Superior Court of Connecticut
Auster v. Norwalk United Methodist Church (Unpublished)
2004 WL 423189 (Conn.Super.,2004) (only Westlaw citation available)
In this unpublished Connecticut opinion, the defendant-church owned property and leased a portion of the premises to one of its employees, Pedro Salinas. The plaintiff was attacked by a dog, owned by Salinas, while lawfully on the defendant's premises. The plaintiff appealed a summary judgment ruling in favor of defendant. On appeal, the court found that a genuine issue of material fact existed as to whether defendant-church was a "harborer" of the dog under Connecticut law. Because Salinas and the church had no formal lease agreement, dispute existed as to the exact parameters of Salinas' exclusive control of the premises where his dog roamed. There also existed a material fact regarding the church's knowledge of the dog's vicious propensities because it had twice previously attacked a person. (Note the jury trial decision in favor of plaintiff was later overturned in Auster v. Norwalk United Methodist Church, --- A.2d ----, 94 Conn.App. 617, 2006 WL 797892 (Conn.App.)).
delivered the opinion of the court.
Opinion of the Court:
The plaintiff, Virginia Auster (plaintiff), filed a revised four-count complaint against the defendant, Norwalk United Methodist Church (defendant or Church), for personal injuries sustained when she was attacked by a dog on the defendant's property. The following facts are not in dispute: the defendant owned property located at 718 West Avenue in Norwalk (premises). The defendant leased a portion of the premises to one of its employees, Pedro Salinas (Salinas). According to the revised complaint, the plaintiff was attacked by a dog while lawfully on the defendant's premises. The dog was owned and kept by Salinas. The plaintiff asserts the following claims: violation of § 22-357, Connecticut's Dog Bite Statute (count one), common-law negligence (count two), nuisance (count three) and violations of § 22-363 (count four).
On June 12, 2003, the defendant filed a revised motion for summary judgment, with a memorandum of law and attached exhibits, contending that the defendant was not an "owner or keeper" of the dog, the defendant had no knowledge of the dog's vicious propensities, and that the defendant did not create any dangerous condition constituting a nuisance. On October 6, 2003, the plaintiff filed an objection with attached exhibits.
"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 ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Gould v. Mellick & Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003). Furthermore, "the issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted, internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003).
The defendant first argues that the plaintiff was trespassing on the defendant's property at the time the dog attacked her and, thus, cannot seek recovery under § 22-357. [FN1] That statute specifically precludes trespassers from seeking recovery. General Statutes § 22-357. However, the affidavits and deposition excerpts supplied by both parties clearly show that issues of material fact exist. According to the deposition testimony of James Stinson (defendant's "Exhibit E"), who is a pastor and chief administrative officer of the Church, the plaintiff had permission to be "in the church building" on the night she was attacked. In addition, Stinson's sworn affidavit (defendant's "Exhibit A") indicates that the plaintiff approached Salinas' apartment because she needed the key to open the front entrance. Finally, according to the deposition of Bruce Root (plaintiff's "Exhibit 9") visitors to Salinas' apartment are not considered trespassers.
FN1. § 22-357 states "Damage to person or property. 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 next argues that it was neither an owner or keeper of the dog. Under § 22-357 "[i]f any dog does any damage to either the body or property of any person, the owner or keeper ... shall be liable for such damage ..." "Keeper" is "any person, other than the owner, harboring or having in his possession any dog." Connecticut General Statutes 22-327. "[T]he term 'harborer' means one who treats a dog as living in his home and undertakes to control the dog's actions ... [and] that the term 'harborer' includes one who provides lodging, shelter or refuge in addition to possession with control." (Citations omitted, internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 266-67, 815 A.2d 263 (2003). "[T]he term 'harborer' includes one who provides lodging, shelter or refuge in addition to possession with control." Id., citing Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). Our Appellate Court cited with approval a case where the defendant landlord was found to be a harborer of a dog because the dog was kept in an area of the yard under the direct control of the landlord; and a case where the defendant employer was keeper of his employee's dog. See Buturla v. St. Onge, 9 Conn.App. 495, 498, 519 A.2d 1235 (1987).
