Giacalone v. Hous. Auth. of Wallingford

• Decision Date: 18 September 2012
• Docket Number: No. 18669.,18669.
• Citation: 51 A.3d 352,306 Conn. 399
• Court: Connecticut Supreme Court
• Parties: Patricia GIACALONE v. HOUSING AUTHORITY OF THE TOWN OF WALLINGFORD.

306 Conn. 399

51 A.3d 352

Patricia GIACALONE

v.HOUSING AUTHORITY OF THE TOWN OF WALLINGFORD.

No. 18669.

Supreme Court of Connecticut.

Argued Feb. 10, 2012.

Decided Sept. 18, 2012.

Marc J. Ubaldi, New Haven, for the appellee(plaintiff).

Michael F. O'Connor, North Haven, for the appellant(defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^*

HARPER, J.

The sole issue in this certified appeal is whether a landlord may be held liable, under a common-law theory of premises liability, for injuries sustained by a tenant after being bitten by a dog owned by a fellow tenant and kept on premises owned by the common landlord, when the landlord knew of the dog's dangerous propensities, but did not have direct care of, or control over, the dog.The defendant, the housing authority of the town of Wallingford, appeals, upon our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court following its decision granting the defendant's motion to strike a complaint brought by the plaintiff, Patricia Giacalone, seeking to recover damages for such injuries.Giacalone v. Housing Authority,122 Conn.App. 120, 121, 998 A.2d 222(2010).We conclude that a landlord's common-law duty to alleviate known dangers includes dangers posed by vicious dogs, and, accordingly, we affirm the Appellate Court's judgment.

The record reveals the following undisputed facts and procedural history.In accordance with General Statutes § 8–67,¹the plaintiff timely commenced a negligence action against the defendant.The complaint alleges that the plaintiff, a tenant of the defendant's residing at 44 Louis Circle in Wallingford, sustained injuries and other harm after being bitten by a dog at or near 14 Tremper Drive in Wallingford, a nearby property of which the defendant is also the landlord.The complaint further alleges that the defendant was aware that the attacking dog was dangerous and aggressive, and that the plaintiff's injuries resulted from the defendant's negligence in the face of that knowledge.Specifically, the complaint alleges that the defendant was negligent in failing, inter alia: to remove the dog from the property or otherwise enforce a lease provision prohibiting tenants from keeping dogs without permission; to ensure that the dog was removed from the premises following the defendant's issuance of an order, two years prior to the attack, instructing the dog's owners to remove the dog; to keep the plaintiff safe from dog attacks on the premises; and to warn the plaintiff of the presence of a dangerous dog.

In response to the complaint, the defendant filed a motion to strike pursuant to Practice Book§ 10–39, contending that the plaintiff had failed to plead the necessary elements to sustain a cause of action for liability arising from a dog bite because the complaint did not allege that the defendant was the dog's owner or keeper.The trial court granted the defendant's motion, concluding that only the owner or keeper of a dog may be held liable for any injuries the animal causes.Thereafter, the court rendered judgment for the defendant, from which the plaintiff appealed to the Appellate Court.That court reversed the trial court's judgment and remanded the case for further proceedings;id., at 126, 998 A.2d 222; reasoning that, although a cause of action historically had been unavailable against a defendant who was not the dog's owner or keeper, this court's decision in Auster v. Norwalk United Methodist Church,286 Conn. 152, 165, 943 A.2d 391(2008), recognized a broader theory of common-law liability.Giacalone v. Housing Authority,supra, at 125–26, 998 A.2d 222.We thereafter granted the defendant's petition for certification to appeal to this court, limited to the following question: “Did the Appellate Court properly determine that, pursuant to Auster ... the defendant could be held liable as a result of a dog bite from a dog that was owned and kept by a tenant of the [defendant]?”Giacalone v. Housing Authority,298 Conn. 906, 907, 3 A.3d 69(2010).We answer that question in the affirmative.

The defendant contends on appeal that, notwithstanding this court's decision in Auster, only the owner or keeper of a dog may be held liable for injuries caused by that dog.The defendant further asserts that the present case is factually distinguishable from Auster because the defendant in that case exercised some control over the dangerous dog.We are not persuaded.

