Buturla v. St. Onge, 4486

• Decision Date: 03 March 1987
• Docket Number: No. 4486,4486
• Citation: 9 Conn.App. 495,519 A.2d 1235
• Court: Connecticut Court of Appeals
• Parties: Pamela BUTURLA v. Ronald ST. ONGE et al.

Page 1235

519 A.2d 1235

9 Conn.App. 495

Pamela BUTURLA v. Ronald ST. ONGE et al.

No. 4486.

Appellate Court of Connecticut.

Argued Nov. 13, 1986.

Decided Jan. 20, 1987.

Certification Denied March 3, 1987.

Morris R. Borea, with whom, on brief, was Kimball Haines Hunt, Hartford, for appellant (plaintiff).

Richard Reeves Hine, Branford, for appellees (defendant John Zura et al.).

Before HULL, BORDEN and DALY, JJ.

HULL, Judge.

The plaintiff brought suit against the named defendant, Ronald St. Onge, for injuries she received when attacked by St. Onge's dog. She also named as defendants Marion and John Zura, owners of the apartment building in which St. Onge resided, claiming that as owners of the building they were also liable for her injuries. The court granted a motion for summary judgment in favor of the Zuras. The plaintiff appealed, claiming that the court erred (1) in granting the motion for summary judgment and (2) in concluding that, to be liable for the acts of a dog, one must exercise control over the dog.

The following facts are not in dispute. The Zuras were, at all relevant times, the owners and lessors of 686 Tolland Street, East Hartford. At the time of the incident, St. Onge, with permission from the Zuras, kept a dog in his apartment. On June 1, 1983, while the plaintiff was a guest in St. Onge's apartment, she was attacked by his dog. She sustained severe lacerations to her face. The plaintiff contends that the Zuras, as landlords who consented to the dog's presence in the apartment, were liable under General Statutes § 22-357 ¹ as a "keeper" of a dog. The Zuras' uncontradicted affidavits stated that neither of them had ever fed or taken care of the dog, nor had the dog ever been allowed to roam in or use the yard abutting the building. The affidavits stated further that the only common area used by the dog was the staircase leading from the apartment to the street. That staircase was used only as access to and from the street. The record contains no counteraffidavits.

The trial court found no genuine issue of material fact. See Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984), Shuster v. Buckley, 5 Conn.App. 473, 477, 500 A.2d 240 (1985). It stated that "[b]ecause a party must exercise some degree of control over a dog to be found as keeper of that dog under § 22-357 the court concludes that under the circumstances the landlord is not the keeper of the dog." We agree.

General Statutes § 22-357 provides that the owner or keeper of a dog is liable for any damage done by that dog. General Statutes § 22-327 defines a "keeper" as "any person, other than the owner, harboring or having in his possession any dog...." See Malone v. Steinberg, 138 Conn. 718, 722, 89 A.2d 213 (1952). Webster, Third New International Dictionary, defines the verb "to harbor" as to afford lodging to, to shelter, to give refuge to. See Hancock v. Finch, 126 Conn. 121, 122, 9 A.2d 811 (1939).

"In the absence of an express or implied agreement to the contrary, the lessee of [an apartment] such as the one involved in this case acquires an exclusive occupancy and control of the [apartment] and, as incident thereto, the parts of the structure which form an integral part of the [apartment]." Bentley v. Dynarski, 150 Conn. 147, 150, 186 A.2d 791 (1962); see also Thomas v. Roper, 162 Conn. 343, 348, 294 A.2d 321 (1972). This long standing case law, applied to the facts presented in the Zuras' affidavits, provides no basis whatsoever for the claim that the landlord afforded lodging to, sheltered or gave refuge to his tenant's dog.

Words & Phrases and Corpus Juris Secundum define "harborer" somewhat differently. Both refer to the case of Markwood v. McBroom, 110 Wash. 208, 211, 188 P. 521 (1920) and state that a harborer of a dog is one who treats a dog as living in his home and undertakes to control the dog's actions. 39A C.J.S. 354; 19 Words & Phrases (West 1970), p. 96; see also McCarthy v. Daunis, 117 Conn. 307, 309 167 A. 918 (1933) (a case using almost identical language to that quoted above).

In Hancock v. Finch, supra, 126 Conn. at 123, 9 A.2d 811, the court stated that "possession cannot be fairly construed as anything short ... of dominion and control...." (Emphasis...