Opinion
No. CV 03 0102745 S
September 8, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiffs, minor Molly Wilson, and her mother, Linda Wilson, filed this two-count complaint alleging that on June 21, 2002, Molly Wilson was bitten and seriously injured by a dog owned by a guest staying at the Sandpiper Motor Inn, which was owned by the defendant, S. Vinayak LLC, when the attack occurred. The first count alleges that the defendant's negligence caused the plaintiffs' damages. The second count alleges that the defendant, as a keeper of the dog, is strictly liable under General Statutes § 22-357.
Section 22-357 provides: "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."
The defendant has moved to strike both counts of the complaint on the grounds that the defendant did not owe a duty to the plaintiffs and the defendant was not the keeper of the dog. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint and we construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Del Core v. Mohican Historic Housing Associates, 81 Conn.App. 120, 121, 837 A.2d 902 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
The defendant argues that the first count of the complaint, brought in common-law negligence, should be stricken because a landlord owes no duty to a third party for a tenant's dog. It also argues that "even where . . . a plaintiff claims that the landowner knew or should have known of the dangerous propensities of the dog," Connecticut courts have not imposed a duty on the landowner, and "the possession of land on which the animal is kept, even when coupled with permission given to a third party to keep it, is not enough to make the possessor of land liable as a harborer of the animal."
In count one, the plaintiffs allege that the defendant (1) "kept or permitted the . . . dog to be kept on the premises;" (2) "knew or should have known that the [dog] had vicious propensities;" (3) "failed to maintain control over or restrain the [dog] or cause the dog to be controlled or restrained;" or (4) "permitted [the dog's owner] to stay at the motor inn with the dog without obtaining information concerning the dog's rabies vaccination status."
The plaintiffs point out that Connecticut appellate courts have not specifically considered the issue of a hotel operator's duty to an invitee when a dog is kept at the hotel by a hotel guest and where the landlord does not control the dog, and there is a split of authority among the judges of the Superior Court. The plaintiffs contend that because the defendant knew or should have known of the dangerous propensities of the dog that bit the minor plaintiff, the plaintiffs have stated a legally sufficient cause of action, and the motion to strike should be denied.
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 257, 815 A.2d 263 (2003). "The essential elements of a cause of action in negligence are . . . duty; breach of that duty; causation; and actual injury . . . [T]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004).
"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Internal quotation marks omitted.) Stokes v. Lyddy, supra, 75 Conn. 268. "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists . . . The final step in the duty inquiry . . . is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Id., 268-69.
In Stokes, the Connecticut Appellate Court declined to extend the common-law duty of an owner or keeper of an animal to a non-owner and non-keeper of an animal. See Stokes v. Lyddy, supra. The Appellate Court rejected the argument that a landlord's duty is based on "mere ownership and control over the property instead of over the dangerous instrumentality, in this case the dog, or the activity." Id., 258-59. The Appellate Court also determined that even though it is foreseeable that if a tenant's dog escaped, it might attack a passerby, Connecticut's public policy weighed against extending the common-law duty to landlords who are not owners or keepers. See id., 269-76.
`Under the common law of [Connecticut], 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." (Citation omitted.) Id., 265-66. The common-law duty requires that "liability be based on control (owners-keepers)." Id., 267. "[A] keeper can be either a harborer or possessor of the dog . . . [T]he term `harborer' means one who treats a dog as living in his home and undertakes to control the dog's actions," and includes "one who provides lodging, shelter or refuge in addition to possession with control. A landlord, however, is not a `keeper' of a dog merely because a tenant owns a dog and keeps the dog on the premises." (Citations omitted; internal quotation marks omitted.) Id. Stokes thus supports the defendant's position, holding that, in 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.
