Murphy v. Buonato

• Decision Date: 23 July 1996
• Docket Number: No. 14053,14053
• Court: Connecticut Court of Appeals
• Parties: David MURPHY v. Charles A. BUONATO, Jr., et al.

Page 411

679 A.2d 411

42 Conn.App. 239

David MURPHY v. Charles A. BUONATO, Jr., et al.

No. 14053.

Appellate Court of Connecticut.

Argued Feb. 28, 1996.

Decided July 23, 1996.

David G. Hill, Hartford, for appellant (defendant).

James A. Mulhall, Jr., with whom was Kevin T. Nixon, Sr., Naugatuck, for appellee (plaintiff).

Before EDWARD Y. O'CONNELL, LANDAU and HEALEY, JJ.

LANDAU, Judge.

The plaintiff brought this action pursuant to General Statutes § 22-357 ¹ to recover damages for personal injuries alleged to have been caused by the defendant's ² dog while it was in the plaintiff's care and custody. After a bench trial, the trial court rendered a judgment for the plaintiff and the defendant appealed.

On appeal, the defendant claims that the trial court improperly determined that the plaintiff was not a "keeper" of a dog within the meaning of § 22-357. The defendant further claims that keepers of dogs cannot recover under the statute because keepers do not fall within the class of persons that the legislature intended to protect under the strict liability provisions of § 22-357.

The following facts are relevant to the resolution of this appeal. The plaintiff and the defendant were friends. The defendant is the owner of a Chow dog. In October, 1992, the parties agreed that the plaintiff would care for the defendant's dog at the plaintiff's home while the defendant was out of town for approximately one week. The defendant delivered his dog to the plaintiff's residence on October 21, 1992.

The next morning, before leaving for work, the plaintiff took the dog for a walk and then placed it inside the house where it remained for the day. At 5 p.m., the plaintiff returned home from work, took the dog outside and tied it to a tree in the yard. Several hours later, the plaintiff walked the dog toward the house intending to bring it in for the night. The plaintiff untied the dog and took hold of its collar to prevent the dog from running away. Upon reaching the rear porch, the plaintiff attempted to open the door using his right hand while maintaining his grip on the dog's collar with his left hand. The dog suddenly bit the plaintiff's left hand causing several puncture wounds. Later that evening, the plaintiff went to a hospital where he received emergency medical treatment.

The plaintiff sought to recover damages from the defendant pursuant to § 22-357. ³ After a trial to the court, the defendant's motion for a directed verdict was denied, and the court rendered judgment in favor of the plaintiff, awarding him damages of $33,113.62. ⁴ Responding to the defendant's postjudgment motion to articulate whether it found that the plaintiff was a keeper, the trial court opined that, although the plaintiff had "possession" of the dog at the time he was bitten, he "was not a keeper of the subject dog, for the purposes of General Statutes § 22-357, at the time of the incident."

I

We begin our analysis with a determination of whether the trial court properly concluded that the plaintiff was not a keeper at the time he was injured. The defendant argues that the plaintiff meets the definition of a keeper because he not only harbored and possessed the defendant's dog, but also exercised the requisite dominion and control over it. The plaintiff argues that the trial court's finding was proper because, although the plaintiff assumed possession of and agreed to care for the defendant's dog, he merely exercised temporary and transient contact with it and, thus, did not exercise the necessary amount of control required by law to meet the statutory definition of a keeper. We agree with the defendant.

Because the determination of whether the plaintiff was a keeper is a question of fact; Falby v. Zarembski, 221 Conn. 14, 18, 602 A.2d 1 (1992); it is useful to state the proper standard of appellate review. " 'On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... A factual finding may be rejected by this court only if it is clearly erroneous.' (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153-54, 527 A.2d 679 (1987)." Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995).

"A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed...." (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn.App. 25, 41, 632 A.2d 1134 (1993).

It cannot be overlooked that the trial court's factual conclusion that the plaintiff was not a keeper for the purposes of § 22-357 is based on the subordinate facts it found. "Conclusions drawn from those underlying facts must be legal and logical. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). An appellate court reviews conclusions based on subordinate facts found, even if labeled conclusions of fact, to the same extent that it reviews conclusions of law. Hadfield v. Tracy, 101 Conn. 118, 125, 125 A. 199 (1924)." State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). Accordingly, we may and do determine whether, on the subordinate facts found, the trial court legally and logically concluded that the plaintiff was not a keeper for purposes of § 22-357.

"Of course, we should not hesitate to act when a clearly erroneous finding is discovered. See, e.g., Barbara Weisman, Trustee v. Kaspar, [supra, 233 Conn. at 549, 661 A.2d 530]; Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 638, 646 A.2d 772 (1994); Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); Gerber & Hurley, Inc., v. CCC Corp., 36 Conn.App. 539, 545, 651 A.2d 1302 (1995); Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 440, 651 A.2d 281 (1994)." Miceli v. Helyer, 40 Conn.App. 336, 349, 671 A.2d 826 (1996) (Schaller, J., dissenting).

Pursuant to General Statutes § 22-357, "[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. 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)." Falby v. Zarembski, supra, 221 Conn. at 19, 602 A.2d 1. "One who treats a dog as living at his house and undertakes to control his actions is [a] ... keeper." McCarthy v. Daunis, 117 Conn. 307, 309, 167 A. 918 (1933). In order to harbor or possess a dog, some degree of control must be exercised. Buturla v. St. Onge, 9 Conn.App. 495, 519 A.2d 1235 (1987). ⁵

Applying these principles to the facts of this case, we conclude that the plaintiff meets the definition of a keeper within the meaning of § 22-357. The subordinate facts found by the trial court established that in early October, 1992, the defendant informed the plaintiff that he had to travel to Oklahoma for approximately one week to give a deposition and asked the plaintiff to care for his dog while he was away. The plaintiff apprised the defendant that he would be willing to care for the dog unless his roommate objected. Thereafter, with his roommate's acquiescence, the plaintiff informed the defendant that he would care for the dog.

On the evening before his departure, the defendant delivered the dog to the plaintiff, at the plaintiff's residence, and provided the plaintiff with dog food and a chain to secure the dog in the plaintiff's yard. The defendant instructed the plaintiff not to allow the dog to roam. The plaintiff took possession of the dog upon its delivery and, in doing so, assumed sole responsibility to feed and water it, to provide shelter for it, and to walk it. Furthermore, on the day he was bitten, it was the plaintiff who had tied the dog to a tree, later untied it and took hold of its collar to prevent the dog from running away. In short, the subordinate facts found by the trial court established that the plaintiff not only harbored the dog by affording it lodging and shelter, but also exercised exclusive dominion and control over it.

Nevertheless, the trial court, in its response to the defendant's motion for articulation, found that the plaintiff "was merely watching the [defendant's] dog for a short period of time while the defendant was away" and that the plaintiff's "possession of the dog was subject to the specific directions for its care and feeding" as provided by the defendant. In finding that the plaintiff was not a keeper, the court stated that "it cannot be said that the plaintiff's temporary custody rose to the level of the 'exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.' " In support of its decision, the trial...