Opinion
NNHCV146050634S
10-05-2016
Barbara Zekala v. Scott Beckwith
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge
The plaintiff has filed this action for damages against the defendant asserting that she was injured when she fell on the defendant's property after returning the defendant's dog who had strayed onto the plaintiff's property. The defendant has moved for summary judgment claiming that his dog was not a proximate cause of the plaintiff's injuries.
The plaintiff's complaint consists of two counts. In the first count, she alleges that the defendant is liable for her injuries pursuant to General Statutes § 22-357, the inaptly named " dog bite statue, " which imposes liability on an owner or keeper of a dog for any damage to the body or property of a person caused by the dog. In the second count, the plaintiff asserts a claim of negligence, alleging that the defendant failed to properly supervise and confine his dog. The defendant's motion for summary judgment is addressed to both counts of the plaintiff's complaint.
The defendant in his motion for summary judgment contends that his dog was not a proximate cause of the plaintiff's injuries because the dog had been returned to the deck at his house and was not near the plaintiff when she fell. The plaintiff argues that the defendant's dog was a proximate cause for her injuries because she fell as she was checking to determine whether the defendant's dog was in fact confined to the defendant's deck.
The law governing the defendant's motion for summary judgment is well established. " Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158, 698 A.2d 938 (1997).
" It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. If the affidavits and the other supporting documents 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 and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994).
Both parties submitted the deposition of the plaintiff as support for their respective positions. In her deposition, the plaintiff relates the following events. The defendant owned an English bulldog, named " Churchill." On March 28, 2014, the plaintiff was outside her home when she noticed Churchill loose on her property next to her car. The defendant lived near her so the plaintiff decided to return Churchill to the defendant's house. The plaintiff called to Churchill who proceeded to follow the plaintiff to the defendant's house. The plaintiff walked up the driveway with Churchill following and rang the doorbell but no one answered. As she walked down the front steps, the plaintiff saw a boy on a bicycle, Declan, who was a friend of the defendant's son. Declan offered to put Churchill on a deck which was in the back of the defendant's house. Declan opened the gate to the deck, Churchill climbed onto the deck and Declan closed the gate. The plaintiff and Declan turned to leave when Churchill approached them, having left the deck. Declan apparently noticed that there was a second gate which had not been latched, so he returned Churchill to the deck. The plaintiff was standing on an incline and took a step up. She turned around to leave once she knew Churchill was back on the deck. As she turned, she fell to the ground injuring herself. The plaintiff was on wet, muddy grass at the time of her fall. Churchill was within the closed area of the deck approximately three feet away looking down on the plaintiff when she fell.
Proximate cause is an element of proof of both the negligence and statutory causes of action asserted by the plaintiff. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995). Legal cause consists of actual cause and proximate cause. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605-07, 662 A.2d 753 (1995). " [I]f the plaintiff's injury would not have occurred 'but for' the defendant's conduct, then the defendant's conduct is a cause in fact of the plaintiff's injury." Id., 605. Proximate cause requires that the defendant's conduct be a substantial factor in producing the plaintiff's injury. The test is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence. Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973). " Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct." (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn.App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). " Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes." Doe v. Manheimer, supra, 212 Conn. 758.
" The question of proximate cause generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995).
As the defendant points out, the court's decision in Demers v. Rosa, 102 Conn.App. 497, 505, 925 A.2d 1165, cert. denied, 284 Conn. 907, 931 A.2d 262 (2007), is instructive in determining whether the uncontested facts here establish a lack of proximate cause. In Demers, the plaintiff, a police officer, responded with Cronin, a fellow police officer, to a call of a roaming dog during a winter storm. Cronin took control of the dog from Bannon, a concerned citizen, and placed it in the backseat of his patrol car. The plaintiff was standing next to the patrol car when he lost his footing and slipped on ice and snow. The plaintiff sued the owner of the dog for negligently permitting the dog to roam on the day in question. The action was tried to the court which found the defendant negligent and awarded damages. The Appellate Court reversed finding a lack of proximate cause. It is useful to quote at length from the court's opinion.
" Turning to the facts of this case, we are persuaded that the harm that befell the plaintiff was not reasonably foreseeable as a matter of law. When examining the scope of risk created by the defendant's negligence, one could easily foresee the possibility that a police officer could slip while in the midst of catching a roaming dog and returning it to its owner. Such a foreseeable mishap could occur, for instance, as a result of chasing after the dog, restraining the dog or trying to contain it in a particular area. Equally imaginable are so-called 'dog fright' cases, in which the dog startles the police officer and thereby causes him or her to slip and fall. All of these situations could be considered properly within the scope of the risk because the harm suffered is of the same general type as that which makes the defendant's conduct negligent in the first instance. Here, however, we agree with the defendant that the plaintiff fell because of the ice and snow on the driveway and not by virtue of the dog's roaming free or even the dog's presence at the scene of the accident. The plaintiff did not allege, and the evidence does not suggest, that the dog's behavior in the backseat of Cronin's car contributed to his fall in some fashion. By prompting the plaintiff to come to the Bannon residence, the dog's roaming became an indirect cause of the plaintiff's fall, at best." (Citations omitted.) Id., 504-06.
In light of the deposition testimony of the plaintiff, the harm that befell her was not reasonably foreseeable as a matter of law. The plaintiff's fall was not due to Churchill being loose or the dog's presence at the scene of the accident. She fell when she turned because she was standing on an incline on wet and muddy grass. By her own admission, the defendant's dog was back up on the deck, three feet away, behind a closed gate at the time of her fall. The plaintiff further admits that she turned around to leave once she knew Churchill was on the deck and she then fell, injuring herself. She also admits that the dog did not do anything to startle her. As in Demers, while the dog's roaming was the impetus for the plaintiff's trip to the defendant's residence, it is only a " remote or trivial" cause of her fall and subsequent injury. Id., 505.
The plaintiff argues that Demers is distinguishable because she fell when she positioned herself below the defendant's deck to see whether the dog would remain on the deck where he had just escaped. The plaintiff's deposition testimony does not support her claim. In her deposition, she states: " I was at the bottom and I wanted to make sure Churchill was up there. There is an incline and I took a little step up. I turned around once I knew Churchill was there." She further states in her deposition that Churchill was on the deck when she then turned " because I was about to go back and that's when I fell." The plaintiff's testimony shows that she saw that Churchill was on the deck and she was turning to leave when she fell. The plaintiff submitted no evidence that she was waiting or attempting to see if Churchill would remain on the deck at the moment of her fall.
The evidence and proof submitted by the parties show that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law. Accordingly, the defendant's motion for summary judgment is hereby granted.