Falby v. Zarembski

• Decision Date: 21 January 1992
• Docket Number: No. 14295,14295
• Citation: 602 A.2d 1,221 Conn. 14
• Court: Connecticut Supreme Court
• Parties: Roy J. FALBY et al. v. Richard ZAREMBSKI et al.

Page 1

602 A.2d 1

221 Conn. 14

Roy J. FALBY et al. v. Richard ZAREMBSKI et al.

No. 14295.

Supreme Court of Connecticut.

Argued Oct. 29, 1991.

Decided Jan. 21, 1992.

Michael T. Ryan, Stamford, with whom was Richard P. Colbert, Newtown, for the appellant-appellee (defendant Home Improvement and Remodeling Company, Inc.).

Howard B. Naylor, Norwalk, for appellees-appellants (plaintiffs).

Before SHEA, GLASS, COVELLO, BORDEN and BERDON, JJ.

SHEA, Justice.

The principal issues in this appeal and cross appeal are whether sufficient evidence was presented to establish that the defendant Home Improvement and Remodeling Company, Inc., was strictly liable under General Statutes § 22-357 ¹ as a "keeper" of the dog that attacked the named plaintiff and whether the trial court improperly denied the plaintiffs' motion to amend their complaint prior to trial. The named plaintiff, Roy Falby, and his wife and coplaintiff, Barbara Falby, commenced this action against the defendants, Richard Zarembski, Home Improvement and Remodeling Company, Inc. (Home Improvement), Thadeus J. Plonowski and William and John Cree to recover damages for the injuries Roy Falby sustained when he was attacked by a dog owned by Zarembski and for Barbara Falby's loss of her husband's consortium. The plaintiffs withdrew their action against the Crees and obtained a default against Zarembski before the commencement of the trial. At trial, the plaintiffs also withdrew their action against Plonowski. The jury returned a verdict in favor of both plaintiffs against the only remaining defendant, Home Improvement, on the theory that it was liable as a "keeper" of the dog under § 22-357. The court rendered judgment on the jury's verdict with respect to Roy Falby's claim, but set aside the verdict with respect to Barbara Falby's claim. ² Thereafter, Home Improvement filed this appeal in the Appellate Court, and the plaintiffs cross appealed. We transferred the case to this court pursuant to Practice Book § 4023. We reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. On November 1, 1985, Roy Falby, a postal carrier, was delivering mail to the Stamford home of the Crees when he was attacked and seriously injured by a pit bull terrier that was on the premises. At the time, the Crees were having some remodeling work performed on their house by Home Improvement. Zarembski, an employee of Home Improvement, owned the pit bull and had brought it to the work site with him, as he had done on numerous other occasions.

Before he was hired by Home Improvement, Zarembski had received permission from Plonowski, its president, to bring the dog with him to the various sites where he would be working. Zarembski frequently did so, usually allowing the dog to run loose at the sites. Neither Plonowski nor any other Home Improvement employee ever voiced an objection to or imposed any conditions on the dog's presence. In fact, Plonowski and others sometimes petted the dog while it was at the job sites.

Zarembski had also received permission from the supervisor at the Cree work site to bring the dog with him to that particular job. The dog was at the Cree site almost every day that work was being performed there. On those occasions, it was not tied up or leashed. Plonowski knew of the dog's presence there.

In this appeal, Home Improvement claims that: (1) it is entitled to judgment as a matter of law because § 22-357 imposes alternative liability on the owner or keeper of a dog and the plaintiffs had already obtained a default against Zarembski, the owner; (2) it is entitled to judgment as a matter of law because insufficient evidence was presented for the jury to have found that it was a "keeper" of the dog, within the meaning of § 22-357; and (3) it is entitled to a new trial because the trial court improperly instructed the jury on the definition of "keeper" under § 22-357. We agree with the second of these claims with respect to the complaint as submitted to the jury and, therefore, find it unnecessary to address the others.

