Opinion
No. 568473
March 7, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #105
FACTS
On February 11, 2004, the plaintiff, Laurice Cope, commenced this present action by filing a two-count complaint on behalf of her minor daughter, Julia Cope, against the defendant, Heather Belisle. Count one of the complaint alleges that the defendant is liable for her daughter's dog bite injuries pursuant to General Statutes § 22-357 and count two alleges that the defendant is liable for all necessary medical bills arising from the dog bite. The plaintiff alleges that on July 5, 2003, Julia Cope was lawfully upon the defendant's property located at 81 Dydo Drive, Uncasville, Connecticut when she was attacked and bit in the face by a dog. The plaintiff avers that Julia Cope suffered severe injuries and losses as a result of the incident, including lacerations, puncture wounds, abrasions, visible facial scarring and extreme emotional distress. The plaintiff further alleges that the defendant was the owner and/or keeper of a dog that she kept and/or allowed to stay at her home.
General Statutes § 22-357 states: "If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, 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. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action."
On May 7, 2004, the defendant filed a motion for summary judgment accompanied by a memorandum of law in support with a supporting sworn affidavit dated April 22, 2004. On October 22, 2004, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment accompanied by uncertified deposition testimony. This matter was heard on the short calendar on November 8, 2004, and the defendant's motion for summary judgment is presently before this court.
DISCUSSION
The Practice Book sets forth the standard for granting a motion for summary judgment. 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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]." (Citations omitted; internal quotation marks omitted.) CT Page 4093 Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The defendant moves for summary judgment on the ground that the defendant is not the owner or the keeper of the dog within the meaning of General Statutes § 22-357 that allegedly attacked the plaintiff; therefore, she is entitled to judgment as a matter of law. In support of her motion for summary judgment the defendant submits her sworn affidavit. The plaintiff argues in opposition that there is a genuine issue of material fact as to whether the defendant acted as a keeper of the dog within the meaning of General Statutes § 22-357. In support of her opposition to the motion for summary judgment the plaintiff submits the uncertified deposition testimony of the defendant, Heather Belisle.
General Statutes § 22-357 states in relevant part: "If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, 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." General Statutes § 2-357. "To prevail On a claim of strict liability under this statute, the plaintiff must plead and prove, inter alia, that at the time the plaintiff suffered her complained-of injuries, the defendant, if he or she was not a minor, was an `owner or keeper' of the dog that caused such injuries." Simmons v. Welch, 48 Conn.Sup. 564, 568, 854 A.2d 114 (2003). In order to elaborate on the definition of the term "keeper" within the contextual meaning of the statute other essential terms must first be clarified. Although the term "owner" is not defined within the text of the statute, it has been defined as "the person to whom the dog belongs, in the sense that he has title to it and may lawfully have and hold it as his own personal property." Id., 569.
"The term keeper is defined in the General Statutes as any person, other than the owner, harboring or having in his possession any . . . General Statutes § 22-357(6). Therefore, under § 22-357(6) a keeper can be either a harborer or possessor of the dog. In Buturla v. St. Onge, 9 Conn.App. 495, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987) . . . [the court] stated that the term harborer means one who treats a dog as living in his home and undertakes to control the dog's actions. Id., 497 . . . In Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992), our Supreme Court further explained that the term harborer includes one who provides lodging, shelter or refuge in addition to possession with control." (Citation omitted; internal quotation marks omitted.) Strokes v. Lyddy, 75 Conn.App. 252, 267, 815 A.2d 263 (2003).
The defendant in her memorandum of law in support of the motion for summary judgment argues that she is not the owner or keeper of the dog; therefore, she cannot be held liable under the statute. The defendant asserts that she is not the owner or keeper of the dog because the dog does not live at her residence, she does not contribute financially for the care of the dog, and does not wash, feed, or walk the dog. The defendant further argues that the actual owner of the dog is Stephen Reynolds, the defendant's boyfriend. In support of her motion for summary judgment the defendant has submitted her sworn affidavit. Then defendant in her affidavit avers that "[o]n July 5, 2003, she was not the owner and/or keeper of a dog that was at my home at 81 Dydo Drive, Uncasville, Connecticut."
The plaintiff in her memorandum of law in opposition to the motion for summary judgment argues that there exists a genuine issue of material fact. The plaintiff argues that the defendant was the dog's keeper because she harbored and/or possessed the dog at or during the time of the incident. Specifically, the plaintiff argues that a genuine issue of material fact exists as to whether the defendant exercised control over the dog, thereby bringing her within the purview of the statute. In support of the plaintiff's memorandum in opposition to the motion for summary judgment, the plaintiff has submitted the defendant's uncertified deposition testimony. The plaintiff cites to the defendant's testimony in which she testified that she allowed the dog to stay overnight at her home the evening prior to the incident; that on occasion the dog was permitted to sleep in her bedroom; that her boyfriend Stephen would bring the dog over when he would go to work from 2:00 p.m. to 8:00 p.m.; that she would feed and play with the dog and walk the dog to the bathroom. "This court [however] has previously ruled that it will not consider uncertified deposition testimony when deciding a motion for summary judgment." McKnerney v. Beebe, Superior Court, judicial district of New London, Docket No. 563040 (February 25, 2004, Hurley, J.T.R.).
When ruling upon a motion for summary judgment "[t]he courts hold the movant to a strict standard . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, supra, 269 Conn. 405-06.
"Averments contained in an affidavit that are merely denials of the allegations in a complaint are an insufficient basis for the rendition of summary judgment. Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995). Moreover, a party's conclusory statements, in the affidavit and elsewhere may not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996). It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard. Evans Products Co. v. Clinton Building Supply Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978)." (Internal quotation marks omitted.) Lumber v. Chase Associates, Superior Court, judicial district of Hartford, Docket No. 02 0815008 (November 29, 2004, Wagner, J.T.R.). In this case, the defendant in support of her motion for summary judgment has only submitted her sworn affidavit in which she makes the sole averment that "[o]n July 5, 2003, she was not the owner and/or keeper of a dog that was at my home at 81 Dydo Drive, Uncasville, Connecticut." This court finds that this conclusory statement creates a self-serving affidavit. Conclusory statements or mere denials of allegations in the complaint within an affidavit provide an insufficient basis for the rendition of summary judgment. See Gupta v. New Britain General Hospital, supra, 239 Conn. 583. The defendant's affidavit does not establish the absence of a genuine issue of material fact; therefore, the defendant has not met her burden of proof. Even though uncertified depositions are generally not accepted for consideration when deciding a motion for summary judgment the defendant's motion still fails because she has not met her burden of proof in this case.
CONCLUSION
Based upon the foregoing, there exists a genuine issue of material fact as to whether the defendant was the keeper of the dog within the meaning of § 22-357 at the time of the incident. Accordingly, the defendant's motion for summary judgment is hereby denied.
D. Michael Hurley, JTR