DAWN CHARLES v. DENISE MITCHELL ET AL.
(AC 36461)
Appellate Court of Connecticut
Argued February 10—officially released June 23, 2015
DiPentima, C. J., and Alvord and Pellegrino, Js.
(Appeal from Superior Court, judicial district of Hartford, Schuman, J.)
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Jonathan Perkins, with whom was Wendi Kowarik, for the appellant (plaintiff).
Daniel J. Krisch, with whom, on the brief, was Scott S. McKessy, for the appellee (defendant John Sitaras).
Opinion
PELLEGRINO, J. In this premises liability action, the plaintiff, Dawn Charles, appeals from the trial court‘s denial of her motions to reargue and the summary judgment rendered in favor of the defendant landlord, John Sitaras.1 On appeal, the plaintiff claims that the court improperly concluded as a matter of law that a landlord who is aware of the dangerous propensities of a dog being kept by a tenant on the landlord‘s property may not be liable for injuries sustained by a nontenant who is bitten by the dog beyond the boundaries of the landlord‘s property. We affirm the judgment of the trial court.
The court‘s memorandum of decision reveals the following undisputed facts and procedural history. The defendant owned a multifamily residence located at 6-12 Woodlawn Circle in East Hartford. In October, 2010, the defendant and Denise Mitchell entered into a lease agreement for the apartment located at 6 Woodlawn Circle. The lease agreement prohibited ownership of a dog by the tenant. Mitchell is the owner of a mixed breed pit bull dog. From the inception of the lease or shortly thereafter, the defendant knew that Mitchell had a dog living in her apartment. The defendant did not give Mitchell permission to keep a dog in the apartment, but took no action against her for having one. In May, 2011, the defendant learned that the dog had attacked the visiting granddaughter of Robin Viveiros, who resided at 12 Woodlawn Circle, while the granddaughter was playing in Viveiros’ yard. Thereafter, on the evening of June 15, 2011, the plaintiff, who is not a tenant of the defendant, was walking on Woodlawn Circle. The plaintiff was accompanied by her two sisters, Claudette Leslie and Dotlyn Johnson. Mitchell‘s dog escaped from her apartment, ran onto the public street in front of 2 Woodlawn Circle, knocked the plaintiff down, and bit her on her hip, arm, elbow, and face, causing injuries. The defendant does not own the property located at 2 Woodlawn Circle.
On January 31, 2012, the plaintiff filed a complaint alleging, inter alia, that injuries and damages sustained by her as a result of the June 15, 2011 incident involving Mitchell‘s dog were caused by the negligence of the defendant.2 On July 1, 2013,
mon-law theory which would extend liability to a landlord who is not an owner or keeper of the dog, for harm caused by a tenant‘s dog who attacks a nontenant who is standing “just over the [landlord‘s] property line at the time [the nontenant] is bitten.”
On October 23, 2013, the court, Schuman, J., granted the defendant‘s motion for summary judgment and rendered judgment accordingly. The court issued a memorandum of decision in which it rejected the plaintiff‘s first argument, noting that “even if the Restatement theory applied to a dog bite case, the available evidence in the present case does not support the theory.”4 Similarly, the court was not persuaded by the arguments advanced by the plaintiff under a common-law theory of premises liability. The court reasoned that landlords have a common-law duty “to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control.” (Internal quotation marks omitted.) The court recognized, however, that this duty does not extend to “uncontrolled land such as neighboring property or public lands.” (Internal quotation marks omitted.) Because it remained undisputed that the attack took place off of the defendant‘s premises, the court concluded that the plaintiff could not prevail under a common-law theory of premises liability as a matter of law.
On January 21, 2014, the plaintiff filed the present appeal. The appeal form filed by the plaintiff indicates that she appeals from the “court‘s ruling on defendant‘s Motion for Summary Judgment and on plaintiff‘s Motions for Reargument.” Our careful review of the plaintiff‘s appellate brief, however, reveals that she has challenged only the legal issue involved in the court‘s granting of summary judgment. The plaintiff does not analyze, or even refer to, the court‘s denial of her two motions to reargue. Accordingly, we will consider her claim solely as a challenge to the court‘s granting of summary judgment.
I
On appeal, the defendant raises a challenge to the timeliness of the plaintiff‘s appeal from the court‘s granting of summary judgment. The defendant raises this issue for the first time in his appellate brief, having not earlier moved to dismiss as untimely any portion of the plaintiff‘s appeal. See
Initially, we address the defendant‘s argument that we should decline to review the appeal insofar as it was taken from the court‘s granting of summary judgment. For the reasons that follow, we agree that the plaintiff did not timely appeal from the court‘s granting of summary judgment rendered on October 23, 2013. Although the statutory time period for filing an appeal commences with the notice of a judgment;
Here, the time period in which to appeal from the court‘s granting of summary judgment began to run on October 23, 2013, the date of issuance of the judgment. Under
Having determined that the plaintiff‘s appeal from the court‘s granting of summary judgment was filed late, we now consider whether we will nevertheless exercise our discretion to reach the merits of the plaintiff‘s claim.
II
We first set forth the relevant standards that govern our review of a court‘s decision to grant a defendant‘s motion for summary judgment. ”
“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant‘s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . A material fact is a fact which will make a difference in the result of the case.” (Citations omitted; internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn. App. 778, 782-83, 57 A.3d 794 (2012).
