Opinion
No. CV 06-500 20 04 S
March 17, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Facts
On February 6, 2006, the minor, Christian Oyola, through his mother and next friend, Simone Bowen, and Simone Bowen, individually, commenced this action by service of process against Irene Sutton and Irene Adams. The plaintiffs filed the action against Irene Sutton and Irene Adams for events which allegedly occurred on August 2, 2005, wherein the dog of Irene Sutton allegedly attacked Christian Oyola causing serious injury. On November 19, 2007, the plaintiffs filed a four-count amended complaint separating out the causes of action against Irene Sutton and Irene Adams, respectively. The first and second counts of the amended complaint are directed at Irene Sutton and are not the subject of the current motion for summary judgment. The third count of the amended complaint sounds in negligence, and alleges that the defendant, Irene Adams, as owner of the premises where the dog bite occurred was, inter alia, negligent in allowing the tenant, Irene Sutton, to keep and harbor a dog she knew to be vicious. The fourth count of the complaint reiterates the claims of the third count, but claims monetary damages for Simone Bowen, as parent of Christian Oyola.
Christian Oyloa and Simone Bowen are hereinafter referred to collectively as the plaintiffs.
A motion for summary judgment was filed on September 20, 2007, by the defendant, Irene Adams, on counts three and four of the amended complaint. A memorandum of law was attached thereto. The plaintiffs filed a timely memorandum in opposition.
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.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The defendant moves for summary judgment on the ground that there are no genuine issue of material fact and she is entitled to judgment as a matter of law because she was not the owner or keeper of the dog. The defendant argues that Connecticut does not recognize a cause of action predicated on premises liability where the person is neither a harborer or keeper of the vicious dog. In the alternative, the defendant argues that, even if there is a recognized cause of action based on premises liability, the premises was fully devised to the tenant, and, therefore, the defendant cannot be held liable. The defendant also moves for summary judgment as to the fourth count of the complaint, arguing that the claim made by Simone Bowen, as parent for the child, Christian Oyola, is derivative and therefore must fail along with the third count.
The plaintiffs, in response, argue that Connecticut recognizes a cause of action based on a theory of premises liability where a plaintiff can prove the lessor had knowledge of the dog's vicious propensities and the attack occurred on the lessor's property. The plaintiffs argue that they have shown a genuine issue of material fact as to: (1) the defendant's ownership of the property; and (2) the defendant's knowledge of the vicious propensities of the dog at the inception of the lease.
With regard to a landlord's duty as owner of the premises, "[t]he general rule is that a landlord has a duty reasonably to maintain property over which he exercises control . . . The degree of care owed to an entrant depends on the entrant's status . . . 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 . . . 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 . . . [L]iability 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.) Stokes v. Lyddy, 75 Conn.App. 252, 260-61, 815 A.2d 263 (2003).
In the present case, it is undisputed that the defendant, Irene Adams, owned the property where the dog bite allegedly occurred. Moreover, it is undisputed that the defendant knew of the viciousness of the dog prior to this incident, having been sued on a previous occasion for a similar attack. It is also undisputed that the defendant did not remove the vicious dog from the premises, or take any active remedial measures after the first dog bite attack. The narrow issue which this court must decide is whether Connecticut allows a common-law claim predicated on premises liability to proceed against a landowner who does not own, harbor, or otherwise keep the vicious animal.
In Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d 263 (2003) a tenant's pitbull escaped from the premises owned by the landlord and attacked Rasha Stokes as she walked along a public sidewalk. Rasha Stokes sued the landlord under general principles of premises liability claiming that the landlord had a duty to protect her and that the court should recognize a common-law duty by extending that duty to non-owners and non-keepers of dogs. The Connecticut Appellate court found, inter alia, that non-owners, non-keepers-and non-harborers of dogs under a recognized "keeper" duty can not be held liable to third parties. Since Stokes, Connecticut Superior Courts have split as to whether a non-occupying landlord can be held liable at common law for a dog bite attack when the landlord did not exercise any control over the dog and the attack occurred on the premises owned by the landlord.
The judges in the Superior Court who hold that a landlord cannot be held liable for a common-law action based on a theory of premise liability strictly interpret the decision in Stokes to mean that; "[i]n an action for common-law negligence, a nonowner, non-keeper landlord does not owe a duty to third parties attacked by his tenant's dog." Wilson v. S. Vincyak LLC, Superior Court, judicial district of Middlesex at Middletown, No. CV 03 0102745 (Sep. 8, 2004, Silbert, J.). These judges reason that unless a landlord is shown to fit within the purview of an "owner" or "keeper," they cannot be held liable.
See Griffin v. Flegert, Superior Court, judicial district of Tolland, Docket No. CV 06 5000462 (August 28, 2007, Vacchelli, J.); See also Lawlor v. Grillo, Superior Court, judicial district of Hartford, Docket No. CV 065002343 (January 31, 2008, Rittenband, J.T.R.) (the court found that the appellate court in Stokes declined to extend common law liability to non-owners and non-keepers).
