Auster v. Norwalk United Methodist Church

• Decision Date: 25 March 2008
• Docket Number: No. 17672.,17672.
• Court: Connecticut Supreme Court
• Parties: Virginia AUSTER v. NORWALK UNITED METHODIST CHURCH et al.

943 A.2d 391

286 Conn. 152

Virginia AUSTER v. NORWALK UNITED METHODIST CHURCH et al.

No. 17672.

Supreme Court of Connecticut.

Argued October 26, 2007.

Decided March 25, 2008.

Robert F. Maslan, Jr., Darien, with whom, on the brief, was Amy J. Boland, for the appellant (plaintiff).

Robert C.E. Laney, with whom were Sarah F. DePanfilis and, on the brief, Charles A. Deluca, Stamford, for the appellee (named defendant).

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and SCHALLER, Js.

PALMER, J.

The plaintiff, Virginia Auster, suffered injuries when she was bitten by a dog owned by an employee of the named defendant, Norwalk United Methodist Church.¹ The plaintiff commenced this action against the defendant seeking damages under the dog bite statute, General Statutes § 22-357,² pursuant to which an owner or "keeper" of a dog is strictly liable for any damage caused by the dog to the person or property of another. Specifically, the plaintiff sought to recover damages from the defendant as a "keeper" of the dog under § 22-357. Following a jury trial, the jury returned a verdict for the plaintiff, and the trial court rendered judgment in accordance therewith. The defendant appealed to the Appellate Court, which reversed the judgment of the trial court, concluding, inter alia, that the evidence was insufficient to support a finding that the defendant qualified as a "keeper" of the dog for purposes of § 22-357. Auster v. Norwalk United Methodist Church, 94 Conn.App. 617, 621, 624, 894 A.2d 329 (2006). We granted the plaintiff's petition for certification to appeal; Auster v. Norwalk United Methodist Church, 278 Conn. 915, 899 A.2d 620 (2006); and now affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "The defendant is located on West Avenue in Norwalk and consists of a church building, a parish house and an education building. Pedro Salinas was an employee of the defendant and lived in an apartment in the parish house with his family.³ Salinas was the owner of the [mixed breed pit bull] dog that attacked the plaintiff. [After an incident several years earlier in which the dog bit one of the defendant's employees, the defendant instructed Salinas that the dog must be kept inside Salinas' apartment between the hours of 6 a.m. and 7 p.m. and, at all other times, chained to the railing of a stairwell leading up to the apartment. At no time was the dog permitted to roam freely on the defendant's property.] On July 27, 2000, the plaintiff arrived at the premises to attend a meeting scheduled for 7:30 p.m. in the parish house. The plaintiff was early for the meeting, and when she arrived, the front door of the parish house was locked. The plaintiff walked around to the side of the parish house to find someone to unlock the door. She went to the side stairway that led up to Salinas' living quarters. There was a landing on the top of the stairway that led to an indoor porch that connected to Salinas' kitchen. When the plaintiff reached the top of the stairway, she raised her voice to see if anyone was home at Salinas' residence. At that time, the dog appeared at the porch doorway. The bottom panel of the porch door was either broken or missing. While the plaintiff was at the doorway, the dog ran through the opening and bit the plaintiff on her leg."⁴ Auster v. Norwalk United Methodist Church, supra, 94 Conn.App. at 619, 894 A.2d 329. The defendant subsequently directed Salinas to remove the dog from the premises.

The plaintiff brought this action to recover damages from the defendant as "keeper" of the dog under § 22-357. The plaintiff's complaint also contained a claim of common-law negligence. The trial court instructed the jury that if it returned a verdict for the plaintiff on her claim under § 22-357, it did not need to return a verdict on the negligence claim. The jury returned a verdict in favor of the plaintiff on her statutory strict liability claim and awarded her damages totaling $142,832.37. Accordingly, the jury did not render a verdict on the plaintiff's negligence claim.

The defendant filed a motion to set aside the verdict, claiming, first, that the evidence was insufficient to support a finding that it was a "keeper" of Salinas' dog within the meaning of General Statutes §§ 22-327(6) and 22-357 and, second, that the trial court improperly had permitted the plaintiff to present evidence of the defendant's liability insurance coverage for the purpose of establishing the defendant's control of the premises.⁵ The trial court denied the defendant's motion and rendered judgment in accordance with the jury verdict. On appeal to the Appellate Court, the defendant raised the same claims that it had raised in its motion to set aside the verdict. See id., at 618-19, 894 A.2d 329. The Appellate Court agreed with both of the defendant's claims and reversed the judgment of the trial court.⁶ Id., at 621, 623, 894 A.2d 329.

