Opinion
CV176037188
04-04-2018
Ronald PROCKO v. Debra SHIRLEY
UNPUBLISHED OPINION
OPINION
Swienton, J.
The plaintiff seeks a prejudgment remedy (PJR) in the amount of $250,000 against the property of the defendant, Debra Shirley. The plaintiff is claiming that the defendant is liable for the dog bite injuries he sustained on April 22, 2015, when he and his dogs were attacked by a dog in front of the home of the defendant at 122 Landers Avenue, New Britain, Connecticut. He is claiming that the defendant is liable for said injuries on the basis of strict liability and common-law negligence.
The plaintiff provided no authority or analysis as to whether probable cause existed under a claim for common-law negligence. Therefore, the court will not address that cause of action.
The plaintiff testified that he was walking his two Jack Russell terriers in the neighborhood of his residence in New Britain, when a large Rottweiler mixed breed ran from the defendant’s property and attacked both his dogs. In attempting to protect his dogs, the Rottweiler bit the plaintiff and knocked him to the ground. As a result, he sustained injuries to his back, which he states required surgery among other medical treatment as a direct and proximate result of the attack.
The defendant testified that she is the owner of the property located at 122 Landers Avenue, New Britain. She also confirmed that the attack occurred and the Rottweiler had escaped her house when she was preparing to leave.
During the hearing, the defendant’s father, Quentin Hinton, testified that the Rottweiler belonged to him, but that the dog stayed at his daughter’s house during his visits. He produced evidence to indicate that the dog was registered to him in 2013, and subsequent to 2013, he moved to Athens, Georgia where he is a permanent resident. On the date of the incident, he testified that he was visiting his daughter in Connecticut, but was not staying with her. He left the dog at her residence that day while he was conducting other business in Connecticut.
The plaintiff did testify that he saw the dog in and around the defendant’s premises in the past on many occasions.
" The role of the court in considering an award of a prejudgment remedy is well established. Pursuant to our prejudgment remedy statutes ... the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits ... The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities ..." Smith v. Andrews, Superior Court, complex litigation docket. at Stamford, Docket No. X08 CV 03 0198246 (September 7, 2005).
" The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Citation omitted; emphasis in original; internal quotation marks omitted.) J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 349-50, 835 A.2d 79 (2003).
" A person injured by a dog can elect one of two causes of action. One action would be in negligence at common law, the other is under the dog bite statute ... [General Statutes] § 22-357." (Internal quotation marks omitted.) Delise v. Fusco, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195216 (August 17, 2004). " 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. Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence ... 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 that failure to do so is negligence that makes the owner liable for its consequences." (Citations omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 265-66, 815 A.2d 263 (2003).
General Statutes § 22-357 imposes lability on the owner or keeper of a dog. The question is whether probable cause exists to believe that the defendant bears strict lability under § 22-357 as a " keeper" of the Rottweiler. General Statutes § 22-357(b) defines " keeper" as " any person other than the owner, harboring or having in his possession any dog." Recent case law holds that this definition includes a temporal requirement before legal responsibility attaches under § 22-357.
In Austen v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), the Supreme Court stated that a " nonowner of a dog cannot be held strictly liable for damage done by the dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done." Id., 161-62. Furthermore, evidence must be adduced " that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred." Id., 162.
" We therefore are not free to construe the term ‘keeper’ so broadly as to include persons authorized to exercise only limited dominance and control over a dog." Id., 163. When evaluating whether a party is a " keeper," the court ought " not focus on the relationship" between the owner and putative keeper but rather must " look to the nature and extent of the control ... over the [owner’s] dog." Id. " [O]wnership of the premises where the dog lives, ‘unaccompanied by an evidence of caretaking of the dog or actual control over its actions’ ... is not enough to hold a ... property owner strictly liable for damage caused by the dog." Id. " This is true whether the dog’s owner is a live-in employee, a tenant or merely a friend of the [property owner]." Id., 163-64.
There was no credible evidence to indicate that the defendant exercised dominance and control over the dog to such a degree as to find liability under § 22-357. Therefore, the court finds no probable cause exists for a cause of action pursuant to § 22-357. Even if the court were to find the likelihood of a verdict utilizing the probable cause standard required in a prejudgment remedy application hearing, the court is also required to determine " whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance." General Statutes § 52-278d(a)(4). Claims such as this one are generally covered by homeowners’ insurance. There was no evidence to indicate coverage either way. In the absence of evidence that there is insufficient or unavailable homeowners’ insurance to cover this claim, the court denies the application for a prejudgment remedy.
The application for prejudgment remedy is denied.