Sen v. Tsiongas ( 2019 )

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ISHA SEN v. KOSTAS TSIONGAS
(AC 40963)
Prescott, Elgo and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, who was the
landlord and owner of the apartment building in which she lived, for
negligence in connection with personal injuries the plaintiff sustained
when she was bitten in the building’s common stairway by a dog owned
by one of the other tenants. Specifically, the plaintiff alleged, inter alia,
that the defendant was negligent in failing to maintain the building
premises in a reasonably safe condition by allowing the dog’s owner to
keep a vicious animal and failing to investigate the animal’s history of
viciousness. The defendant moved for summary judgment on the ground
that he did not have any knowledge of the alleged vicious propensities
of the dog. The trial court granted the defendant’s motion for summary
judgment and rendered judgment thereon, from which the plaintiff
appealed to this court. Held that the trial court improperly rendered
summary judgment in favor of the defendant, as there was a disputed
issue of material fact as to whether the defendant should have known
that the dog had vicious propensities: on the basis of the plaintiff’s
averments that the dog acted viciously toward her when she approached
the building and displayed vicious tendencies that were visible to all
those who observed it, a jury could reasonably infer that the defendant,
who came to the building on a weekly basis, would likely have observed
the dog’s aggressive tendencies, and the defendant’s claim that there
was no dispute as to a material fact was further undermined by the
existence of additional circumstantial evidence indicating that the defen-
dant should have known that the dog had vicious propensities, as there
was evidence that the dog, prior to biting the plaintiff, scratched the
plaintiff’s husband and bit the son of the dog’s owner, that the dog’s
owner spoke openly about how the dog had been used as bait in dog
fighting, and that the defendant had constructive knowledge of the dog’s
vicious propensities in the form of the defendant’s own testimony that
the dog once barked at him through the window while he was mowing
the lawn and that he observed the dog pull toward him when the dog
was walked on a leash; moreover, although the defendant testified that
he never saw the dog display vicious tendencies, the trial court was
presented with conflicting facts and was required to make a credibility
determination, which the court was not permitted to make at the sum-
mary judgment stage, and, thus, the existence of those contradictory
accounts of the dog’s behavior thwarted summary judgment.
(One judge concurring separately)
Argued March 19—officially released August 27, 2019
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of New Britain, where the
court, Swienton, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Reversed; further proceedings.
Matthew C. Eagan, with whom was James P. Sexton,
for the appellant (plaintiff).
Audrey B. Staropoli, for the appellee (defendant).
Opinion
PELLEGRINO, J. In this premises liability action, the
plaintiff, Isha Sen, appeals from the summary judgment
rendered in favor of the defendant, Kostas Tsiongas.
On appeal, the plaintiff claims that the trial court erred
in rendering summary judgment in favor of the defen-
dant, who was the landlord of the apartment building
in which the plaintiff lived, because there was a dis-
puted issue of material fact as to whether the defendant
should have known that the dog of one of the other
tenants had vicious propensities. We agree with the
plaintiff and, accordingly, reverse the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. At the relevant times, the plaintiff
resided in the second floor apartment of a two unit
apartment building at 396 Washington Street in Bristol
(building). The defendant was the owner and landlord
of the building. On September 18, 2015, at approxi-
mately 3:30 p.m., a dog that was owned by the building’s
first floor tenant bit the plaintiff in the building’s com-
mon stairway. The plaintiff was taken by ambulance to
the University of Connecticut Medical Center in Farm-
ington, where she was treated for her injuries, which
included lacerations to and numbness of her right hand.
On May 4, 2016, the plaintiff commenced the present
action. In her operative complaint, the plaintiff alleged,
inter alia, that the defendant was negligent in failing to
maintain the building premises in a reasonably safe
condition by allowing the first floor tenant to keep a
vicious animal, failing to investigate the animal’s history
of viciousness, and failing to enforce a provision of the
lease that prohibited pets on the premises.
