted; internal quotation marks omitted.) Knighton v. Heller, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090861 (November 26, 2003, Brunetti, J.). `[I]f 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.' Schatz v. Frederick, Superior Court, Docket No. CV 03 0474928, judicial district of New Haven, (June 16, 2003, Harper, J.) (34 Conn. L. Rptr. 744)." In Wilson the complaint alleged that the "the defendant `knew or should have known that the [dog] had vicious propensities.'" The court found, however, that the plaintiffs had not supported this conclusory statement with any facts and therefore it was insufficient to survive a motion to strike. The court continued: "`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. If the plaintiffs' complaint `alleges no facts to support its legal conclusion with respect to the defendant's notice of the dog's vicious propensities [the Court should] reach the inescapable conclusion that the complaint is legally insufficient.' (Internal quotation marks omitted.) Schatz v. Frederick, supra." Here there are no allegations of fact in the complaint that would support the claims that prior to the attack alleged in the complaint the dog had dangerous propensities and that the Defendants knew or should have known of such propensities. In the absence of such factual allegations Counts Five and Six are legally insufficient.
As to Counts Seven and Eight, the Plaintiffs have submitted no argument in opposition to the Motion to Strike those counts. In any event, in those counts the Plaintiffs claim a cause of action against the Roy Defendants pursuant to General Statutes § 22-357. That statute 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 support of their claims the Plaintiffs allege that the Roy Defendants were the "keepers" of the dog that attacked the minor Plaintiff. However, the bare allegation that the Defendants were the keeper without any supporting actual allegations is a mere conclusion of law that will not withstand a motion to strike. Wilson v. S. Vinayak, LLC, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV 03 0102745 S (Silbert, J. September 8, 2004).
The Motion to Strike Counts Five, Six, Seven and Eight is granted.
Jane S. Scholl, J.