Some judges in the Superior Court have held landlords liable where the attack occurred on the premises owned by the landlord and the landlord had knowledge of the vicious animal's propensities. These judges appear to find room within the Appellate Court's decision to carve out such an exception.
Medina v. Ferreira, No. CV 05 4010712 (April 8, 2006, Rodriguez, J.) (41 Conn. Law Rptr. 165). See also Knighton v. Heller, Superior Court, judicial district of Litchfield, Docket No. CV 03 009086 (November 26, 2003, Brunetti, J.); Auster v. Norwalk United Methodist Church, Superior Court of Stamford-Norwalk at Stamford, Docket No. CV 01 0184999 (January 27, 2004, Hiller, J.) 94 Conn.App. 617, 894 A.2d 329, rev'd and remanded, 278 Conn. 915, 899 A.2d 620, cert. granted.
The court in Stokes "decline[d] to decide . . . whether to adopt the heightened duty, which is based on when the landlord first learned of the dog's vicious propensities, as enunciated by Strunk v. Zoltanski . . ." (Citation omitted.) Stokes v. Lyddy, supra, 75 Conn.App. n. 21. However, the court did specifically state that "mere knowledge at the inception of the lease is not enough to establish liability." Stokes v. Lyddy, supra, 75 Conn.App. 277. In this case, the plaintiffs allege that the defendant knew of the dog's presence on the property and of the dog's vicious propensities at the inception of the lease. This alone, however, is insufficient to establish liability, pursuant to the rule articulated in Stokes. Without determining whether a heightened duty exists for a landlord if they knew of the vicious propensities of the dog at the inception of the lease, Stokes requires some evidence of control exhibited by the landlord, such that they could be considered an "owner or keeper" in order to extend liability to them.
It is noted that the plaintiff does not identify the periodicity of the lease, and it is unclear whether each renewal of the lease constitutes a new "inception of the lease," or whether it represents a mere continuation of the lessor/lessee relationship.
This conclusion is buttressed by the analysis of the Stokes court which specifically disagreed with the conclusion in Danahy v. Johnson, Superior Court, judicial district of Hartford, Docket No. 579914 (April 12, 1999, Teller, J.) (24 Conn. L. Rptr. 400) that a nonowner of a dog may be liable under the common law regardless of whether he or she is a harborer. Indeed, whether the defendant was a harborer or keeper of the dog is an issue which was central to the resolution of the case in Stokes, and is central to the resolution of the current motion for summary judgment. Following the Court in Stokes, this court declines to hold the defendant liable as she was not a harborer or keeper of the dog.
Second, the Appellate Court declined to adopt a rule requiring the imposition of an additional duty on the landlord to remove or evict tenants harboring dangerous dogs where the landlord had the contractual right to remove the animal by evicting the tenant. In this case, the plaintiff has alleged that the defendant did not take reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons, including the plaintiff, who might be on the premises from being attacked by the dog. The plaintiff does not allege that the defendant had an additional duty because of pertinent provisions in the lease, e.g. a clause mandating a tenant's eviction for owning and keeping a vicious dog on the premise. Rather, the plaintiff alleges that the defendant was negligent for not providing protections within the lease agreement for third parties. It is unclear from the plaintiff's pleading, what pertinent provisions in a lease might protect persons from attack by the dog. What is clear, from the Court in Stokes, is that there is no additional duty placed upon the landlord because he can contractually remove the vicious dog by evicting the tenant, arguably a form of protection within a contract to protect third parties who might be on the premises. This court, therefore, declines to depart from the recognized duty of a landlord and does not impart an additional duty on the defendant to remove or evict the plaintiff even if such a clause is contained within the lease agreement.
Finally, and most importantly, the Appellate Court stated "in light of the case law of other jurisdictions, our limited case law on the matter and as a matter of public policy, we do not find it appropriate to extend the duty to nonowners or nonkeepers." Stokes v. Lyddy, supra, 75 Conn.App. 279. The plaintiff, in the present case, does not provide sufficient proof to establish a genuine issue of material fact as to whether the defendant could be classified as an owner or keeper of the vicious dog. Instead the plaintiff relies on the defendant's alleged knowledge of the dog's vicious propensities, her ownership of the property, and her willingness to lease the premises to the tenant, notwithstanding her knowledge of the dog's behavioral predilections and its continued presence at the property.
In summary, this court is confronted with the very narrow issue. The issue is whether a lessor can be held liable to a third party for a dog bite which occurred on the lessor's property and the lessor knew, or should have known of the dog's vicious propensities, but failed to take appropriate protective measures. This court is bound by the rule articulated in Stokes and declines to extend a duty to nonowners or nonkeepers.
Conclusion
There is no genuine issue of material fact as to the defendant's relationship with the dog in question. The plaintiff was neither a harborer nor a keeper of the dog and therefore, pursuant to the appellate court's holding in Stokes she cannot, as a matter of law, be held liable based on a theory of premise liability alone. Therefore, the motion for summary judgment is granted.