On July 13, 2017, the defendant filed a motion for
summary judgment, which was accompanied by an affi-
davit in which he averred in relevant part: ‘‘At no time
prior to September 18, 2015, did I have any knowledge
of the alleged vicious propensities of the dog involved
in the incident. . . . At no time prior to September 18,
2015, did I observe the dog involved in the incident
engage in vicious behavior, nor did [the dog’s owner]
or anyone else inform me that the dog had a propensity
toward viciousness.’’
On August 30, 2017, the plaintiff filed an objection
to the defendant’s motion for summary judgment. In
support of her objection, the plaintiff attached an affida-
vit in which she averred in relevant part: ‘‘[The first
floor tenant] spoke openly about how the [dog] had
been used as bait in dog fighting. . . . It is my opinion
that the [dog] exhibited vicious qualities and that these
qualities were apparent to any reasonable person who
observed the dog. . . . The [dog] demonstrated aggres-
sion by barking, growling, and trying to escape the first
floor porch whenever I walked up the stairs. . . . In
June of 2015, the [dog] broke out of the porch and
advanced toward my husband, trying to bite him. The
[dog] managed to scratch him before it was brought
under control. . . . Before I was attacked, [the first
floor tenant] informed me that the [dog] had bitten his
seven year old son.’’
In support of her objection to the defendant’s motion
for summary judgment, the plaintiff also submitted a
transcript of her deposition of the defendant, which
was taken on July 31, 2017. During the deposition, the
following exchange occurred between the plaintiff’s
counsel and the defendant:
‘‘Q. You have a rule [in your lease agreement] that
says, ‘You will not have pets.’ Why do you have that rule?
‘‘A. Well, I have that rule more like for . . . pets
cause damage . . . sometimes.
‘‘Q. What kind of damage can pets cause?
‘‘A. Well, going to the bathroom in the house, this
and that, but if somebody asks me, can I get [a pet], or
if [they] have a pet, and they’re a good tenant . . . I’d
say okay. You know.
***
‘‘Q. What kind of damage [other than property dam-
age] is that?
‘‘A. Well, I mean, if a dog or a cat scratches, you
know, another human, yes.
‘‘Q. And do you have that rule to protect other
humans?
‘‘A. No. It’s mostly, I put it in, like I said, for more
damage.
***
‘‘Q. All right. And can you tell me about [the first
floor tenant] asking you about getting a dog?
‘‘A. Yes. He asked me, he wanted to get a dog from
The Humane Society and, then I said, okay.
***
‘‘Q. Do you know approximately when [the first floor
tenant] got the dog?
‘‘A. Probably 2014 . . . .
‘‘Q. And . . . did you see the dog on the property?
‘‘A. Well, I had seen the dog on the property when
they had it out, walking the dog, but I [had] seen the
dog inside when I’d go in to do any repairs in the apart-
ments or collect rent.
***
‘‘Q. Approximately how often were you at the [build-
ing] after they got the dog in 2014?
‘‘A. Well, I don’t know. Probably, I’d say, once a
week. . . .
‘‘Q. Can you tell me about the dog, about what the
dog was like?
‘‘A. Well, like I said, when I was there, I would go into
their apartment and the dog wouldn’t bark, or growl,
or anything like that to me. I’d see the dog outside when
they . . . [had] it on the leash. You know, it pulled,
like you know, of course, dogs come and want to see
you, but that’s about it. I mean, otherwise . . . one
time when I was cutting the grass, the dog barked at
me through the window, but all dogs do that, you know.’’
On September 5, 2017, the court held a hearing on
the defendant’s motion for summary judgment. On Sep-
tember 28, 2017, the court granted the defendant’s
motion for summary judgment and rendered judgment
in favor of the defendant. In its memorandum of deci-
sion, the court stated: ‘‘The plaintiff has not put forth
any evidence that the [defendant] had actual or con-
structive knowledge of the dog’s alleged vicious propen-
sities prior to the alleged attack.’’ This appeal followed.
Additional facts will be set forth as necessary.
The plaintiff claims that the trial court erred in render-
ing summary judgment in favor of the defendant
because there was a disputed issue of material fact as
to whether the defendant should have known that the
dog had vicious propensities. Specifically, the plaintiff
argues that the evidence, viewed in the light most favor-
able to her as the nonmoving party, demonstrates the
existence of a disputed factual issue. We agree with
the plaintiff.