In concluding that the trial court improperly had determined that the evidence was sufficient to support a finding that the defendant qualified as a "keeper" of Salinas' dog, the Appellate Court first observed that, under § 22-327(6),⁷ the term "keeper" is defined as "any person, other than the owner, harboring or having in his possession any dog." Id., at 620-21, 894 A.2d 329. The court then explained that "[t]o harbor a dog is to afford lodging, shelter or refuge to it"; (internal quotation marks omitted) id., at 621, 894 A.2d 329; that possession of a dog requires the exercise of dominion and control over the dog; id.; and that, "[i]n order to harbor or possess a dog, some degree of control over the dog must be exercised." (Internal quotation marks omitted.) Id.

Applying these definitional principles, the Appellate Court rejected the plaintiff's contention that, because the defendant owned the premises where the dog lived and placed some restrictions on the dog's movements, the jury reasonably could have concluded that the defendant was the keeper of the dog for purposes of strict liability under § 22-357. Id. Although there was no written lease agreement between Salinas and the defendant, the Appellate Court likened the relationship between them to that of landlord and tenant, and observed that, according to its decision in Stokes v. Lyddy, 75 Conn.App. 252, 267, 815 A.2d 263 (2003), "a landlord ... is not a keeper of a dog merely because a tenant owns a dog and keeps the dog on the premises. To determine who is a keeper of a dog, the analysis relies on the degree of control exerted over the dog." (Internal quotation marks omitted.) Auster v Norwalk United Methodist Church, supra, 94 Conn.App. at 621 n. 6, 894 A.2d 329. The Appellate Court concluded that the defendant was not a keeper of the dog because it did not exercise sufficient control over the dog. Id., at 621-22, 894 A.2d 329. The court reasoned: "Salinas was solely responsible for the care of his dog. The defendant did not feed, [provide] water [to] or house the dog. The dog resided only in Salinas' living quarters, either in the apartment, on the porch or chained to the steps leading to the apartment, and did not roam freely around the defendant's property." Id., at 621, 894 A.2d 329. The court further explained that, in contrast to the plaintiff in Murphy v. Buonato, 42 Conn.App. 239, 244, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997), who had "qualified as a `keeper'" because he "had assumed sole responsibility to feed, water, walk and provide shelter for a dog in his home on a temporary basis"; Auster v. Norwalk United Methodist Church, supra, at 622, 894 A.2d 329; the defendant in the present case "did nothing remotely close to those activities...." Id. The Appellate Court concluded that "[t]he defendant did not exercise dominion and control over the dog in any manner other than by placing a limit on when and where Salinas could let his dog outside. This minimal regulation [was] insufficient to establish that the defendant" was a keeper of the dog for purposes of § 22-357. Id.

The Appellate Court also agreed with the defendant that the trial court had abused its discretion in permitting the plaintiff to present evidence of the defendant's liability insurance coverage. Id., at 623-24, 894 A.2d 329. The court explained that, under § 4-10 of the Connecticut Code of Evidence,⁸ evidence that a person was or was not insured against liability generally is inadmissible to prove whether the person acted negligently or otherwise wrongfully but that such evidence is admissible when it is offered for another purpose, such as proof of ownership or control. Id., at 623, 894 A.2d 329. The Appellate Court rejected the plaintiff's contention that evidence of the defendant's liability insurance coverage was admissible on the issue of ownership or control, first, because it was undisputed that the defendant was the owner of the premises, and, second, evidence that the defendant owned the property had little or no bearing on the issue of whether the defendant had control over Salinas' dog under § 22-357. The court concluded, therefore, that the evidence was both irrelevant and prejudicial.⁹ Id., at 624, 894 A.2d 329.

We granted the plaintiff's petition for certification to appeal limited to the following issues: First, "[d]id the Appellate Court properly conclude that there was sufficient evidence to support the jury's conclusion that the defendant was a keeper of the dog?" Auster v. Norwalk United Methodist Church, supra, 278 Conn. at 915, 899 A.2d 620. Second, "[d]id the Appellate Court correctly conclude that the trial court's admission of evidence of insurance was prejudicial?" Id. We answer both of the certified questions in the affirmative.

I

Before addressing the merits of the two issues raised by this appeal, we set forth the principles applicable to our analysis of the plaintiff's claims. "The standard of review...