Weihing v. Preto-Rodas , 170 Conn. App. 880 ( 2017 )

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KRISTINA WEIHING v. ROBERT J.
PRETO-RODAS ET AL.
(AC 37310)
Alvord, Mullins and Sullivan, Js.
Argued January 5—officially released February 28, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Michael Hartmere, judge trial referee.)
Dana P. Lonergan, with whom, on the brief, was
Thomas J. Weihing, for the appellant (plaintiff).
Cynthia M. Garraty, for the appellees (defendants).
Opinion
PER CURIAM. The plaintiff, Kristina Weihing,
appeals from the judgment of the trial court, rendered
after a jury trial, in favor of the defendants, Robert J.
Preto-Rodas and Margaret Preto-Rodas, in this action
brought pursuant to General Statutes § 22-357.1 On
appeal, the plaintiff claims that the trial court improp-
erly (1) admitted photographs of the defendants’ dog
and (2) denied her motion to set aside the jury’s verdict
and for a new trial. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts from the testimony at trial. On June 27, 2011, the
plaintiff was walking her three dogs, two sixty pound
pit bull mixes, Angelica and Roscoe, and a one hundred
pound German shepherd-Akita mix, Max, on leashes in
front of the defendants’ house. The defendants’ neigh-
bor observed Roscoe defecating on the defendants’
lawn. While the plaintiff was bent over picking up the
feces, the defendants’ dog, Boo Boo, a twelve pound
corgi-Chihuahua mix, came around to the front yard of
the defendants’ house from the backyard. The plaintiff
noticed Boo Boo and attempted to pull Angelica, Ros-
coe, and Max away without success. Then, one of the
dogs barked and Angelica, Roscoe, and Max began pur-
suing Boo Boo and tossing him about the defendants’
yard. As Angelica, Roscoe, and Max pursued Boo Boo,
the plaintiff was pulled to the ground by her leashed
dogs and sustained injures as a result. Eventually,
Angelica and Roscoe used their mouths to grab Boo
Boo by the head and back and, prior to being rescued
by one of the defendants, Boo Boo sustained injuries
to his neck and abdomen.
On June 23, 2013, the plaintiff filed a complaint
against the defendants alleging that Boo Boo, ‘‘who was
unleashed, suddenly ran from the defendants’ premises
and attacked and bit [her] dogs, causing [her] to fall
forcibly to the ground, thereby causing [her] to sustain
and suffer severe injuries and losses.’’ On October 2,
2013, the defendants filed an answer, in which they
alleged, as a special defense, that ‘‘the [p]laintiff,
through the actions of her dogs, was teasing, tormenting
and abusing [Boo Boo].’’ On July 28, 2014, the plaintiff
filed a motion in limine to preclude photographs of Boo
Boo or Boo Boo’s injuries. On July 29, 2014, the court,
after a hearing, denied the plaintiff’s motion, agreeing
with the defendants that the photographs of Boo Boo
were probative of the defendants’ special defense.
A two day jury trial commenced that same day. The
only evidence the plaintiff presented that Boo Boo was
the proximate cause of her injuries was her own testi-
mony that, while walking her dogs along the sidewalk,
an unleashed Boo Boo ran out of the defendants’ yard,
started barking at her dogs, and tried to nip and bite
them, which forced her dogs to act to protect them-
selves.2 On July 30, 2014, the jury returned a verdict in
favor of the defendants. In response to two separate
interrogatories, the jury indicated that (1) the plaintiff
did not prove that Boo Boo’s actions were the proximate
cause of her injuries and (2) the photographs of Boo
Boo’s injuries were evidence of teasing, tormenting,
or abusing.
On August 11, 2014, the plaintiff filed a motion to set
aside the verdict and for a new trial, arguing that the
photographs of Boo Boo’s injuries were admitted
improperly into evidence and that she was prejudiced
because the jury, through its answers to the interrogato-
ries, indicated that it relied on the photographs to find
that the defendants proved their special defense. The
court denied the plaintiff’s motion, reasoning that the
jury concluded that she failed to prove an element of
her cause of action, i.e., causation, and, therefore, the
evidence of Boo Boo’s injuries did not have to be consid-
ered by the jury to return a verdict in favor of the
defendants.