We begin our analysis with a brief discussion of the relative principles of negligence and premises liability as applicable to landlords. “In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury.” LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “[T]he existence of a duty of care is a prerequisite to a finding of negligence . . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from
“The general rule is that a landlord has a duty reasonably to maintain property over which he exercises control. . . . That duty serves to protect entrants (invitees, licensees, trespassers) and tenants. The degree of care owed to an entrant depends on the entrant‘s status. . . . The duty does not, however, extend to uncontrolled land such as neighboring property or public lands.” (Citations omitted; footnote omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 260, 815 A.2d 263 (2003).
Our Supreme Court has explained further that, “[as] a matter of well settled common law, [i]t is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control. . . . The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe. . . . The prevailing common-law conception of the dangerous conditions implicated in this duty, moreover, certainly is capacious enough readily to encompass threats from animals, including known vicious dogs. . . . [A] landlord, in exercising the closely analogous duty to alleviate dangerous conditions in areas of a premises over which it retains control, must take reasonable steps to alleviate the dangerous condition created by the presence of a dog with known vicious tendencies in the common areas of the property.” (Citations omitted; internal quotation marks omitted.) Giacalone v. Housing Authority, 306 Conn. 399, 407-408, 51 A.3d 352 (2012). Guided by these principles, we turn to the specifics of the plaintiff‘s appeal.
As noted, the plaintiff claims that the court improperly concluded as a matter of law that a landlord who is aware of the dangerous propensities of a dog being kept by a tenant on the landlord‘s property may not be liable for injuries sustained by a nontenant who is bitten by the dog beyond the boundaries of the landlord‘s property. Specifically, the plaintiff argues that a landowner who is aware of a dangerous condition on his land, including dangers posed by vicious dogs, may be held liable under a negligence theory for resulting damage or injuries that occur off of the landowner‘s property so long as the resulting harm was reasonably foreseeable. The defendant responds that the court correctly held that the defendant did not have a duty to prevent his tenant‘s dog from harming a nontenant beyond the boundaries of his property, an area over which he did not exercise control. The defendant further argues that the court properly granted summary judgment in the present case because it is undisputed that the attack occurred off the premises owned by the defendant. We agree with the defendant.
After a careful review of the record, viewing the facts in the light most favorable to the plaintiff, we conclude that the trial court properly granted the defendant‘s motion for summary judgment. As we have stated, summary judgment is appropriate when there is no genuine issue of material fact. A material fact is one that will make a difference in the case. Fiorelli v. Gorsky, 120 Conn. App. 298, 305, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). The issue in the present case is whether the landlord was under a duty to prevent the alleged harm. Therefore, to answer the question presented, we must determine whether a genuine issue of material fact exists as to whether the incident
The defendant, as the moving party, discharged his initial burden on summary judgment by showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitles him to a judgment as a matter of law. In his affidavit supporting the motion for summary judgment, the defendant averred that he “owned a multifamily dwelling located at 6-12 Woodlawn Circle in East Hartford, Connecticut in June of 2011.” The parties do not dispute this fact.
During the summary judgment proceedings, the defendant presented the deposition testimony of the plaintiff and her two sisters. The defendant‘s counsel asked the plaintiff whether she “[had] any reason to disagree with what is reflected on the police report and the animal bite report.” The plaintiff responded: “No.” Leslie was similarly asked by the defendant‘s counsel whether she had any reason to disagree with the information in the police report, particularly with respect to the location of the incident. Leslie responded: “No.” Leslie testified further that the incident occurred on the sidewalk or street in front of “the next house” after the property owned by the defendant. Similarly, the defendant‘s counsel asked Johnson during her deposition if she had any reason to disagree with the following information: “The date of the incident is June 15, 2011. . . . [The] incident location is listed as 2 Woodlawn Circle in East Hartford, Connecticut.” Johnson responded: “No.” Johnson also testified that the dog ran out from a house that was behind her, and the attack occurred on the sidewalk in front of the next house on the left. In addition, the defendant introduced as an exhibit the East Hartford Police Department incident report (police report). In that report, the investigating officer indicated that “a dog belonging to . . . Mitchell broke free from its cable, ran down the road, and bit [the plaintiff] in front of 2 Woodlawn Circle.” The police report further provides that the “[i]ncident [l]ocation” was 2 Woodlawn Circle.
To oppose the motion for summary judgment successfully, the plaintiff was required to recite specific facts which contradict those stated in the defendant‘s affidavits and documents. See Hospital of Central Connecticut v. Neurosurgical Associates, P.C., supra, 139 Conn. App. 783. In her memorandum of law in support of her objection to the defendant‘s motion for summary judgment, the plaintiff argued that a genuine issue exists as to where the attack occurred because neither she nor her sisters could identify the site of the attack on a map provided by the defendant during their depositions.7
The inability of Leslie and Johnson to locate where the incident occurred on a
dant‘s property. It is undisputed that both of the plaintiff‘s sisters affirmed the information in the police report that the attack occurred in front of 2 Woodlawn Circle, a property which is not owned by the defendant. Further, the plaintiff does not dispute on appeal that the attack occurred off of the property owned by the defendant. In her appellate brief, the plaintiff raises the issue of whether a landlord may evade liability for harm when he negligently fails to take action to alleviate a known dangerous condition and the resulting harm from that negligence occurs “on adjoining land,” “off his property,” or “just over the [landlord‘s] property line.” Because the defendant did not owe a duty of care to the plaintiff beyond the boundaries of his premises, the court properly found that the defendant was entitled to judgment as a matter of law.
It is clear from our review of the record that the conclusion reached by the court—that the deposition testimony of the plaintiff and her two sisters does not create an issue of fact that is “genuine” as to the issue of control and, therefore, that the defendant was entitled to judgment as a matter of law—is legally and logically correct and is supported by the facts set out in the record. Accordingly, we conclude that the court properly granted the defendant‘s motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.