In their cross appeal, the Falbys claim that they are entitled to a new trial because the trial court improperly: (1) denied their motion to amend the complaint prior to trial; (2) set aside the jury's verdict in favor of Barbara Falby on her loss of consortium claim under § 22-357; and (3) allowed the introduction of immaterial and prejudicial testimony regarding their sons. We agree with the first claim and grant the requested relief. We need not address the second claim because we have concluded that Home Improvement is entitled to judgment on the § 22-357 claim and, thus, that issue will not arise upon the trial of the negligence claim raised by the proposed amendment. See Part I, infra. Finally, we address the third issue because it is likely to arise at retrial.

I

General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. A "keeper" is defined as "any person, other than the owner, harboring or having in his possession any dog." General Statutes § 22-327. To harbor a dog is to afford lodging, shelter or refuge to it. Malone v. Steinberg, 138 Conn. 718, 722, 89 A.2d 213 (1952); Webster's Third New International Dictionary. "[P]ossession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog]...." Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). Applying these definitional principles to the facts of this case, we conclude that there was insufficient evidence to establish that Home Improvement was a "keeper" under § 22-357.

Viewed in the light most favorable to sustaining the jury's verdict; Kiss v. Kahm, 132 Conn. 593, 594, 46 A.2d 337 (1946); the evidence presented at trial established that Home Improvement, through its president, Plonowski, had knowledge that Zarembski was in the habit of bringing the pit bull terrier with him to various work sites, that it acquiesced in the presence of the dog at these sites and that it could have prohibited Zarembski from bringing the dog with him to work if it had so desired. Although such facts may implicate Home Improvement in some way in the attack of the dog on Roy Falby, they do not indicate that it harbored or had possession of the dog and thus do not justify the imposition of strict liability under § 22-357. There was no evidence that Home Improvement fed, watered, housed or otherwise cared for the dog. There was no evidence that it exercised any form of control over the actions of the dog. Contrary to the plaintiffs' claim, control over the premises where the dog inflicted the injuries or over Zarembski, by virtue of the employment relationship, did not convert Home Improvement into a keeper of Zarembski's dog while it was present at the work site. ³ Accordingly, we reverse the judgment holding Home Improvement strictly liable as a "keeper" under § 22-357.

II

We now consider the claims raised by the plaintiffs in their cross appeal involving, first, the amendment of their complaint prior to trial and, second, the admission of certain evidence regarding their sons.

A

The second count of the plaintiffs' original complaint, filed on June 6, 1986, contained, inter alia, the following allegations: "5. The defendant Home Improvement and Remodeling Co. Inc. was a keeper of the ferocious Pit Bull dog and is liable for the attack on Roy Falby and his injuries pursuant to Connecticut General Statutes Section 22-357. 6. The plaintiff Roy Falby's injuries and losses were caused by the negligence or recklessness of the defendant Home Improvement and Remodeling Co. Inc. in that: a) it kept or permitted the ferocious Pit Bull dog to be kept on the premises; b) it knew or reasonably could know that the Pit Bull dog had vicious propensities; c) it failed to maintain control over or to restrain the Pit Bull dog or cause the dog to be controlled or restrained." ⁴ On November 6, 1990, during jury selection, the plaintiffs made an oral motion to amend their complaint by separating the second count against Home Improvement into two counts alleging statutory liability under § 22-357 in one and common law negligence in the other. ⁵ Home Improvement objected to the proposed amendment. The trial court denied the motion, stating that the proposed amendment would have added an entirely new cause of action against Home Improvement and that the request was untimely because it was made on the eve of trial.

The plaintiffs maintain that the trial court improperly denied their motion for leave to amend the complaint. They contend that the amendment would not have introduced a new cause of action and would not have unduly delayed the trial. ⁶ Home Improvement argues that the plaintiffs' claims are not reviewable, except under the plain error doctrine, because the plaintiffs failed to move to set aside the verdict. On the merits, Home Improvement maintains that the trial court was correct in denying the request for the reasons stated in the record. We agree with the plaintiffs that the court should have permitted the amendment.

As a preliminary matter we address Home Improvement's contention that this court should afford only plain error review of the plaintiffs' claim because of their failure to make a motion to set aside the verdict. General Statutes § 52-228b provides in pertinent part: "No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court." We have repeatedly stated that strict compliance with § 52-228b is a prerequisite to plenary review of claims of error on appeal and that a party's failure to comply with this provision limits this court's consideration of such claims to ascertaining whether plain error...