"The Superior Court cases that have held that a landlord may be liable for negligence when a tenant's dog attacks another person have based it on whether the landlord had knowledge of the dog's dangerous propensities . . . In order to recover damages for injuries caused by a dog bite based on [common-law] negligence, a plaintiff must prove that the dog had vicious propensities and that the defendant had knowledge or the means of knowledge of such propensities." (Citation omitted; internal quotation marks omitted.) Knighton v. Heller, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090861 (November 26, 2003, Brunetti, J.). "[I]f the complaint alleges facts sufficient to raise an issue regarding the defendant's knowledge prior to the dog attack, the plaintiff can survive a motion to strike." Schatz v. Frederick, Superior Court, Docket No. CV 03 0474928, judicial district of New Haven, (June 16, 2003, Harper, J.) ( 34 Conn. L. Rptr. 744).
The plaintiffs' complaint alleges that the defendant "knew or should have known that the [dog] had vicious propensities." The plaintiffs, however, have not supported this conclusory statement with any facts. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. If the plaintiffs' complaint "alleges no facts to support its legal conclusion with respect to the defendant's notice of the dog's vicious propensities [the Court should] reach the inescapable conclusion that the complaint is legally insufficient." (Internal quotation marks omitted.) Schatz v. Frederick, supra. In light of the absence of any factual allegations that would give support to the conclusion that the defendant knew or should have known of the dog's dangerous propensities, the first count has failed to state a claim upon which relief may be granted.
The defendant argues that the plaintiffs' second count, alleging strict liability under General Statutes § 22-357, is also legally insufficient because the factually unsupported conclusory allegation that the defendant was a keeper of the dog within the meaning of the statute, is insufficient to support a cause of action under § 22-357. The plaintiffs respond that controlling the premises where the dog was kept has been considered to be evidence of control in determining whether an individual kept or harbored a dog, at least in other contexts, and the fact that the dog was afforded lodging along with its owner at a motel controlled by the defendant brings the claim within the ambit of the statute. The plaintiffs particularly note the defendant's control over the parking lot where the incident occurred.
"Consistent in the common-law duty and in § 22-357 is the requirement that liability be based on control (owners-keepers)." Stokes v. Lyddy, supra, 75 Conn.App. 267. "At common law, only an owner or keeper of a domestic animal owed a duty of reasonable care to others." Id., 265. Likewise, "§ 22-357 was enacted to create strict liability in the owner or keeper to third parties for injuries caused by a dog." (Emphasis added; internal quotation marks omitted.) Id., 266.
"Pursuant to General Statutes § 22-357, [a] `keeper' is defined as any person, other than the owner, harboring or having in his possession any dog . . . To harbor a dog is to afford lodging, shelter or refuge to it . . . [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog] . . . One who treats a dog as living at his house and undertakes to control his actions is [a] . . . keeper . . . In order to harbor or possess a dog, some degree of control must be exercised." (Citations omitted; emphasis added; internal quotation marks omitted.) Murphy v. Buonato, 42 Conn.App. 239, 243-44, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997).
"[T]he term `harborer' means one who treats a dog as living in his home and undertakes to control the dog's actions . . . [It] includes one who provides lodging, shelter or refuge in addition to possession with control. A landlord, however, is not a `keeper' of a dog merely because a tenant owns a dog and keeps the dog on the premises." (Citations omitted; emphasis added; internal quotation marks omitted.) Stokes v. Lyddy, supra, 75 Conn.App. 267.
In the present case, the plaintiffs have provided no factual allegations . . . such as that the defendant provided lodging, shelter or refuge to the dog and also possessed or controlled the dog . . . that would support the legal conclusion that the defendant was a non-owner keeper. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. The bare allegation that the defendant was a keeper without any supporting factual allegations is a mere conclusion of law that will not withstand a motion to strike.
In summary, the defendant's motion to strike count one is granted because the plaintiffs have failed to allege sufficient facts to establish that the defendant was an owner or keeper of the dog and that the defendant was on notice about the dog's vicious propensities. They have thus failed to state a claim for which relief may be granted as to that count. Additionally, under General Statutes § 22-357, only an owner or keeper of a dog may be found liable for damages caused by the dog. Because the plaintiffs have failed to make sufficient factual allegations that would establish that the defendant was the owner or keeper of the dog, the defendant's motion to strike count two is also granted.
Jonathan E. Silbert, Judge