‘‘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 judg-
ment 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 sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving 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 demon-
strates 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 estab-
lish the existence of a material fact and, therefore, can-
not 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 omit-
ted.) Anderson v. Dike, 187 Conn. App. 405, 409–10,
202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d
1245 (2019).
The following legal principles are also relevant to the
plaintiff’s claim. ‘‘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 con-
trol. . . . 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 con-
ception 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 condi-
tions 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 prop-
erty.’’ (Citations omitted; internal quotation marks omit-
ted.) Giacalone v. Housing Authority, 306 Conn. 399,
407–408, 51 A.3d 352 (2012).
‘‘We note . . . that our conclusion that the tradi-
tional common-law duty of landlords to keep common
areas in a reasonably safe condition applies to dangers
posed by known dangerous dogs accords with the iden-
tical conclusion reached by courts in numerous other
jurisdictions. See, e.g., Fouts ex rel. Jensen v. Mason,
592 N.W.2d 33, 40 (Iowa 1999) (‘When the landlord
knows or has reason to know of the existing dangerous
condition, the landlord—to avoid liability—must act to
protect those using the common area. . . . [H]ere,
although she may not have had control over the dog,
[the landlord] knew or had reason to know that the dog
posed a danger to those in the common backyard. She
therefore had a duty to take reasonable precautions to
protect those lawfully in the common area.’ . . .)
. . . .’’ (Citations omitted; emphasis added.) Giacalone
v. Housing Authority, supra, 306 Conn. 409–11.
The test for common-law premises liability looks to
whether the landlord had actual or constructive knowl-
edge of the dangerous condition on the premises. See,
e.g., Noebel v. Housing Authority, 146 Conn. 197, 201,
148 A.2d 766 (1959) (‘‘the test is: would the ordinarily
prudent [person] in the position of the defendants,
knowing what they knew or should have known, antici-
pate that harm of the general nature of that suffered
was likely to result’’ [emphasis added]). Thus, in order
to prevail on his motion for summary judgment, the
defendant in the present case was required to demon-
strate the absence of any genuine issue of material fact
as to whether he knew, or should have known, of the
dog’s vicious propensities. Giacalone v. Housing
Authority, supra, 306 Conn. 409–10.
In her affidavit, the plaintiff averred that the dog
‘‘demonstrated aggression by barking, growling, and
trying to escape the first floor porch whenever [she]
walked up the stairs.’’ Additionally, the plaintiff averred:
‘‘It is my opinion that the [dog] exhibited vicious quali-
ties and that these qualities were apparent to any rea-
sonable person who observed the dog.’’1 On the basis
of the plaintiff’s averments that the dog acted viciously
toward her when she approached the building and dis-
played vicious tendencies that were visible to all those
who observed it, a jury could reasonably infer that the
defendant, who came to the building on a weekly basis,
would likely have observed the dog’s aggressive tenden-
cies. See Tuccio Development, Inc. v. Neumann, 111
Conn. App. 588, 594, 960 A.2d 1071 (2008) (at summary
judgment stage, ‘‘court must view the inferences to be
drawn from the facts in the light most favorable to the
party opposing the motion’’ [internal quotation marks
omitted]); Solesky v. Tracey, 198 Md. App. 292, 325, 17
A.3d 718 (2011) (‘‘[T]here was uncontroverted evidence
that the landlord had visited the property and had seen
these particular pit bulls [firsthand]. In light of a neigh-
bor’s testimony that ‘anybody’ who walked near these
dogs would experience aggression from the dogs, the
jury could have rationally inferred that the landlord,
too, observed vicious behavior when she . . . visited
the premises.’’), aff’d on other grounds, 427 Md. 627,
50 A.3d 1075 (2012), superseded by statute as stated in
Phillips v. J Bar W, Inc., Docket No. 1167, 2017 WL
4876762, *4 (Md. Spec. App. October 27, 2017). Although
a jury could reasonably infer that the defendant had the
opportunity to observe the dog’s aggressive tendencies,
the defendant testified that he never saw the dog display
vicious tendencies. Thus, the trial court in the present
case was presented with conflicting facts and was
required to make a credibility determination. Because
the court is not permitted to make such a credibility
determination at the summary judgment stage, the exis-
tence of these contradictory accounts of the dog’s
behavior thwarts summary judgment. See, e.g., Straw
Pond Associates, LLC v. Fitzpatrick, Mariano & San-
tos, P.C., 167 Conn. App. 691, 710, 145 A.3d 292 (‘‘In
summary judgment, the court’s role is not to weigh the
credibility of the parties, which falls within the province
of the finder of fact. . . . When a court, in ruling on
a motion for summary judgment, is confronted with
conflicting facts, resolution and interpretation of which
would require determinations of credibility, summary
judgment is not appropriate.’’ [Citation omitted.]), cert.
