Full Case Name:  Charlene DUTKA v. Jeremy CASSADY et al

Share |
Country of Origin:  United States Court Name:  Superior Court of Connecticut Primary Citation:  2012 WL 3641635 (Not Reported in A.3d) Date of Decision:  Tuesday, July 24, 2012 Judge Name:  Roche Jurisdiction Level:  Connecticut Alternate Citation:  2012 Conn. Super. LEXIS 1901 Judges:  Roche Docket Num:  LLICV106002626S
Summary: A rescue organization had adopted out a dog. The new owners were walking the dog unleashed when it attacked another dog. The plaintiff's filed a complaint of common law negligence and recklessness, which alleged that the rescue organization should have known and should have warned them of the dangerous tendencies of the specific dog but failed to do so. Connecticut law imposed strict liability on an owner or keeper of such an animal, and the statute had not been expanded to include the seller or transferor. The issue then was whether the court should expand the scope of such a negligence claim and create a duty of care owed by transferors or sellers of dogs with known and/or unknown propensities for aggression. The court found that there was no support for expanding liability in common law negligence when the organization in this case did not own, possess, harbor or control the dog. The court declines to impose a duty on the rescue agency to inform adoptive families.

*1 This is a motion to strike brought by the defendant “For The Love Of Dogs–Rottweiler Rescue” (Hereinafter the “Defendant Agency”) against Counts Six and Seven of the plaintiff's revised complaint involving a dog bite claim.

The facts appear not to be in dispute in that on or about May 17, 2008, a certain pit-bull dog named Matthew was in the control, possession and ownership of the defendants Jeremy and Lauren Cassady in Goshen, Connecticut. On the said date, the subject dog, which was unleashed and roaming the general neighborhood where the plaintiff was walking with her dog and a young son of five years old, attacked the plaintiff's dog and caused considerable anxiety and fear to the plaintiff's family members. The attack upon the plaintiff's dog was substantial and serious as well as the emotional distress that was allegedly caused to the plaintiff and her child.

“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.”(Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).“[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus [i]f facts provable in the complaint would support a cause of action the motion to strike must be denied ... Moreover ... [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”(Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

Specifically, Counts 6 and 7 allege that the Defendant Agency should have known and should have warned of the dangerous and aggressive tendencies of the specific dog Matthew that was placed with the defendants Cassady. Further knowledge of such prior disposition to violence and aggressive behavior towards other dogs and/or people by the Defendant Agency would give rise to a duty to warn any transferee such as Cassadys of such tendencies.

The Defendant Agency argued that the scope of liability is limited to the so-called dog bite statute C.G.S. § 22–357 which imposes a strict liability upon an “owner” or a “keeper” of such an animal.1The interpretation of the statute has not been expanded to include the seller or transferor of such a dog to a third party in that such seller or transferor of a dog could be held liable for the damages caused by such a dog to third parties.

*2 In Schonwald v. Tapp, 142 Conn. 719, 722, 118 A.2d 302 (1955), our Supreme Court stated that “[t]he statute creates a cause of action that did not exist at common law.”Thus, “when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed, or enlarged in its scope by the mechanics of construction ... The court is to go no faster and no further than the legislature has gone.”(Internal quotation marks omitted.) Murphy v. Buonato, 42 Conn.App. 239, 249 (1996).

The plaintiff has alleged common-law negligence in Count 6 and recklessness in Count 7 based on the Defendant Agency's alleged knowledge of the vicious propensities of the dog in question and the failure to warn the defendant Cassadys of those dangerous and aggressive propensities of the subject dog.

The issue centers on whether or not this court should expand the scope of such a negligence claim and thereby create a duty owed by transferors or sellers of dogs with known and/or unknown propensities for aggression. The plaintiff relies on a particular case Reed v. Comen, 1994 Conn.Sup. 11101–R (Docket No: CV 94 311292–S) (11/9/94) (Thim, J.). In that particular matter, the Motion to Strike was denied, and by implication an action may lie against a defendant dog seller in which such a dog has caused attacks and ensuing injuries to a party or its property. The question becomes whether there is a duty of care to warn and advise the potential buyer or transferee about the aggressive propensities of such dog.

The Court at this stage can find that there is no particular duty of care arising from any specific knowledge by the defendant that this dog had aggressive tendencies and would be more likely than not to attack third parties when unleashed and unattended by the actual owners, keepers, or harborers of the subject dog. The Court finds at this stage that the complaint does not support an expansion of common-law negligence in this particular area nor by implication the expansion of the dog bite statute which is not being relied on specifically in these said two counts. Since there does not appear to be any controlling or compelling Connecticut cases to rely upon, the Court looks elsewhere. In the Missouri case of Miles v. Rich v. Humane Society of Missouri, 347 S.W.3d 477; 2011 Mo.App. Lexis 557 (2011), that Court's rationale can be adopted to this case: “The fact that a humane society may be liable in tort in other factual situations does not support an argument that it can be liable in common law negligence for harm caused by a dog it did not own, possess, harbor, or control under the facts alleged in this case.”

Therefore, the defendant's motion to strike Counts Six and Seven of the revised complaint is hereby granted.


1 The legislature purpose of our dog bite statute was summarized by this court in Maccarone v. Hawley, 7 Conn.App. 19, 507 A.2d 506 (1986), in which we stated that § 22–357 was enacted to create “strict liability in the owner or keeper to third parties for injuries caused by a dog. Its purpose is to ‘abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper [does not depend] upon his knowledge of the dog's ferocity or mischievous propensity.”(Emphasis added; emphasis in original; internal quotation marks omitted.)


Share |