Coppedge v. Travis , 187 Conn. App. 528 ( 2019 )

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CAMILA COPPEDGE v. CURTIS TRAVIS
(AC 40787)
Elgo, Bright and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendant dog owner,
pursuant to statute ([Rev. to 2013] § 22-357), for personal injuries she
sustained when the defendant’s dog bounded toward her, causing her
to become startled and frightened, and to trip and fall as she tried to
avoid the dog’s advance. After a trial to the court, the court rendered
judgment in favor of the plaintiff, from which the defendant appealed
to this court. Held that the trial court properly determined that § 22-
357 applied to the facts of this case: although that court did not use
the words mischievous or vicious in describing the dog’s behavior, it
implicitly found that the dog’s actions were not passive, innocent or
involuntary, as the plaintiff testified that the defendant’s unleashed dog
bounded toward her in an exuberant manner, which fit within the defini-
tion of mischievous behavior; moreover, the court’s finding on the ele-
ment of proximate cause was not clearly erroneous, as the court found
that the cause of the plaintiff’s injuries was that the dog, with no leash
attached, bounded ahead of the defendant, which caused the plaintiff
to become startled and frightened, and to trip and fall as she tried to
avoid the dog, and that the dog charging toward the plaintiff set in
motion a chain of events that brought about her injuries, and the plain-
tiff’s testimony that the dog stood over her after she fell supported a
reasonable inference that the dog was close enough to the plaintiff when
she fell as to be the proximate cause of the plaintiff’s fall.
Argued December 5, 2018—officially released January 29, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of an attack by a dog owned by the
defendant, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Pittman, J.;
judgment for the plaintiff, from which the defendant
appealed to this court. Affirmed.
Kelly Grey, for the appellant (defendant).
Katherine L. Matthews, for the appellee (plaintiff).
Opinion
BRIGHT, J. The defendant dog owner, Curtis Travis,
appeals from the judgment of the trial court, rendered
after a trial to the court, in favor of the plaintiff, Camila
Coppedge, in this tort action, commenced pursuant to
General Statutes (Rev. to 2013) § 22-357,1 commonly
known as the dog bite statute. On appeal, the defendant
claims that (1) ‘‘[t]he evidence supports a finding that
. . . § 22-357 does not apply as the dog’s conduct was
innocent,’’ and (2) ‘‘[t]he evidence does not support a
finding of proximate cause.’’ We affirm the judgment
of the trial court.
On the basis of the evidence presented at trial, the
trial court found the following facts, which it set forth
in a July 18, 2017 memorandum of decision. ‘‘On April
14, 2013, the plaintiff, who worked as a personal care
assistant to elderly and disabled people, was carrying
certain items into a motel room in East Hartford from
a motor vehicle. The defendant, who was a long distance
truck driver, was playing fetch with his dog on a grassy
area next to the motel building. The defendant’s dog
was a one year old medium-sized Labradoodle named
Lilly, with whom the defendant sometimes traveled. At
the end of their exercise, the defendant and Lilly
intended to return to the motel room where they were
staying. Lilly, with no leash attached, bounded toward
the motel ahead of the defendant.
‘‘The plaintiff saw Lilly coming, became startled and
frightened, and tripped and fell as she tried to avoid
the dog’s advance. Lilly never actually made physical
contact with the plaintiff, but came close and stood
over the plaintiff as the plaintiff lay on the ground.
‘‘The defendant attempted to help the plaintiff up
off the ground but words were exchanged about the
presence of the dog. The defendant put Lilly in his motel
room, away from the plaintiff, and helpfully called 911
for an ambulance.
‘‘It was obvious that the plaintiff was injured. She
had fallen backwards with her right arm and wrist under
her body as she landed. The plaintiff was in great pain.
She was taken by ambulance to Manchester Memorial
Hospital where she was examined, x-rayed, and treated.
Her right wrist was fractured in two places. The plaintiff
was discharged from the hospital with a cast on her
right wrist.’’
The court further found ‘‘that the exuberant,
unleashed Lilly was a proximate cause of the plaintiff
falling and injuring herself. There is no dispute that the
defendant was, and still is, the owner and keeper of
the dog. The court finds that the plaintiff has met her
burden of proving all of the essential elements of a
claim for damages under . . . § 22-357.’’ Thereafter, on
the basis of the evidence submitted on the question
award, subject to any applicable collateral source
reduction: ‘‘[F]or physical and emotional pain and suf-
fering, for loss of use of right hand and wrist for a
temporary period during treatment and rehabilitation,
and for current 8 [percent] permanent partial impair-
ment which the court finds is related to this incident.
Total: $45,000.’’ This appeal followed.
The defendant claims that (1) ‘‘[t]he evidence sup-
ports a finding that . . . § 22-357 does not apply as the
dog’s conduct was innocent,’’ and (2) ‘‘[t]he evidence
does not support a finding of proximate cause.’’ We are
not persuaded.
