Houghtaling v. Benevides

• Court: Connecticut Court of Appeals
• Writing for the Court: ALVORD, J.
• Citation: Houghtaling v. Benevides, 217 Conn.App. 754, 290 A.3d 429 (Conn. App. 2023)
• Docket Number: AC 45568
• Decision Date: 28 February 2023
• Parties: Aurora HOUGHTALING v. Kimberly BENEVIDES et al.

217 Conn.App. 754

290 A.3d 429

Aurora HOUGHTALING

v.Kimberly BENEVIDES et al.

AC 45568

Appellate Court of Connecticut.

Argued February 1, 2023

Officially Released February 28, 2023

Christopher D. DePalma, for the appellant (plaintiff).

Daniel J. Krisch, with whom, on the brief, was Jesse D. Conrad, Hartford, for the appellee (defendant Jakub Micengendler).

Bright, C. J., and Alvord and Moll, Js.

ALVORD, J.

The plaintiff, Aurora Houghtaling, appeals from the judgment of the trial court granting the motion for summary judgment filed by the defendant Jakub Micengendler¹ in this tort action, commenced pursuant to General Statutes § 22-357, commonly known as the dog bite statute. On appeal, the plaintiff claims that the court erred in rendering summary judgment because the underlying facts do not support the court's conclusion that there was no genuine issue of material fact that the plaintiff was a "keeper" of the dog that allegedly caused her to sustain an injury, thus precluding her from recovery pursuant to § 22-357. We affirm the judgment of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are necessary for our resolution of this appeal. On December 4, 2018, the plaintiff borrowed a vehicle from Kimberly Benevides in Colchester to attend a meeting with the plaintiff's probation officer in Norwich. The plaintiff agreed to take Benevides’ dog with her in the car. The dog was leashed while riding in the car, and no one else was in the car with the plaintiff and the dog.

The plaintiff left the dog in the car while she met with her probation officer. After her meeting, the plaintiff returned to the car. When she partially opened the door, the dog, still leashed, jumped from the car and ran in different directions. The dog's leash became wrapped around the plaintiff's legs, causing her to fall to the ground and sustain injuries.

In March, 2021, the plaintiff commenced the present action against the defendant and Benevides. The operative complaint, amended in April, 2021, alleged two counts pursuant to § 22-357, which imposes strict liability on the owner or keeper of a dog for any damage to the body or property of any person caused by the dog, with limited exceptions. In count one, the plaintiff alleged that Benevides was the "owner and/or keeper" of the dog. She alleged that Benevides told the plaintiff that she could use her vehicle on December 4, 2018, if the plaintiff took the dog with her. The plaintiff alleged that when she attempted to enter the vehicle after her appointment, the dog "bolted from the vehicle causing its leash to get tangled up with the plaintiff and causing her to be dragged to the ground." As a result, the plaintiff alleged that she suffered "severe and permanent injuries" including fractures of the right distal radius and ulnar styloid, deformities of the right wrist and elbow, scarring of her right arm and wrist, and loss of strength and mobility in her right arm. The plaintiff alleged that she has incurred medical and surgical expenses and has endured pain and suffering and loss of enjoyment in her normal life activities. The plaintiff alleged that she was not teasing, tormenting, or abusing the dog, and was not committing a trespass or other tort. She alleged that Benevides was strictly liable for the plaintiff's injuries pursuant to § 22-357.

In count two, the plaintiff incorporated by reference the allegations of count one. She alleged that the defendant also was "the owner and/or keeper" of the dog. Specifically, the plaintiff alleged that, on the date of the incident, the defendant "was living with ... Benevides and was providing room and board for the dog ... and was also a keeper of said dog and thereby jointly responsible with ... Benevides, pursuant to § 22-357 ...." On May 3, 2021, the defendant filed an answer, including special defenses,² in which he denied the allegations that he was the owner and/or keeper of the dog and that he was living with Benevides or providing room and board for the dog. The plaintiff thereafter filed a reply to the defendant's special defenses.

On February 14, 2022, the defendant filed a motion for summary judgment as to count two of the complaint and a memorandum of law in support of that motion. Therein, he argued that he was not the owner or keeper of the dog and, therefore, he could not be liable pursuant to § 22-357. Alternatively, he argued that, because the plaintiff was the keeper of the dog at the time of the incident, she could not recover pursuant to § 22-357.

The defendant attached to his memorandum of law: his own affidavit, the affidavit of Benevides, the plaintiff's responses to the defendant's requests for admission, and the plaintiff's responses to the defendant's interrogatories.³ In the defendant's affidavit, he averred that he lived in Colchester at the time of the incident, he owns the property in Mansfield where Benevides lives, and he rents that property to her. The defendant averred that he has never owned or cared for the dog. Benevides averred that she lives in Mansfield and that the defendant never has lived at the home in Mansfield. Benevides averred that she purchased and owns the dog, cares for the dog, and the dog is solely her property. She averred that the defendant did not purchase, own, or care for the dog. In her responses to the defendant's requests for admission, the plaintiff admitted that she borrowed a vehicle from Benevides and the dog was in the vehicle that she borrowed. In her discovery responses, the plaintiff stated that she "believe[d] the owner of the vehicle was ... Benevides."

On May 13, 2022, the plaintiff filed an objection to the defendant's motion for summary judgment, in which she argued that her "seemingly temporary relationship" with the dog was not sufficient to transform her into a keeper of the dog.

(Emphasis omitted.) She argued that the defendant was a keeper of the dog. She attached her own affidavit, in which she averred that, on the date of the incident, she was living in Colchester and walked to 147 South Main Street, where Benevides and the defendant were living together. She averred that the two had a romantic relationship and that the defendant provided financial support to Benevides and provided "lodging, refuge, and care for the dog ...." She further averred that the defendant would care for the dog while Benevides was incarcerated and that the plaintiff had been to the defendant's house in Colchester where the defendant was caring for the dog by himself. The plaintiff averred that she never had control of the dog "at any time prior to the incident." The plaintiff also appended to her objection various documents, including printouts of the Judicial Branch's criminal/motor vehicle conviction case details, a police press release, and a news bulletin entry, all purporting to show that Benevides lived at the address of 147 South Main Street in Colchester. In her objection, the plaintiff argued, based on the documents she submitted, that "[i]t appears [that Benevides] was in jail on multiple occasions wherein the defendant ... was the sole keeper [of the dog] as asserted by the plaintiff." On May 20, 2022, the defendant filed a reply, reiterating his earlier positions. The court held oral argument on the motion for summary judgment on May 24, 2022.

On June 3, 2022, the court issued its memorandum of decision. The court concluded that there was no genuine issue of material fact that the plaintiff was the keeper of the dog at the time of the incident. Specifically, the court stated that the plaintiff, at the time of the incident, "had sole possession" of the dog, "accepted responsibility for the dog's care, and exercised dominion and control over the dog's actions." Accordingly, the court determined that the plaintiff was barred from recovery under § 22-357. Because it concluded that the plaintiff was a keeper of the dog at the time of the incident, the court declined to decide whether there was a genuine issue of material fact that the defendant was an owner or keeper of the dog.⁴ This appeal followed.

Before turning to the plaintiff's claim on appeal, we first set forth our standard of review. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. ... Our review of the trial court's decision to grant [or to deny a] motion for summary judgment is plenary." (Footnote omitted; internal quotation marks omitted.) Atlantic St. Heritage Associates, LLC v. Atlantic Realty Co. , 216 Conn. App. 530, 539–40, 285 A.3d 1128 (2022).

On appeal, the plaintiff claims that the...