Charles v. Mitchell ( 2015 )

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DAWN CHARLES v. DENISE MITCHELL ET AL.
(AC 36461)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued February 10—officially released June 23, 2015
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
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 judg-
ment 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 land-
lord’s property. We affirm the judgment of the trial
court.
The court’s memorandum of decision reveals the fol-
lowing 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, the defendant filed a motion
for summary judgment pursuant to Practice Book § 17-
44, et seq. In an accompanying memorandum of law in
support of that motion, the defendant argued in relevant
part that there was no genuine issue of material fact
that the dog bite occurred off of the premises owned
or controlled by the defendant and, accordingly, under
a common-law theory of premises liability, he could
not be liable for the resulting injuries to the plaintiff.
The plaintiff advanced two theories of premises liability
against the defendant: (1) under § 379A of the
Restatement (Second) of Torts,3 and (2) under a com-
mon-law theory which would extend liability to a land-
lord 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 ren-
dered judgment accordingly. The court issued a memo-
randum 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 Simi-
larly, 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 recog-
nized, however, that this duty does not extend to
‘‘uncontrolled land such as neighboring property or pub-
lic 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 the-
ory of premises liability as a matter of law.
On November 8, 2013, the plaintiff filed a motion to
reargue the decision of the court granting the defen-
dant’s motion for summary judgment (first motion to
reargue), which the court denied on December 3, 2013.
On December 4, 2013, the plaintiff filed a motion to
reargue the denial of her first motion to reargue (second
motion to reargue). On December 16, 2013, the court
denied the plaintiff’s second motion to reargue. There-
after, on December 30, 2013, the plaintiff filed a notice of
intent to appeal from the decision of the court granting
summary judgment and its subsequent denial of both
motions to reargue. See Practice Book § 61-5 (a).5 On
January 6, 2014, the defendant objected to the plaintiff’s
notice of intent to appeal.
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 Practice Book § 66-8. The
defendant argues that, because the plaintiff did not
timely appeal from the summary judgment ruling, the
sole issue before this court is whether the court abused
its discretion in denying the plaintiff’s first motion to
reargue. Specifically, the defendant contends that
where an appeal is timely only as to the denial of a
motion that would ‘‘render the judgment . . . ineffec-
tive’’ under Practice Book § 63-1, our appellate courts
will review only the denial of the § 63-1 motion and not
the underlying judgment. At oral argument before this
court, the plaintiff acknowledged that her appeal was
untimely, but urged this court to nevertheless consider
whether summary judgment was properly granted
because the defendant did not file a motion to dismiss
the appeal pursuant to Practice Book § 66-8.
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 judg-
ment. 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; Practice
Book § 63–1 (a); ‘‘[i]f a motion is filed within the appeal
period that, if granted, would render the judgment . . .
ineffective . . . a new twenty day period . . . for fil-
ing the appeal shall begin on the day that notice of the
ruling is given on the last such outstanding motion
. . . .’’ Practice Book § 63–1 (c) (1). Furthermore, our
rules of practice expressly characterize ‘‘reargument of
the judgment or decision’’ as a ‘‘[motion] that, if granted,
would render a judgment . . . ineffective . . . .’’ Prac-
tice Book § 63–1 (c); see also Practice Book § 11–11
(motion to reargue may extend appeal period). Our
Supreme Court has noted that ‘‘a new appeal period
commences when the trial court issues a decision on
a motion to reargue.’’ Nelson v. Dettmer, 305 Conn. 654,
676, 46 A.3d 916 (2012).
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 § 63-1 (c) (1), the filing of the first motion to
reargue tolled the appeal period, and a new twenty day
appeal period in which the plaintiff could appeal from
the grant of summary judgment and the denial of the
first motion to reargue arose when the court denied
the first motion to reargue on December 3, 2013. The
plaintiff’s appeal from these rulings, filed on January
21, 2014, was therefore untimely.
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 plain-
tiff’s claim. Practice Book § 63-1 (a) provides in relevant
part: ‘‘Unless a different time period is provided by
statute, an appeal must be filed within twenty days of
the date notice of the judgment or decision is given.