denied, 323 Conn. 930, 150 A.3d 231 (2016).
The defendant’s argument that there was no dispute
as to a material fact before the trial court is further
undermined by the existence of additional circumstan-
tial evidence indicating that the defendant should have
known that the dog had vicious propensities. ‘‘Circum-
stantial evidence is, of course, also available on the
question of notice or knowledge of the specific defects
. . . .’’ Cruz v. Drezek, 175 Conn. 230, 235–36, 397 A.2d
1335 (1978). In the present case, there was evidence
that, prior to biting the plaintiff on September 18, 2015,
the dog scratched the plaintiff’s husband and bit the
first floor tenant’s son.
Moreover, the plaintiff averred that the dog’s owner
‘‘spoke openly about how the [dog] had been used as
bait in dog fighting.’’ Although this evidence came in
through the plaintiff’s affidavit, dismissing these state-
ments out of hand amounts to a credibility determina-
tion and, therefore, runs afoul of the well established
rule that ‘‘[w]hen deciding a summary judgment motion,
a trial court may not resolve credibility questions raised
by affidavits or deposition testimony submitted by the
parties.’’ Doe v. West Hartford, 328 Conn. 172, 197, 177
A.3d 1128 (2018); see id., 196 (concluding that trial
court erred when it dismissed ‘‘out of hand’’ deposition
testimony that created genuine issue of material fact).
Moreover, there was evidence that the defendant had
constructive knowledge of the dog’s vicious propensit-
ies in the form of the defendant’s own testimony that
the dog once barked at him through the window while
he was mowing the lawn and that he observed the dog
pull toward him when the dog was walked on a leash.
Although the defendant described these behaviors as
things ‘‘all dogs’’ do, this evidence, in conjunction with
the evidence described in the preceding paragraphs of
this decision, could reasonably be viewed by the jury
as indicating that the defendant had constructive notice
of the dog’s vicious propensities. On the basis of the
foregoing, we conclude that there is a disputed issue
of material fact and, therefore, that summary judgment
was improper.2
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion, ELGO, J., concurred.
1
We do not believe that this statement constitutes inadmissible evidence.
Although a lay witness is generally not permitted to give opinion testimony,
‘‘[t]he use of such words as ‘I think,’ ‘probably,’ or ‘it is my impression’ are
not uncommon in lay testimony and do not make such evidence opinion
unless it is clearly so from all the circumstances.’’ E. Prescott, Tait’s Hand-
book of Connecticut Evidence (6th Ed. 2019) § 7.1.2, p. 434. Because evi-
dence is to be construed in favor of the nonmoving party in considering a
motion for summary judgment, and because the aforementioned principle
is relevant to this issue, we conclude that, although the plaintiff prefaced
her statement by stating ‘‘[i]t is my opinion,’’ the statement constituted a
factual assertion regarding the dog’s behavior rather than an opinion.
2
Because we reached this conclusion without considering the breed of
the dog, we need not address the defendant’s argument that the trial court
should have considered the fact that the dog was a pit bull in assessing
whether the defendant had constructive notice of the dog’s viciousness. We,
therefore, see no reason to determine the breed issue and do not agree with
Judge Prescott’s concurrence that the breed of the dog should be considered
in assessing premises liability, in the absence of the articulation of such a
rule by our Supreme Court or legislature.