In this case, material issues of fact exist as to whether the defendant harbored the dog. Whether the dog was permitted to roam the common areas under the defendant's control is disputed. The affidavit of James Stinson indicates that the dog was not kept on church property or common areas. (Defendant's "Exhibit A.") However, since Salinas and the defendant did not enter into any lease agreement (plaintiff's "Exhibit 8"), the exact parameters of the leased property under Salinas' exclusive control versus what constituted a common area are material issues in dispute. Thus, "[u]nless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue." (Internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002). Furthermore, according to the affidavit of Michele Langlois (plaintiff's "Exhibit 22"), a former employee of the defendant, on at least on one occasion she found the dog unchained near a fire escape on the defendant's property and noted that the dog was "often chained in the area at the base of the steps at the rear part of the Church ..." This court concludes that material issues of fact exist with respect whether the defendant is a "keeper" under § 22-35 and cannot conclude, as a matter of law, that the defendant owed no statutory duty to the plaintiff.
The defendant next argues that it did not have a common-law duty to protect the plaintiff from Salinas' dog. 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. See Basney v. Klema, 2 Conn.Cir .Ct. 538, 544, 203 A.2d 95 (1964). Indeed, "liability 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." Stokes v. Lyddy, supra, 75 Conn.App. at 261. In support of its argument, the defendant submits that it "did not consider the dog a vicious animal." (Stinson Aff. "Exhibit A.") The plaintiff, however, submitted proof of at least two prior attacks by Salinas' dog occurring on the defendant's premises. According to the affidavit of Michele Langlois (plaintiff's "Exhibit 22"), Salinas' dog attacked her in May of 1998 and that she notified the "Pastor" and "every member of the Board of Directors" by letter. In addition, on August 22, 1998, Steve Richardson, a cable installer was also attacked by Salinas' dog. (Plaintiff's "Exhibit 18.") Thus, issues of material fact exist concerning the defendant's knowledge of the dog's vicious propensities.
Turning to the nuisance claim in count three, [FN2] the defendant argues that any nuisance created by the dog's behavior did not interfere with a right common to the general public. A common-law claim of nuisance consists of four necessary elements: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 420, 715 A.2d 27 (1998). In addition to these four elements, in order to state a claim for private nuisance, the plaintiff must show that her injuries are related to some ownership in land. See Webel v. Yale University, 125 Conn. 515, 525 (1939). In this case, the plaintiff has failed to allege a cause of action for private nuisance because the plaintiff has not alleged any ownership interest of land.
FN2. The plaintiff's revised complaint fails to distinguish which type of nuisance her claim is based. "There are two types of nuisance: public and private." Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432 (1986). Prosser notes, "[t]he two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names." Prosser & Keeton on the Law of Torts 618 (5th ed.1984). The court also notes that the plaintiff's memorandum in opposition inadequately briefed the issues concerning her nuisance claim.
In order to maintain an action for public nuisance, the plaintiff must prove the four core elements noted above and the additional element that the nuisance interferes with a right common to the general public. Elliot v. Waterbury, supra, 245 Conn. at 421. Nuisances become public when "they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public" (internal quotation marks omitted). Couture v. Board of Education, 6 Conn.App. 309, 314-15, 505 A.2d 432 (1986). "One who enters the premises at the express and implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of right extended by the tenant; and if injured, the visitor to the premises cannot base his right to recover on the existence of a public nuisance." See Webel v. Yale University, supra, 125 Conn. at 524-25.
Here, despite viewing the evidence in a light most favorable to the plaintiff, the court concludes that the plaintiff failed to show that any issues of material fact exist related to count three and has not supported its conclusory argument that all of the elements of nuisance have been satisfied. The plaintiff alleges that she was injured on private property, thus the alleged public nuisance could not affect rights common to the general public. In addition, the plaintiff alleged that she was on the premises as an invitee. (See Revised Complaint, Count Three, ¶ 3.) Therefore, the plaintiff has not, as a matter of law, stated a claim for public nuisance.
Finally, the defendant argues that count four, which alleges a violation of General Statutes § 22-363, does not provide the plaintiff 'with a civil remedy. [FN3] General Statutes § 22-363 provides that "[n]o person shall own or harbor a dog or dogs which is or are a nuisance by reason of ... excessive barking ... Violation of any provision of this section shall be an infraction for the first offense and such person shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both for each subsequent offense ..." According to § 22-328 the Commission of Agriculture is charged with enforcing the provisions of § 22-363. General Statutes § 22- 328. The court concludes that § 22-363 does not provide the plaintiff with a private civil remedy.
FN3. The court notes that the defendant failed to brief any issue related to count four.
For the foregoing reasons, defendant's motion for summary judgment is denied with respect to counts one and two, and granted with respect to counts thee and four.