. . .’’ Our appellate courts have recognized that the
twenty day time limitation imposed by § 63-1 is not
subject matter jurisdictional and, accordingly, we have
discretion to hear a late appeal. See Nicoll v. State, 38
Conn. App. 333, 335–36, 661 A.2d 101 (1995); see also
Practice Book § 60-2 (5) (providing that court may order
that party, for good cause shown, may file late appeal
unless court lacks jurisdiction to allow late filing). ‘‘The
rationale for this rule is that the twenty day period
established by § [63-1] is not a constitutionally or legis-
latively created condition precedent to the jurisdiction
of [our appellate courts]. The source of the authority
for the adoption of the rule lies in the inherent right
of constitutional courts to make rules governing their
procedure. . . . Such time constraints, which are cre-
ated by the courts, can be waived by the courts.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Ambroise v. William Raveis Real Estate, Inc., 226
Conn. 757, 763, 628 A.2d 1303 (1993). Although the pre-
sent appeal was, in part, untimely, the defendant waived
any objection on that ground by failing to challenge the
timeliness of the appeal until he filed his appellate brief.6
We, therefore, will consider the merits of the plaintiff’s
appeal from the court’s rendering of summary
judgment.
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. ‘‘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. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . .
[I]ssue-finding, rather than issue-determination, is the
key to the procedure. . . . [T]he trial court does not
sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Citations omitted; internal
quotation marks omitted.) Himmelstein v. Windsor,
116 Conn. App. 28, 42–43, 974 A.2d 820 (2009), aff’d,
304 Conn. 298, 39 A.3d 1065 (2012).
‘‘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 spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents. . . . The opposing
party to a motion for summary judgment must substanti-
ate its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing 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. Neurosur-
gical 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 situa-
tion 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 defen-
dant.’’ (Internal quotation marks omitted.) Sweeney v.
Friends of Hammonasset, 140 Conn. App. 40, 46–47,
58 A.3d 293 (2013).
‘‘The general rule is that a landlord has a duty reason-
ably to maintain property over which he exercises con-
trol. . . . 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 uncon-
trolled 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 foreseeabil-
ity of harm resulting from a failure to exercise reason-
able care to keep the premises reasonably safe. . . .
The prevailing common-law conception of the danger-
ous conditions implicated in this duty, moreover, cer-
tainly 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. Hous-
ing Authority, 306 Conn. 399, 407–408, 51 A.3d 352(2012). Guided by these principles, we turn to the specif-
ics of the plaintiff’s appeal.
As noted, the plaintiff claims that the court improp-
erly 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 land-
owner 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 cor-
rectly 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 fur-
ther 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, sum-
mary 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
occurred at a location over which the defendant exer-
cised control.
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 dwell-
ing 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 infor-
mation 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 deposi-
tion 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 inci-
dent report (police report). In that report, the investigat-
ing 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 suc-
cessfully, the plaintiff was required to recite specific
facts which contradict those stated in the defendant’s
affidavits and documents. See Hospital of Central Con-
necticut 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 depo-
sitions.7
The inability of Leslie and Johnson to locate where
the incident occurred on a map does not contradict
their deposition testimony that the attack occurred on
the street or sidewalk down the street from the defen-
dant’s property. It is undisputed that both of the plain-
tiff’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. Fur-
ther, the plaintiff does not dispute on appeal that the
attack occurred off of the property owned by the defen-
dant. 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 prop-
erty,’’ 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 enti-
tled 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.
1
Denise Mitchell is also a defendant in this case. Because she is not a
party to this appeal, we refer in this opinion to Sitaras as the defendant.
2
In her complaint, the plaintiff also alleged that the defendant was liable
under our dog bite statute, General Statutes § 22-357. Section 22-357 (a)
(Rev. to 2013) provides in relevant part: ‘‘If any dog does any damage to
either the body or property of any person, the owner or keeper . . . 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, tor-
menting 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.’’ Public
Acts 2013, No. 13-223 amended the statute to provide that a plaintiff may
recover for damages to a companion animal, as defined in General Statutes
§ 22-351a.