We begin by recounting the standard governing appellate review of a trial court's decision to grant a motion to strike.“A motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court.As a result, our review of the [trial] court's ruling is plenary....We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency....[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied....Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.In doing so, moreover, we read the allegations broadly ... rather than narrowly.”(Internal quotation marks omitted.)Sturm v. Harb Development, LLC,298 Conn. 124, 130, 2 A.3d 859(2010).

Before turning to the central issue of this appeal—that is, the proper interpretation of this court's opinion in Auster—we briefly outline the rules of liability pertaining to animal attacks that predate that case.Under the common law of Connecticut, one who keeps a wild animal does so at the peril of being held strictly liable for any harm it causes, but “[i]f one keeps a domestic animal having neither mischievous nor vicious propensities, he will not be liable if the animal trespass[es] and do[es] injury.”Bischoff v. Cheney,89 Conn. 1, 4, 92 A. 660(1914).As suggested by the qualification to this proposition, the rule that the owner of a domestic animal is not responsible for the harm caused by that animal does not apply if the animal is known to be dangerous: “If the domestic animal belongs to a species naturally inclined to do mischief or be vicious, or if it be in fact vicious, and the owner have knowledge, actual or constructive, of such propensity, it is his duty to use reasonable care to restrain the animal in such manner as to prevent its doing injury, and when he permits the animal to go at large or to trespass, he fails in his duty, and hence is liable for injury done by the trespassing animal.”(Emphasis added.)Id.;²see alsoBaldwin v. Ensign,49 Conn. 113, 117–18(1881)(“It is the duty of a man who owns a vicious animal to give notice of his propensity or to restrain him; his omission to do so is negligence which makes him liable for the consequences.If the animal is not accustomed to do mischief and is where he rightfully belongs and does an injury, there is no negligence and no liability.”).Thus, under Connecticut common law, knowledge of a domestic animal's vicious propensity imposes a duty on the owner to restrain that animal, and failure to do so is treated as negligence, triggering liability for damage caused by the animal.

This common-law rule has been modified substantially as it pertains to dogs.Specifically, General Statutes § 22–357 imposes strict liability on the “owner or keeper” of a dog for harm caused by the dog, with limited exceptions.³“[The] principal purposeand effect [of § 22–357] was to abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper became no longer dependent upon his knowledge of the dog's ferocity or mischievous propensity; literally construed the statute would impose an obligation on him to pay for any and all damage the dog may do of its own volition.”Granniss v. Weber,107 Conn. 622, 625, 141 A. 877(1928).

The common-law duty to restrain—and its replacement with a strict liability rule with respect to dogs—doesnot, however, exhaust the range of common-law theories of liability applicable to animal bites.This unremarkable fact is exemplified by Williams v. Milner Hotels Co.,130 Conn. 507, 509, 36 A.2d 20(1944), in which the plaintiff brought a negligence action against the owner of a hotel with a known rat problem after he was bitten by a rat while staying there.The innkeeper's liability was grounded not in the absurd premise that he had a duty to restrain the offending rat, but, rather, in a general rule of premises liability, namely, that “[a]n innkeeper is required to use reasonable care to keep his inn in a reasonably safe condition for his invitees.”Id., at 511, 36 A.2d 20; see also Pettway v. Turbana Corp.,Superior Court, judicial district of Fairfield, DocketNo. FBT–CV10–6008870–S (September 14, 2011)(denying summary judgment on premises liability claim arising from spider bite when issue of material fact existed regarding whether defendant was on notice of presence of spiders).

With these considerations in mind, we turn to our decision in Auster v. Norwalk United Methodist Church,supra, 286 Conn. at 152, 943 A.2d 391.In that case, the plaintiff, who was bitten by a dog owned by an employee of the defendant church, brought an action seeking damages under § 22–357, the strict liability dog bite statute.Id., at 153–54, 943 A.2d 391.We concluded that the plaintiff could not prevail under § 22–357 because “there was no evidence that the [church] exerted control over [the] dog in a manner similar to that of an owner,” and, therefore, “the plaintiff failed to establish that the [church] was a keeper of the dog,” as required to trigger liability under the statute.Id., at 164–65, 943 A.2d 391.We then proceeded, however, to clarify the scope of our holding: “This is not to say, of course, that the [church] may not have...