Raczkowski v. McFarlane

• Decision Date: 21 January 2020
• Docket Number: AC 42024
• Citation: 225 A.3d 305,195 Conn.App. 402
• Court: Connecticut Court of Appeals
• Parties: Toni RACZKOWSKI v. David J. MCFARLANE et al.

195 Conn.App. 402

225 A.3d 305

Toni RACZKOWSKI

v.David J. MCFARLANE et al.

AC 42024

Appellate Court of Connecticut.

Argued October 15, 2019

Officially released January 21, 2020

Keith Yagaloff, South Windsor, for the appellant (plaintiff).

Joseph M. Busher, Jr., Wethersfield, for the appellee (defendant Evelyn Garrow).

Keller, Prescott and Harper, Js.

HARPER, J.

The plaintiff, Toni Raczkowski, brought the underlying negligence action against the defendant landlord, Evelyn Garrow.¹ The plaintiff sought compensation for damages she allegedly sustained when she was bitten by a dog owned by the defendant's tenant, David J. McFarlane, on the leased property. The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant. The plaintiff claims that the court improperly granted the defendant's motion for summary judgment because it erroneously concluded that the defendant did not owe her a duty of care on the basis of the lease agreement between the defendant and McFarlane.² We disagree and, accordingly, affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following relevant facts and procedural history. On April 16, 2016, the plaintiff was walking her dog along the sidewalk in front of 295 Hilliard Street in Manchester (property). As she was walking her dog near the property, a dog named Diesel, owned by McFarlane, ran out and bit her. This occurred, in part, on the property. The plaintiff's injuries included multiple puncture wounds

and tears to her forearm and wrist. At the time of the incident, the defendant was the owner and landlord of the property, and was renting the property to McFarlane pursuant to a written lease agreement.

On April 11, 2017, the plaintiff commenced the present action. In her amended complaint, the plaintiff alleged that the defendant was negligent in that she knew or should have known that McFarlane's dog was dangerous and that allowing the dog to stay on the property constituted a failure to use reasonable care to keep the property in a reasonably safe condition. Furthermore, the plaintiff alleged that the lease between the defendant and McFarlane, which left the approval of any dogs living on the property to the discretion of the defendant, imposed on the defendant a duty of care to third persons who are not parties to the lease.

On January 19, 2018, the defendant filed a motion for summary judgment in which the defendant asserted that the plaintiff had failed to demonstrate that there was a genuine issue of material fact as to whether the defendant had actual or constructive knowledge of the dog's vicious propensities or whether the defendant owed the plaintiff a duty of care on the basis of the lease agreement between the defendant and McFarlane. The plaintiff filed an objection to the motion for summary judgment on April 9, 2018. In support of her objection, the plaintiff asserted that there was a genuine issue of material fact as to whether the lease imposed a duty on the defendant that extended to the plaintiff, a nonparty to the lease. The plaintiff relied on an affidavit from a neighbor that suggested that McFarlane's dog had vicious propensities.³

On April 16, 2018, the court, Shapiro, J ., held a hearing on the defendant's motion for summary judgment. The court granted the motion for summary judgment on June 11, 2018, and issued a memorandum of decision setting forth its reasoning. In its memorandum of decision, the court concluded that the defendant was entitled to summary judgment because there was no genuine issue of material fact as to whether the defendant knew or should have known of the dog's allegedly vicious propensities or whether the lease agreement imposed on the defendant a duty of care that extended to nonparties to the lease. The court further concluded that a plain reading of the language in the lease revealed that the lease did not impose a duty on the defendant that required her to make a reasonable inquiry into the behavior of McFarlane's dog.

On June 29, 2018, the plaintiff filed a "motion to reargue/reconsider" with the court. In her motion, the plaintiff reiterated many of the same arguments that she raised in her objection to the motion for summary judgment. Additionally, she characterized the court's analysis in its memorandum of decision as concluding that the language in the lease between the defendant and McFarlane was "vague." On August 9, 2018, the court issued a ruling on the plaintiff's "motion to reargue/reconsider" in which it disputed the plaintiff's characterization. The court concluded that it "did not find ... the language of the lease agreement ... ambiguous. Rather, the court found that the plain language of the lease [did] not support the plaintiff's interpretation that [the defendant] had a blanket duty to anyone entering the property to ensure that any dog residing on the property did not pose a threat.... [The lease] plainly and unambiguously did not create a duty owed by [the defendant] to unnamed third [persons], such as [the plaintiff] who happened to come onto [the defendant's] property." This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff advances one claim, but makes two arguments in support of that claim. First, she argues that the court erred in rendering summary judgment in favor of the defendant because there was a genuine issue of material fact as to whether the lease created a duty requiring the defendant to investigate the behavioral propensities of a tenant's dog on the property on behalf of third persons not parties to the lease. According to the plaintiff, this duty of care owed to her would have required the defendant to take some type of action to protect third persons not parties to the lease from dangerous dogs being kept on the property. Second, she argues that the language of the lease stating that the defendant had discretion to approve her tenant's pets created a genuine issue of material fact as to whether the defendant retained control over the property and, therefore, whether the lease imposed a duty of care to keep in a reasonably safe condition those portions of the property over which she reserved control. We disagree with the plaintiff's arguments.

We begin our analysis with the standard of review applicable to a trial court's decision to grant a motion for summary judgment. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party moving for summary judgment is held 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 [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Anderson v. Dike , 187 Conn. App. 405, 409–10, 202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d 1245 (2019).

The plaintiff argues that the language of the lease imposed a duty of care on the defendant to investigate the behavioral propensities of McFarlane's dog and that the lease recognized that the defendant owed a duty of care to nonparties to the lease who might encounter the dog on the property.

Here, because the lease is a contract and the plaintiff's claim presents a question of contract interpretation, the lease is subject to the same rules of construction as other contracts. See Bristol v. Ocean State Job Lot Stores of Connecticut, Inc ., 284 Conn. 1, 7, 931 A.2d 837 (2007). "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.... When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract.... [E]xtrinsic evidence may be considered in determining contractual intent only if a contract is ambiguous.... When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction.... The circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used.... In sum, decisional law holds that if the language of the contract is clear and unambiguous, our courts must look only to the four corners of the contract to discern the parties' intent." (Citations omitted; internal quotation marks omitted.) Konover v. Kolakowski , 186 Conn. App. 706, 719–20, 200 A.3d 1177 (2018), cert. denied, 330 Conn. 970, 200 A.3d 1151 (2019). Thus, when a contract is unambiguous within its four corners, as it is here, the interpretation of it is a question of law for this court. See Connecticut National Bank v. Rehab Associates , 300 Conn. 314, 319, 12 A.3d 995 (2011).

Additionally, "when the claim [of a duty of care arising out of a...