Stokes v. Lyddy

• Decision Date: 25 February 2003
• Docket Number: (AC 22309).
• Citation: 75 Conn. App. 252,815 A.2d 263
• Court: Connecticut Court of Appeals
• Parties: RASHA STOKES v. CHRISTOPHER J. LYDDY ET AL.

75 Conn. App. 252

815 A.2d 263

RASHA STOKES v. CHRISTOPHER J. LYDDY ET AL.

(AC 22309).

Appellate Court of Connecticut.

Argued October 28, 2002.

Officially released February 25, 2003.

Schaller, West and Shea, Js. Michael R. Denison, legal intern, with whom was H. Jeffrey Beck, for the appellant (plaintiff).

Michael C. Conroy, with whom, on the brief, was Jon S. Berk, for the appellees (defendants).

Opinion

SCHALLER, J.

This case presents an issue of first impression. We are asked to decide whether a landlord owes a duty, at common law, to a nontenant who, while at a location away from the leased premises, is bitten by a tenant's dog.

The plaintiff, Rasha Stokes, appeals from the summary judgment rendered by the trial court in favor of the defendant landlords, Christopher J. Lyddy and Barbara Lyddy. On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment because (1) under general principles of premises liability, the defendants had a duty to protect her, and (2) the court should have recognized a common-law duty by extending that duty to nonowners and nonkeepers of dogs. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiff's appeal. The defendants own an apartment building at 270 Gurdon Street in Bridgeport where Tawana Ruff and Shawn Ruff resided.¹ The plaintiff resided nearby at 280 Gurdon Street.

Tawana Pantoja, now Tawana Ruff, entered into the lease on or about January 1, 1996. The lease permitted the landlord to enter the leased premises to make inspections. At that time, Tawana did not own the dog in question, a pit bull.

On or about December 22, 1996, the Ruffs' pit bull escaped and attacked the plaintiff as she walked along a public sidewalk in the vicinity of 280 Gurdon Street. The attack did not occur on any portion or common area of the leased property. As a result of the bite, the plaintiff incurred medical bills in the amount of $260.

The plaintiff commenced this common-law negligence² action by writ of summons and complaint, made returnable on December 16, 1997, as a result of the bite that she received from the Ruffs' dog on December 22, 1996.³ The plaintiff did not commence an action against the Ruffs.

On March 12, 1998, the plaintiff filed an amended complaint, claiming that the defendants were liable based on a theory of common-law negligence, wherein the defendants allegedly had a duty to maintain the premises at 270 Gurdon Street in a reasonably safe condition, free from dangerous defects, and to exercise reasonable diligence in correcting known defects. The plaintiff claimed that the defendants had a duty to warn her of the dog's dangerous propensities and to take corrective action as necessary to prevent her from being harmed by the Ruffs' dog.⁴

In their answer, the defendants denied ownership of the dog and denied that they knew the Ruffs had harbored the dog in their apartment. The defendants also denied that they knew the dog had exhibited vicious propensities in the past. The defendants raised the special defense that if the plaintiff had been injured as alleged, such injury resulted from her having committed a trespass or tort or from teasing the dog.

The case was assigned for trial commencing on November 11, 1999. In accordance with Practice Book § 17-44, the defendants, on November 15, 1999, filed a motion for leave to file a motion for summary judgment, with the accompanying motion and memorandum of law, to be heard prior to trial.⁵ The court granted the motion for leave to file the motion. Pursuant to Practice Book § 23-61, the court referred the matter to a court annexed arbitration program. The parties appeared before an arbitrator, Michael S. Lynch, on December 21, 1999. The arbitrator filed his decision on April 18, 2000, in which he concluded that judgment should be rendered for the defendants because "there was no credible evidence . . . to indicate that the defendants had any reason to know that the dog had dangerous propensities prior to this incident. Consequently, the arbitrator [found] that the defendants could not have reasonably known of any dangerous condition at the premises and, therefore, they had no duty to warn anyone about the dangerous condition." The plaintiff objected to the arbitrator's decision and requested a trial de novo on May 4, 2000, in compliance with Practice Book § 23-66 (a).

On August 1, 2000, the plaintiff filed her objection to the defendants' motion for summary judgment.⁶ The defendants filed their reply on September 5, 2000. The court concluded that, as a matter of law, the defendants did not owe the plaintiff a duty and rendered summary judgment in favor of the defendants on May 31, 2001. The plaintiff filed a motion to reargue on June 18, 2001. The court denied the motion on August 13, 2001, and the plaintiff appealed. "Our standard of review of a trial court's granting of summary judgment is well established. Pursuant to Practice Book § 17-49, 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. Such questions of law are subject to plenary appellate review." (Emphasis added; internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). A material fact is "a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

"Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.. . . It is not enough that one opposing a motion for summary judgment claims that there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit." (Citation omitted; internal quotation marks omitted.) Id., 377. Pursuant to Practice Book § 17-46, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . ."

"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 871, 794 A.2d 997 (2002). Therefore, to answer the question presented, we first must determine whether the landlord was under a duty to prevent the alleged harm.

"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment [however] because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 660, 691 A.2d 1107 (1997). "Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

The plaintiff claims that the court improperly rendered summary judgment because the defendants owed her a duty of reasonable care. The plaintiff argues that we should recognize the duty of a landlord to third persons for a dog bite inflicted off of the landlord's premises when the dog is owned by a tenant. Essentially, the plaintiff requests us to extend liability for a dog bite to nonowners and nonkeepers of dogs.⁷ The plaintiff seeks to base that alleged duty on the landlord's mere ownership and control over the property instead of over the dangerous instrumentality, in this case the dog, or the activity. We are not persuaded.

We note that in the plaintiff's statement of claims and in her supporting arguments, she merges the common law concerning the standard of care owed to others by an animal's keeper with the rules that govern a property owner's duty to keep his premises reasonably safe and to abate nuisances.⁸ By contrast, the defendants contend that the law to be applied to this case is the law of injury by animal and not the law of premises liability. They argue that they cannot be held liable for the injury inflicted by their tenants' dog because under the law of torts pertaining to injury by animals, only the owner or keeper of the animal can be held liable. Even if the law of premises liability were applicable, they argue, they would not be liable because none of the exceptions to the rule exempting landlords from liability for injuries occurring on or off of the leased property applies. With that in mind, we will address issues of premises liability and liability for injuries caused by animals separately.

I

The plaintiff first claims that under general principles of premises liability, the defendants had a duty to protect her as she traveled along a public sidewalk. Specifically, she argues that (1) the defendants had a duty reasonably to maintain the property over which they maintained control and (2) under 2 Restatement (Second), Torts § 379A (1965), the defendants had a duty to remove a nuisance from their property. Depending on where the injury occurs, off or on the premises, the duty of the landowner, based on premises liability, will vary. We will consider each in turn.

A

The plaintiff argues that because the defendants were landlords, they had a duty to maintain, in a reasonably safe manner, the property...