94 Conn. App. 617 | Conn. App. Ct. | 2006
Lead Opinion
Opinion
The plaintiff, Virginia Auster, brought this action pursuant to General Statutes § 22-357
The defendant is located on West Avenue in Norwalk and consists of a church building, a parish house and an education building. Pedro Salinas was an employee of the defendant and lived in an apartment in the parish house with his family.
“We begin with a brief discussion of the appropriate standard of review. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence.” (Citations omitted; internal quotation marks omitted.) O’Connor v. Board of Education, 90 Conn. App. 59, 63-64, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). “Although the trial court’s decision in this regard is entitled to great weight . . . where it is clear that the jury could not reasonably and logically have reached the conclusion [it] did, the court’s refusal to set aside the verdict rendered will not be sustained.” (Citations omitted.) Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980).
The plaintiff claims that the defendant is liable for her injuries because it qualifies as a “keeper” under § 22-357. “General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. A keeper is defined as any person, other than the owner, harbor
Salinas was solely responsible for the care of his dog.
“[I]n order to harbor or possess a dog, some degree of control over the dog must be exercised.” Buturla v. St. Onge, 9 Conn. App. 495, 498, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987). Although the defendant owned the premises, control over the premises where the dog inflicted the injuries did not convert the defendant into a “keeper” of the dog for purposes of statutory liability.
The defendant also claims on appeal that the admission of evidence of its liability insurance coverage was improper.
Connecticut Code of Evidence § 4-10 provides: “(a) General Rule. Evidence that a person was or was not insured against liability is inadmissible upon the issue of whether the person acted negligently or otherwise wrongfully, (b) Exception. This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” Here, the probative value of the defendant’s liability insurance was outweighed by its prejudicial impact. The plaintiff argued in her brief and at trial that
The judgment is reversed and the case is remanded for a new trial on the issue of common-law negligence.
In this opinion LAVERY, C. J., concurred.
General Statutes § 22-357 provides: “If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action.”
In light of our ruling, we will not address the second issue raised on appeal.
As part of Salinas’ compensation, he and his wife and four children were provided housing in an apartment in the rear of the parish house. He did not have a written lease with the defendant.
Count one set forth a cause of action against the defendant under General Statutes § 22-357. The jury was instructed that if it found in favor of the plain! iff on count one, it need not return a verdict on count two. Count two was based on common-law negligence.
Salinas testified that the defendant’s officials never fed or gave water to the dog. David Houston, the pastor from 1992 until May, 1999, testified that the defendant did not provide any care for the dog. Pastor James Stinson, who was the pastor at the time of the incident, also testified that no officials or trustees of the defendant ever cared for the dog in any capacity.
We note that although the defendant did not have a written lease with Salmas, the nature of the relationship was similar to that of a landlord-tenant relationship. This court held in Stokes v. Lyddy, 75 Conn. App. 252, 267, 815 A.2d 263 (2003), that a “landlord, however, is not a ‘keeper’ of a dog merely because a tenant owns a dog and keeps the dog on the premises.” To determine who is a “keeper” of a dog, the analysis relies on the degree of control exerted over the dog.
The defendant required that Salmas keep the dog inside the living quarters during the day, and allowed the dog to be chained to a railing on the steps leading to the living quarters between 6 p.m. and 7 a.m.
There are a number of Superior Court cases cited by the defendant, including May v. Scherber, Superior Court, judicial district of New Haven, Docket No. 311874 (February 10, 1993) (condominium association’s regulations controlling when condominium owners could use common areas for pets did not make association “keeper”), that have interpreted possession and control in a similar manner.
Two statements were made at the defendant’s July 16, 2001 trustees’ meeting regarding the defendant’s insurance coverage. Minutes of the trustees meeting were admitted during the trial. The first statement was that “the lawsuit has been turned over to the underwriter by the insurance company.” The second statement was that having the dog on the premises “could jeopardize our [the defendant’s] insurance coverage.”
Dissenting Opinion
dissenting. I respectfully disagree with the majority. As the majority recognizes, our standard of review “when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Menon v. Dux, 81 Conn. App. 167, 173, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed. 2d 463 (2004). By reversing the trial court’s refusal to set aside the verdict, I believe the majority has failed to abide by that standard of review.
The undisputed facts are as follows. The plaintiff, Virginia Auster, was injured by a mixed breed pit bull dog owned by Pedro Salinas. Salinas was employed by the defendant, Norwalk United Methodist Church, and, as part of his employment, was given living quarters in the parish house wherein the pit bull was housed. Prior to the incident in which the plaintiff was injured, the pit bull had attacked another person. As a result of that
General Statutes § 22-357 provides that “the owner or keeper [of a dog] . . . shall be liable for [any damage done by that dog] . . . .” (Emphasis added.) General Statutes § 22-327 (6) defines a “[k]eeper” as “any person, other than the owner, harboring or having in his possession any dog . . . .” A “harborer” of a dog is one who treats a dog as living in his home and undertakes to control the dog’s actions. Buturla v. St. Onge, 9 Conn. App. 495, 497, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987); see Falby v. Zarembski, 221 Conn. 14, 20 n.3, 602 A.2d 1 (1992).
In this case, the living quarters of Salinas were not rented to him but were part of the defendant’s premises. The living quarters were a portion of the first floor of the parish house and the basement. The remainder of the building was occupied by the rector. It is obvious that the defendant afforded shelter to Salinas and the pit bull.
Control of the offending dog, the second element, is the key issue in determining whether the dog was harbored by the defendant. In this case, that control clearly was demonstrated by the defendant when Salinas was instructed that the pit bull was allowed out of the apartment under certain conditions and ultimately when Salinas was directed to remove the dog from the property of the defendant after the dog bit the plaintiff, which was three months prior to the time Salinas vacated the premises. As a matter of law, it is clear
The final issue raised by the defendant was the admissibility of liability insurance before the jury. The majority correctly cites to the exception in Connecticut Code of Evidence § 4-10 with respect to insurance, which provides that such evidence is admissible when “offered for another purpose” such as “control . . . .” Conn. Code Evid. § 4-10 (b). Simply put, it was admissible when offered to show control of the offending dog.
Respectfully, for the foregoing reasons, I would affirm the judgment of the trial court.