Opinion
LLICV166013860
07-25-2017
Richard Genalski v. Laurie Churchill et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, J.
This matter was tried to the court on June 27, 2017. The plaintiff, Richard Genalski, was represented by counsel. The defendants, Laurie Churchill, Gary Pereira, and Dallas Pereira, represented themselves. The plaintiff sued to recover monetary damages resulting from injuries received on June 21, 2013 when he was attacked by a German Shepard dog (" Wolfgang") owned and/or kept jointly by the defendants at their home in New Milford. The plaintiff's complaint is in two counts. The first count is brought under General Statute § 22-357, the strict liability statute for damage caused by a dog. The second count is brought under a negligence per se theory for violation of General Statutes § 22-364.
Sec. 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 the amount of 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 . . ."
Sec. 22-364 provides, in relevant part: " (a) No owner or keeper of any dog shall allow such dog to roam at large upon the land of another and not under the control of the owner or keeper . . ."
Facts Found
The plaintiff, now age 71, testified that prior to June 21, 2013 he had known the defendant, Laurie Churchill, for seven or eight years and that they had a common interest in dogs, hunting and fishing. He testified that he had visited at her house and that she had visited at his house. He testified that on June 21, 2013 Ms. Churchill invited him to come to her property and to swim in the pool. He testified that when he arrived at the house he walked to the back of the property and made his presence known to Ms. Churchill at the back gate to the property. He testified that Ms. Churchill told him to wait at the gate until she brought her three dogs inside. He testified that after the dogs were put away he entered through the gate and spent about 45 minutes on the back deck talking to Ms. Churchill. He testified that sometime during this period the three dogs came back onto the deck. He testified that he interacted in a friendly way with the dogs until Wolfgang attacked him without warning. The plaintiff testified that in the course of defending himself he fell over a fence. The plaintiff was bitten on the right wrist and right ankle. He did not seek qualified medical treatment but went to a veterinarian who allegedly cleaned the wounds and " stapled" the gash on the wrist. Subsequent medical treatment reveals that there may be " foreign bodies" beneath the healed wounds. In addition, the plaintiff claimed to have injured his shoulder falling over the fence.
Ms. Churchill testified that, although she had a friendly relationship with the plaintiff, she did not invite him to the property on the day he was attacked by Wolfgang and had no notice that he was coming. She testified that she was in the house when the plaintiff arrived and came through a gate and onto the back deck without announcing his presence. She came outside onto the deck and found the plaintiff defending himself against Wolfgang. She pulled Wolfgang away from the plaintiff. She testified that the plaintiff did not fall over a fence.
The court has weighed the evidence of the witnesses and finds that the testimony of Ms. Churchill is more credible in most respects, especially on the issue of the invitation. The court finds that the plaintiff entered the back gate and came onto defendants' deck without invitation on the day of the attack and that Ms. Churchill was not aware of the plaintiff's presence on the back deck until she came outside and found the attack in progress. On the other hand, the plaintiff had made social visits to the property before and his purpose for coming to the property was purely social. He had no intent to commit a crime or tort.
With respect to the injuries, the scars on the plaintiff's wrist and ankle were viewed by the court. These wounds undoubtedly caused some pain, but the pain would have been greatly reduced if the plaintiff had sought qualified medical treatment rather than relying on a veterinarian. The scars are not disfiguring and the plaintiff did not claim that he suffered any emotional upset or embarrassment as a result. The shoulder injury is rejected because the court does not find that the plaintiff proved that he fell over the fence. The court finds that the plaintiff incurred reasonable medical expense of $2, 604.80 for a belated visit to the New Milford Hospital some days after the injury. The court rejects the bills at New Milford Orthopedic because 1) part of the expense would have been unnecessary if the plaintiff had sought reasonable medical treatment immediately after the incident, and 2) part of the expense is for treatment to the shoulder which has been rejected.
Applicable Law
The burden of proof is on the plaintiff to prove all the essential allegations of the complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). In an ordinary civil case, a party satisfies his or her burden of proof if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than not that the fact or issue is true. Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968).
It is clear that § 22-364 does not apply to the facts of this case because all the witnesses agree that the attack did not occur while Wolfgang was roaming " at large upon the land of another." Therefore, the only issue is whether the plaintiff has sustained his burden of proof under § 22-357 as alleged in the first count. The plaintiff must prove three things: 1) that the defendants were the owners or keepers of Wolfgang; 2) that Wolfgang did damage to the body of the plaintiff; and 3) that the plaintiff was not " committing a trespass or other tort." The first two elements are not contested. The defendants' entire argument rests on their claim that the plaintiff was committing a trespass or other tort at the time of his injury.
" General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person." Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). There are two exceptions in the statute, one of which the defendants claim should apply: when the person injured is committing a trespass or other tort. The burden of proving that he was not a trespasser at the time of the attack is upon the plaintiff. Hanson v. Carroll, 133 Conn. 505, 507, 52 A.2d 700 (1947). The law in Connecticut is clear that simply because the plaintiff was on the defendants' property without invitation does not necessarily mean he was " committing a trespass or other tort" as those words are used in § 22-357. " [I]nterpreted literally it [the words " trespass or other tort] might include every kind of trespass or tort done to any person or property at any time. Such an interpretation would lead to results which surely were not in the legislative contemplation. The trespasses and torts which the framers of this exception had in mind were those which were committed upon the person or property of the owner or keeper, or his family, and other torts of like character, and which the dog, with his characteristic loyalty would instinctively defend and protect . . ." Dorman v. Carlson, 106 Conn. 200, 203, 137 A. 749 (1927). " The expression 'trespass or other tort' in the statute suggests more than a mere entry and the plain intent of the statute is to bar recovery where the plaintiff was committing or intending to commit some injurious act." Hanson v. Carroll, 133 Conn. 505, 510, 52 A.2d 700 (1947). " It would be a harsh doctrine to hold that, when one enters on another's land at a reasonable hour for the purpose of speaking to him, he commits a trespass that would call for protection or defensive action by the dog. The question of the liability of the landowner for injuries suffered by a trespasser upon the premises due to their condition is clearly distinguishable from that of the owner's liability under the statute in question to one who merely enters upon the land without doing or intending to do any harm." Id.
Discussion
Applying the applicable law to the facts dictates a finding that the plaintiff has sustained his burden of proving that he was injured by a dog owned and kept by the defendants while the plaintiff was not committing a trespass or other tort. Although the plaintiff had no invitation to the property, the plaintiff was friendly with Ms. Churchill, had visited at her house before and came through the back gate onto the deck to visit with Ms. Churchill and without any intent of committing an injurious act. The case law leads the court to conclude that the " trespass" exception to § 22-357 does not apply.
The court finds the liability in favor of the plaintiff and awards the following damages:
Economic Damages
$2, 604.80
Non economic Damages
$3, 000.00
Total
$5, 604.80
Judgment shall enter accordingly.