We first address our standard of review. The defen-
dant contends that ‘‘the standard of review in this case
is limited to the standard of plain error.’’ We disagree
with this assertion and conclude that the plain error
doctrine is not implicated in this case.2 Rather, the
defendant’s claims involve a challenge to the court’s
factual findings. Accordingly, we review the defendant’s
claims under the clearly erroneous standard of review.3
‘‘On appeal, it is the function of this court to deter-
mine whether the decision of the trial court is clearly
erroneous. . . . This involves a two part function:
where the legal conclusions of the court are challenged,
we must determine whether they are legally and logi-
cally correct and whether they find support in the facts
set out in the memorandum of decision; where the fac-
tual basis of the court’s decision is challenged we must
determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous. . . . In a case
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . On appeal, we will give
the evidence the most favorable reasonable construc-
tion in support of the verdict to which it is entitled.
. . . A factual finding may be rejected by this court
only if it is clearly erroneous. . . .
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Citations omitted; internal quotation marks omitted.)
Murphy v. Buonato, 42 Conn. App. 239, 242, 679 A.2d
441 (1996), aff’d, 241 Conn. 319, 696 A.2d 320 (1997).
Section 22-357 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 occa-
sioned 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. . . .’’
‘‘Specifically . . . § 22-357 imposes strict liability on
the owner or keeper of a dog for harm caused by the
dog, with limited exceptions. [The] principal purpose
and effect [of § 22-357] was to abrogate the common-
law doctrine of scienter as applied to damage by dogs
to persons and property, so that liability of the owner
or keeper became no longer dependent upon his knowl-
edge of the dog’s ferocity or mischievous propensity;
literally construed the statute would impose an obliga-
tion on him to pay for any and all damage the dog
may do of its own volition.’’ (Footnote omitted; internal
quotation marks omitted.) Giacalone v. Housing
Authority, 306 Conn. 399, 405, 51 A.3d 352 (2012); see
Granniss v. Weber, 107 Conn. 622, 625, 141 A. 877
(1928).
The defendant first claims that § 22-357 does not
apply to this case because the dog’s conduct was inno-
cent. He argues that under Atkinson v. Santore, 135
Conn. App. 76, 78–79, 41 A.3d 1095, cert. denied, 305
Conn. 909, 44 A.3d 184 (2012) (plaintiff, who claimed
that she may have been exposed to rabies virus from
defendant’s dogs, could not sustain cause of action
because statute does not extend to damage caused by
dog’s merely passive, innocent, and involuntary behav-
ior), a dog must be engaged in vicious or mischievous
conduct for its owner to be held strictly liable for its
actions. We conclude that the court properly applied
§ 22-357 to the facts of this case. Although the court
did not use the word mischievous or vicious in describ-
ing the dog’s behavior, it found that the ‘‘exuberant’’
dog ‘‘bounded’’ toward the motel, where the plaintiff
was removing things from her vehicle, which frightened
the plaintiff. Accordingly, it implicitly found that the
dog’s actions were not passive, innocent or involuntary.
Merriam-Webster’s Collegiate Dictionary (10th Ed.
2001) defines ‘‘mischievous’’ as: ‘‘Harmful, injurious
. . . able or tending to cause annoyance, trouble, or
minor injury . . . irresponsibly playful . . . .’’ The
fact that the unleashed dog bounded toward her in an
exuberant manner fits within the definition of mischie-
vous. Accordingly, the defendant’s claim that the dog’s
actions were innocent is without merit.
The defendant’s second claim contests the court’s
finding on the element of proximate cause, which we
also review under the clearly erroneous standard. See
Cammarota v. Guerrera, 148 Conn. App. 743, 755, 87
A.3d 1134 (‘‘The question of proximate causation . . .
belongs to the trier of fact because causation is essen-
tially a factual issue. . . . It becomes a conclusion of
law only when the mind of a fair and reasonable [per-
son] could reach only one conclusion; if there is room
for a reasonable disagreement the question is one to
be determined by the trier as a matter of fact.’’ [Internal
quotation marks omitted.]), cert. denied, 311 Conn. 944,
90 A.3d 975 (2014).
The defendant argues that there was no evidence as
to how far away the dog was from the plaintiff at the
time she fell. He contends: ‘‘Certainly, if there [were]
one hundred yards between [the dog] and the [plaintiff]
when [the plaintiff] became startled and frightened, the
causal nexus between the plaintiff’s fall and the dog’s
conduct [would be] too attenuated to justify the imposi-
tion of liability.’’ (Internal quotation marks omitted.)
We disagree.
‘‘The liability of the owner or keeper extends to all
damage to the person which is proximately occasioned
by the dog. . . . The statute is drastic, and its purport
is that a person who owns a dog does so at his peril.