On appeal, the plaintiff claims that the court improp-
erly (1) admitted the photographs of Boo Boo’s injuries
and (2) denied her motion to set aside the jury’s verdict
based on the improper admission of those photographs.
We conclude that the court properly denied the plain-
tiff’s motion to set aside the jury’s verdict because the
jury could have reasonably concluded that the plaintiff
failed to prove that Boo Boo was the proximate cause
of her injuries. Accordingly, we need not reach the issue
of whether the photographs of Boo Boo’s injuries were
erroneously admitted into evidence or whether the
court erroneously denied the plaintiff’s motion to set
aside the verdict based on that purported evidentiary
error.
‘‘[T]he role of the trial court on a motion to set aside
the jury’s verdict is not to sit as a seventh juror, but,
rather, to decide whether, viewing the evidence in the
light most favorable to the prevailing party, the jury
could reasonably have reached the verdict that it did.
. . . A verdict is not defective as a matter of law as
long as it contains an intelligible finding so that its
meaning is clear. . . . A verdict will be deemed intelli-
gible if it clearly manifests the intent of the jury. . . .
In reviewing the action of the trial court in denying the
motions . . . to set aside the verdict, our primary con-
cern is to determine whether the court abused its discre-
tion and we decide only whether, on the evidence
presented, the jury could fairly reach the verdict [it]
did.’’ (Internal quotation marks omitted.) Arnold v.
Moriarty, 140 Conn. App. 872, 879, 60 A.3d 317 (2013).
Based on our review of the evidence at trial in the
present case, the jury could have reached, fairly and
reasonably, a verdict for the defendants based on the
plaintiff’s failure to meet her burden of proof. Section
22-357 renders the owner or keeper of a dog strictly
liable to third parties for injuries that the dog caused
through its own ‘‘volitional conduct that is either vicious
or mischievous rather than innocent or involuntary.’’
Atkinson v. Santore, 135 Conn. App. 76, 81, 41 A.3d
1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012).
The only evidence presented that Boo Boo caused the
fracas with Angelica, Roscoe, and Max, and therefore
proximately caused the plaintiff’s injuries, was the
plaintiff’s testimony that Boo Boo attacked her dogs
first. Based on the jury’s answer to the first interroga-
tory and its verdict in favor of the defendants, it is
reasonable to conclude, however, that the jury discred-
ited that testimony. ‘‘It is not our position to dictate
which witnesses the jury should credit; [t]he trier [is]
free to accept or reject, in whole or in part, the testi-
mony offered by either party.’’ (Internal quotation
marks omitted.) Arnold v. Moriarty, supra, 140 Conn.
App. 880.
Accordingly, the court did not err in denying the
plaintiff’s motion to set aside the jury’s verdict based on
an evidentiary claim relating to the defendants’ special
defense. See id., 879–80 (trial court properly denied
plaintiff’s motion to set aside verdict where jury reason-
ably could have found that plaintiff failed to prove dam-
ages, an essential element of her cause of action).
The judgment is affirmed.
1
General Statutes § 22-357 provides in relevant part: ‘‘If any dog does any
damage to . . . the body . . . of any person, the owner or keeper . . .
shall be liable for the amount of such damage, except when such damage
has been occasioned to the body . . . 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. . . .’’
2
Conversely, Robert Preto-Rodas testified that Boo Boo was a rescue dog
and that their dog trainer believed he was most likely a victim of abuse.
Robert further testified that although Boo Boo occasionally would bark at
people, he was ‘‘very skittish’’ and would avoid coming near other people
or dogs because he was afraid of them. Margaret Preto-Rodas similarly
testified that although Boo Boo would bark, he was a skittish rescue dog.