Giacalone v. Hous. Auth.

• Decision Date: 18 September 2012
• Docket Number: SC18669
• Court: Connecticut Supreme Court
• Parties: GIACALONE v. HOUSING AUTHORITY—CONCURRENCE

GIACALONE v. HOUSING AUTHORITY—CONCURRENCE

SC18669

Supreme Court of Connecticut

Dated: September 18, 2012

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ZARELLA, J., with whom McLACHLAN, J., joins, concurring in the judgment. I concur in the judgment and the majority's conclusion that, in certain circumstances, a landlord may be held liable under a common-law theory of premises liability for dog bite injuries to a tenant. I am compelled to write separately, however, because I disagree with much of the majority's reasoning. In my view, this court did not acknowledge in Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), that principles of common-law liability are applicable to dog bite injuries, and, consequently, Auster provides no guidance in deciding whether a negligence action can be brought in the present circumstances. Furthermore, the majority ignores the historic separation between dog bite claims brought pursuant to statutory authority and common-law negligence claims alleging dangerous conditions, and thus fails to apply the well established test traditionally employed in resolving novel questions, like the one in the present case, as to whether a legal duty exists. Finally, the majority's thinly supported analysis relies on two factually dissimilar cases addressing a landlord's duty to maintain the physical premises of a business establishment;¹ see Williams v. Milner Hotels Co., 130 Conn. 507, 508-10, 36 A.2d 20 (1944); and an apartment complex. See Reardon v. Shimelman, 102 Conn. 383, 386-89, 128 A. 705 (1925). Accordingly, I respectfully concur only in the judgment and the majority's ultimate conclusion that a landlord may be held liable under a common-law theory of premises liability for dog bite injuries in the particular circumstances of this case.

I

The majority and the Appellate Court conclude that this court recognized in Auster that ordinary principles of common-law liability could be brought to bear on the question of whether a landlord could be held liable in negligence for failing to protect against a dog attack. See Giacalone v. Housing Authority, 122 Conn. App. 120, 125-26, 998 A.2d 222 (2010). I disagree.

In Auster, this court stated that ''the plaintiff [had] failed to establish that the defendant [landlord, a church] was a keeper of the dog [under General Statutes § 22-357]. This is not to say, of course, that the defendant may not have been negligent in failing to take reasonable precautions to protect against the attack that occurred . . . particularly in view of the fact that [the] dog previously had bitten a church employee. We conclude only that the evidence was insufficient to hold the defendant strictly liable to the plaintiff as a keeper of the dog under § 22-357. On retrial, the plaintiff will have the opportunity to establish her common-law negligence claim against the defendant.'' (Emphasisadded.) Auster v. Norwalk United Methodist Church, supra, 286 Conn. 164-65.

On the basis of this language, I would conclude that the majority and the Appellate Court in the present case improperly construed Auster. In relying on Auster, the Appellate Court observed: ''If such an action would not lie as a matter of law, we can discern no reason why the court [in Auster] would have remanded for a new trial on that claim.'' Giacalone v. Housing Authority, supra, 122 Conn. App. 126. The Appellate Court conducted no further analysis other than to note that a number of other jurisdictions permit an injured party to bring an action against the landlord of property on which a dog bite injury occurred under a common-law negligence theory even when the landlord is not the owner or keeper of the dog. Id., 125. The Appellate Court's ultimate conclusion, however, rested on this court's comments in Auster. The Appellate Court simply stated that, ''in light of our Supreme Court's decision in Auster, we conclude that such a cause of action also may be viable in Connecticut.'' Id.

I believe that, to the extent the majority and the Appellate Court relied on the comments in Auster as a basis for their decisions, that reliance is misplaced because the comments were nonbinding dicta. ''Dicta are [o]pinions of a [court] which do not embody the resolution or determination of the specific case before the court [and] [e]xpressions in [the] court's opinion which go beyond the facts before [the] court and therefore are individual views of [the] author[s] of [the] opinion and [are] not binding in subsequent cases as legal precedent.'' (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 641, 645 n.5, 980 A.2d 845 (2009). Thus, the court's extraneous comments in Auster that the defendant might have been negligent and that the plaintiff would ''have the opportunity to establish her common-law negligence claim against the defendant''; Auster v. Norwalk United Methodist Church, supra, 286 Conn. 165; did not constitute recognition of a theory of common-law liability for dog bite injuries and can provide no guidance to this court in deciding whether to extend a landlord's duty under premises liability law in the present circumstances.²

Furthermore, insofar as the Appellate Court in this case could discern no reason why the court in Auster would have remanded for a new trial on the common-law negligence claim ''[i]f such an action would not lie as a matter of law''; Giacalone v. Housing Authority, supra, 122 Conn. App. 126; it failed to consider that the trial court had instructed the jury not to decide the common-law negligence claim if it returned a verdict for the plaintiff on the statutory negligence claim. The defendant in Auster also did not file a motion to strike or otherwise challenge the plaintiff's common-law negligence claim when it sought review of the trial court'sjudgment on the statutory negligence claim, as the plaintiff did in the present case, nor did the Appellate Court in Auster discuss the viability of the common-law negligence claim in reversing the judgment and remanding the case for a new trial on that claim. See generally Auster v. Norwalk United Methodist Church, 94 Conn. App. 617, 620-24, 894 A.2d 329 (2006), aff'd, 286 Conn. 152, 943 A.2d 391 (2008). In addition, this court took pains in Auster to emphasize that its holding was limited to the plaintiff's statutory negligence claim. Auster v. Norwalk United Methodist Church, supra, 286 Conn. 165. Accordingly, the common-law negligence claim remained for consideration by the jury following this court's decision to overturn the verdict for the plaintiff on the statutory negligence claim. See id. In Auster, therefore, this court had no choice but to agree with the Appellate Court that the case should be remanded for a new trial on the remaining common-law negligence claim. I therefore disagree with the majority and would conclude that the certified question of whether the Appellate Court properly relied on Auster must be answered in the negative.

II

I nonetheless believe that this court may reframe the certified question to address whether premises liability law should be extended to cover dog bite injuries, regardless of what might or might not have been said in Auster, because the plaintiff specifically raised the issue in her complaint without tying it to Auster.³ See, e.g., State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may reformulate certified question to conform to issue actually presented); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191, 884 A.2d 981 (2005) (court may ''reformulate . . . the certified question to reflect more accurately the issues presented''); Ankerman v. Mancuso, 271 Conn. 772, 777, 860 A.2d 244 (2004) (court may rephrase certified questions in order to render them more accurate in framing issues that case presents); State v. Brown, 242 Conn. 389, 400, 699 A.2d 943 (1997) (court may reframe certified question to eliminate focus on improper issue); Stamford Hospital v. Vega, 236 Conn. 646, 648 n.1, 674 A.2d 821 (1996) (court may reframe certified question to render it more accurate in framing issues presented). Thus, if the certified question is rephrased to eliminate the reference to Auster, I agree with the majority that the plaintiff may bring a common-law negligence claim against the defendant. I strongly disagree with the majority, however, insofar as it ignores more than 200 years of statutory authority on dog bite injuries, relies principally on two inapposite Connecticut cases in a futile attempt to show that the rule it establishes is firmly anchored in existing principles of common-law negligence, and fails to apply this...