. . . The active efficient cause that sets in motion a
train of events which brings about a result without the
intervention of any force started and working actively
from a new and independent source is the proximate
cause.’’ (Citations omitted.) Fellows v. Cole, 4 Conn.
Cir. Ct. 677, 680, 239 A.2d 56 (1967).
In Malone v. Steinberg, 138 Conn. 718, 723, 89 A.2d
213 (1952), our Supreme Court explained that for a
defendant to be liable under the dog bite statute, it
was sufficient for the plaintiff to establish that ‘‘the
menacing attitude of the dog frightened the plaintiff
and caused him to fall . . . even though it did not
appear that the dog actually knocked him down.’’ In
that case, the parties had conceded that the dog did
not come into actual contact with the plaintiff. Id. The
court explained that contact was unnecessary under
the statute and that ‘‘[t]he liability of a keeper extends
to all damage to the person which is proximately occa-
sioned by the dog.’’4 Id.
In the present case, the court specifically found that
the proximate cause of the plaintiff’s injuries was that
the dog, ‘‘with no leash attached, bounded toward the
motel ahead of the defendant. The plaintiff saw Lilly
coming, became startled and frightened, and tripped
and fell as she tried to avoid the dog’s advance. Lilly
never actually made physical contact with the plaintiff,
but came close and stood over the plaintiff as the plain-
tiff lay on the ground.’’
The plaintiff testified that as she was getting things
out of her vehicle to bring into her daughter’s motel
room, which was approximately four feet from the vehi-
cle, she saw the defendant and his unleashed dog across
the yard. She further testified that the dog then
‘‘start[ed] galloping. Coming, coming, coming towards
me. So [she] was coming. I was scared. So I was trying
to turn and run, and that’s when I fell on my hand on
the ground. And the dog . . . came over to me.’’ The
plaintiff was afraid that the dog was going to bite her
as she quickly ran toward her. She then indicated that
the dog charging toward her was what caused her to
fall.
The plaintiff was asked if she had spoken with the
East Hartford Police Department about the incident.
She responded that she had spoken with them and
informed them that ‘‘the dog was charging at me, and
I was scared, and I was trying to run and I tripped and
fell. And [the officer] asked me [if] the dog [was] on a
leash, and I said no.’’ She then indicated that she fell
backward while trying to avoid the dog. The plaintiff
was asked by her attorney whether the dog could have
been going someplace else. The plaintiff responded:
‘‘No, [she] was coming. [She] was coming straight where
I was, and when I was on the ground, [she] was right
there.’’ She also testified that after she fell to the ground,
the dog ‘‘came close to me. . . . The only thing [was
that the dog] just was over me.’’
On the basis of this evidence, the court reasonably
could have found that the dog charging toward the
plaintiff set in motion a chain of events that brought
about her injuries. See Fellows v. Cole, supra, 4 Conn.
Cir. Ct. 680; see also Malone v. Steinberg, supra, 138
Conn. 723. Furthermore, the plaintiff’s testimony that
the dog stood over her after she fell supported a reason-
able inference that the dog was close enough to the
plaintiff when she fell as to be the proximate cause of
the plaintiff’s fall. Accordingly, the court’s finding of
proximate cause was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 2013) § 22-357 was the version of the statute
in effect when this incident occurred. The statute subsequently was amended
by No. 13-223 of the 2013 Public Acts, which became effective October 1,
2013, and was amended several times thereafter. Hereinafter, all references
to § 22-357 are to the 2013 revision unless otherwise indicated.
2
‘‘The plain error doctrine, which is codified at Practice Book § 60-5, is
an extraordinary remedy used by appellate courts to rectify errors committed
at trial that, although unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party. . . . [I]t is a doctrine that this court invokes
in order to rectify a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, nonetheless requires
reversal of the trial court’s judgment, for reasons of policy. . . . In addition,
the plain error doctrine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial proceedings. . . . Plain
error is a doctrine that should be invoked sparingly. . . . Implicit in this
very demanding standard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the reversal of the judg-
ment under review. . . . [Thus, an appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Internal quotation marks omitted.) Perricone
v. Perricone, 292 Conn. 187, 218–19, 972 A.2d 666 (2009).
3
The plaintiff argues that we should decline to review the defendant’s
claims because this case does not implicate the plain error doctrine, and
the plaintiff does not request review under any other doctrine or standard
of review. Because the parties have briefed the issues, our record is adequate,
and we understand the defendant’s claims and arguments, in the exercise
of our discretion, we will review his claims under the appropriate standard
of review.
4
The defendant attempts to distinguish this case from Malone because
there was no evidence that his dog was ‘‘barking, growling, salivating, or
baring her teeth.’’ Such behavior was not necessary, however, to prove that
the dog acted mischievously. In fact, the defendant’s counsel conceded
during oral argument before this court that the defendant would be liable
under the statute if the dog playfully had come into contact with the plaintiff
and knocked her down.