Derby v. Tails of Courage, Inc.

• Decision Date: 18 March 2019
• Docket Number: CV186020192S
• Parties: Elizabeth DERBY PPA Elliot Derby v. TAILS OF COURAGE, INC.
• Court: Connecticut Superior Court

Elizabeth DERBY PPA Elliot Derby v. TAILS OF COURAGE, INC.

No. CV186020192S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

March 18, 2019

UNPUBLISHED OPINION

Bentivegna, J.

I STATEMENT OF THE CASE

This is a dog bite case. The issue presented is whether the court should grant the defendant’s motion to strike the first count of the plaintiff’s complaint on the ground the plaintiff alleges that she is a keeper within the meaning of General Statutes § 22-357.

The plaintiff, Elizabeth Derby, commenced this action on October 31, 2018, by service of process on the defendant, Tails of Courage, Inc. The plaintiff filed her complaint on November 1, 2018, which alleges two claims: (1) strict liability pursuant to General Statutes § 22-357 in the First Count; and negligence in the Second Count.

The plaintiff alleges the following facts in the First Count of her complaint, which is the only count at issue. The plaintiff is the parent of Elliot Derby, a minor child (child). On or about May 12, 2017, the plaintiff went to the defendant’s place of business to pick up a dog named "Blackie" (dog) after their application to foster the dog was approved by the defendant. After picking up the dog, the plaintiff then picked up her child from school. While in the plaintiff’s motor vehicle on the way to the plaintiff’s home, the dog suddenly attacked and bit the child, causing him injury. At the time of the attack, the minor child was not committing a trespass or tort and was not teasing, tormenting, or abusing the dog. The plaintiff subsequently learned that the dog had a history of biting which was not disclosed by the defendant. During the evening and night after the dog bit the child, the dog continued to growl and displayed aggressive behavior toward each of the plaintiff’s three children. The plaintiff returned the dog to the defendant the next day. The defendant alleges that the defendant "was, at the time of the injury, the owner of said dog ... and ... is liable under General Statutes § 22-357."

On January 15, 2019, the defendant filed a motion to strike (# 104) the First Count of the plaintiff’s complaint with a memorandum of law attached thereto. On February 11, 2019, the plaintiff filed an objection (# 107) to the defendant’s motion to strike as well as a memorandum of law in support (# 108) thereof. On March 7, 2019, the defendant responded to the plaintiff’s objection by filing a reply memorandum (# 109). The court heard oral argument on the defendant’s motion at the March 11, 2019 civil short calendar.

II DISCUSSION

"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] 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, [the court notes] that [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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "A motion to strike ... does not admit legal conclusions ... stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

The defendant moves to strike the First Count of the plaintiff’s complaint on the ground that it is legally insufficient because the plaintiff alleges facts that, if true, indicate the plaintiff was the keeper of the dog at the time of the alleged dog bite and, as such, she cannot recover under General Statutes § 22-357. The plaintiff responds, arguing that she has pleaded facts that, if true, show the defendant was the owner of the dog and the plaintiff was not the dog’s "keeper" at the time her child sustained the alleged injuries and even if she was the keeper of the dog, the plaintiff is only bringing this action on behalf of the child, who is the true party in interest and, therefore, cannot be a keeper of a dog within the meaning of § 22-357.

Section § 22-357(b) provides in relevant part that: "If any dog does any damage to ... the body ... of any person, the owner or keeper ... shall be liable for the amount of such damage, except when such damage has been occasioned to the body ... 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." "Three elements must be met to bring a claim under § 22-357: (1) the plaintiff was damaged or injured by a dog; (2) the plaintiff was not committing a trespass or other tort, or teasing, tormenting, or abusing the dog; and (3) the defendant was the dog’s keeper or owner." Haight v. Friends of Homeless Animals, Superior Court, judicial district of Windham, Docket No. CV-14-6007788-S (July 16, 2014, Riley, J.) [58 Conn.L.Rptr. 610].

For the purposes of § 22-357, "owner" is undefined. See General Statutes § 22-327 et seq. "If a statute ... does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Lauer v. Zoning Commission of the Town of Redding, 246 Conn. 251, 257, 716 A.2d 840 (1998). An owner is "one that owns" something or "one that has the legal or rightful title [to something]" regardless of whether they are the possessor or not. Webster’s Third New International Dictionary (1993); Consolidated Diesel Electric Corp. v. Stamford, 156 Conn. 33, 38, 238 A.2d 410 (1968).

A "keeper" is defined as "any person, other than the owner, harboring or having in his possession any dog." General Statutes § 22-327(6). "To harbor a dog is to afford lodging, shelter or refuge to it ... [P]ossession [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control to and in substitution for that which ordinarily would be exerted by the owner in possession ... One who treats a dog as living at his [or her] house and undertakes to control his [or her] actions is [a] ... keeper ..." (Citations omitted; internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 160, 943 A.2d 391 (2008).

"[A] nonowner of a dog cannot be held strictly liable for damage done by the dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done ... [S]uch proof will generally consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering, or otherwise caring for the dog when the incident occurred." Id., 161-62. Courts "are not free to construe the term ‘keeper’ so broadly as to include persons authorized to exercise only limited dominion and control over a dog." Id., 163. "[T]o construe the term ‘keeper’ more liberally would produce an anomalous result, namely, that both the nonowner of a dog and its owner would be held to the same heavy liability imposed by [§ 22-357] ... even when the evidence establishes that the former exercised considerably less control over the dog than the latter. Such a result also would be inconsistent with the principle that statutes in derogation of the common law, including § 22-357 ... are to be construed narrowly." (Citations omitted; internal quotation marks omitted.) Id., 162.

The plaintiff alleges that on May 12, 2017, she went to the defendant’s place of business to pick up the dog "after their application to foster Blackie before adopting said dog was approved ..." This allegation implies that, pursuant to some agreement, the defendant surrendered the dog to the plaintiff for an unspecified term, during which the plaintiff would care for the dog before deciding whether to adopt the dog or not. Fostering the dog necessarily implies that the plaintiff was authorized to feed, give water to, exercise, shelter, or otherwise care for the dog. These activities typically constitute activities a person does when they harbor a dog. Id., 161-62. If a person harbors a dog, then they are a "keeper" for purposes of § 22-357. § 22-327(6). Based on the facts alleged, the plaintiff became the keeper of the dog upon picking up the dog on May 12, 2017, for the duration of the foster agreement.

Nevertheless the plaintiff argues she was not the keeper of the dog, but, rather, the defendant was the owner at the time the child sustained injuries from the dog’s alleged attack. The plaintiff asserts in paragraph 10 of her complaint that the defendant was the owner of the dog at the time of the injury as used in § 22-357. This allegation is a legal conclusion and is not taken as admitted in considering the present motion and will, accordingly, be disregarded. Faulkner v. United Technologies Corp., supra, 240 Conn. 588. In paragraph 3 of the complaint, the plaintiff alleges that she went to the defendant’s place of business to pick up the dog "after their application to foster Blackie before adopting said dog was approved ..." This allegation implies that, pursuant to some agreement, the defendant surrendered the dog to ...