Thereafter, the defendant argued that because he was not the ‘‘owner or
keeper’’ of the dog, he could not be liable under § 22-357 for injury sustained
by the plaintiff. After the defendant filed his motion for summary judgment,
the plaintiff abandoned her action against the defendant under § 22-357
and under any negligence theory premised upon the assumption that the
defendant was an ‘‘owner or keeper’’ of the dog.
3
Section 379A of the Restatement (Second) of Torts provides: ‘‘A lessor
of land is subject to liability for physical harm to persons outside of the
land caused by activities of the lessee or others on the land after the lessor
transfers possession if, but only if, (a) the lessor at the time of the lease
consented to such activity or knew that it would be carried on, and (b) the
lessor knew or had reason to know that it would unavoidably involve such
an unreasonable risk, or that special precautions necessary to safety would
not be taken.’’ 2 Restatement (Second), Torts § 379A (1965).
4
The plaintiff’s argument under § 379A was premised upon the fact that
the dog was a mixed breed pit bull. Although the court ‘‘[accepted] the
notion . . . that a pit bull dog is known for its ill-tempered and ferocious
tendencies,’’ the plaintiff did not present any evidence that the defendant
knew the breed of the dog at the time he first saw it and, specifically, that
he knew that the dog was a mixed breed pit bull. Because the plaintiff did
not present any evidence that the defendant knew of the dog’s dangerous
propensities at that time, she could not defeat summary judgment under
this theory. On appeal, the plaintiff has failed to brief her claim that the
defendant is liable under § 379A and we therefore consider it abandoned.
See, e.g., Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 398 n.1,
349 A.2d 838 (1974).
5
Practice Book § 61-5 (a) provides in relevant part: ‘‘An appeal of a judg-
ment described in Sections 61-2 or 61-3 may be deferred until the judgment
that disposes of the case for all purposes and as to all parties is rendered.
In the following two instances only, a notice of intent to appeal must be
filed in order to defer the taking of an appeal until the final judgment that
disposes of the case for all purposes and as to all parties is rendered:
‘‘(1) when the deferred appeal is to be taken from a judgment that not
only disposes of an entire complaint, counterclaim or cross complaint but
also disposes of all the causes of action brought by or against a party or
parties so that that party or parties are not parties to any remaining com-
plaint, counterclaim or cross complaint; or
‘‘(2) when the deferred appeal is to be taken from a judgment that disposes
of only part of a complaint, counterclaim, or cross complaint but neverthe-
less disposes of all causes of action in that pleading brought by or against
a particular party or parties.
‘‘In the event that the party aggrieved by a judgment described in (1) or
(2) above elects to defer the taking of the appeal until the disposition of
the entire case, the aggrieved party must . . . within twenty days after
issuance of notice of the judgment described in (1) or (2) above, file in the
trial court a notice of intent to appeal the judgment . . . .
‘‘When such a party has filed a notice of objection to the deferral of the
appeal, the appeal shall not be deferred, and the appellant shall file the
appeal within twenty days of the filing of such notice of objection.’’
6
Because the defendant did not file a motion to dismiss, this court did
not hear any arguments from the plaintiff as to whether she had good cause
for filing the appeal almost one month late. See Practice Book § 60-2 (5).
7
The trial court did not address two additional arguments advanced by
the plaintiff in her memorandum of law in support of her objection to the
defendant’s motion for summary judgment. First, the plaintiff argued that
the testimony of the responding animal control officer as to the location of
the incident was unreliable because it was based upon information relayed
to him by the communications department of the East Hartford police and
the officer who responded to the scene. We are not persuaded by this
argument because the animal control officer responded to the incident and
made his own evaluation at the scene.
Second, she contends that her ‘‘[testimony] that she was walking on
Woodlawn Circle in front of 6 Woodlawn Circle’’ presents a triable issue of
fact as to where the attack occurred. Our review of the plaintiff’s deposition
testimony does not reveal such a statement. Accordingly, we are not per-
suaded by these arguments.