Opinion
No. CV 03-0830042
June 10, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is a two-count complaint against the defendants, David Galbraith and Carol Galbraith, in which the plaintiff Alice Yokabaskas seeks damages for personal injuries sustained when she was attacked by the defendants' dog. Plaintiff alleges that defendants are the owners of a large German Shepherd, which they keep at their residence in Simsbury, Connecticut. On December 25, 2001, the defendants' dog attacked the plaintiff while she was lawfully on the defendants' premises.
In count one plaintiff alleges that the defendants, as the dog owners are liable for the attack and the plaintiff's resulting injuries pursuant to General Statutes § 22-357, the dog bite statute. In count two of the complaint, the plaintiff alleges that her injuries were the result of the defendants' negligence in that they failed to properly restrain the dog to prevent it from attacking others, failed to properly train the dog not to attack without provocation, and that they knew, or reasonably should have known of the dog's dangerous propensity, and should have warned the plaintiff accordingly. In her prayer for relief, the plaintiff seeks punitive damages.
On January 20, 2004, the defendants filed this motion to strike count one of the plaintiff's complaint, as well as the plaintiff's claim for punitive damages.
I.
Section 22-357 of the General Statutes 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 damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass."
The defendant argues that count one should be stricken, because the plaintiff failed to join a necessary party, namely the person taking care of the dog.
Specifically, the defendants argue that even though they were the owners of the subject dog at the time of the alleged attack, Elizabeth Marshall "was taking care of the dog in question, was the keeper of the dog and had possession of the dog as the Defendant owners were away." The defendants argue that as the "keeper of the dog," Marshall is liable to the plaintiff under the statute, and is, therefore, an indispensable party to this action.
In ruling on a motion to strike, the court is "limited . . . to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted. Doe v. Marselle, 38 Conn. App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). In this instance, the defendants argue that the plaintiff failed to join Elizabeth Marshall to the action, and that she is an indispensable party because she was taking care of the defendants' dog at the defendants' premises at the time of the attack. The plaintiff did not mention Elizabeth Marshall or her involvement with the subject dog in her complaint.
However, liability under the [dog bite] statute is not visited upon owner and keeper jointly, but in the alternative. Larsen v. MacDonald, 5 Conn. Sup. 150, 153 (1937).
Our appellate court has stated:
[Section] 22-357 was enacted to create strict liability in the owner or keeper to third parties for injuries caused by a dog . . . It is an example of the common law principle that, as between two innocent persons, namely the injured third party and the owner or keeper, the loss should fall on the one who caused it, rather than on the one who had no part in doing so.
Stokes v. Lyddy, 75 Conn. App. 252, 266-67, 815 A.2d 263 (2003).
Since it is alleged that the defendants are the owners of the dog, the plaintiff is entitled to bring a cause of action against them or against the keeper of the dog under the dog bite statute. It is concluded, therefore, that Marshall is not an indispensable party, since her presence is not absolutely required in order to assure a fair trial. Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990). For the above reasons, the defendants' motion to strike count one of the plaintiff's complaint is denied.
II.
The defendants also move to strike the portion of the plaintiff's prayer for relief that seeks punitive damages on the grounds that there is no statutory authority for such relief under § 22-357 and because she has not pleaded any facts that are sufficient to support the awarding of punitive damages and exemplary damages. To support an award of punitive damages, the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 778, 717 A.2d 150 (1998).
The defendants maintain that the plaintiff has not alleged any conduct by the defendants that rises to the level of reckless, intentional or wanton violation of the rights of others. The plaintiff's complaint, even read in the light most favorable to the nonmoving party, does not allege any reckless, intentional or wanton conduct by the defendants.
The motion to strike the claim for exemplary damages is granted.
Wagner, J. Judge Trial Referee